ASEAN must boost protection work

A key achievement of the Charter of the Association of Southeast Asian Nations (Asean) in 2007 was to open the door to the establishment of a regional human rights body – an Asean human rights mechanism.

A key achievement of the Charter of the Association of Southeast Asian Nations (Asean) in 2007 was to open the door to the establishment of a regional human rights body – an Asean human rights mechanism. Subsequently, the Asean Intergovernmental Commission on Human Rights (AICHR) was set up pursuant to the Terms of Reference (TOR), adopted by Asean in 2009.

Now, some five years later, its work is being reviewed, and the Asean Foreign Ministers are empowered to adjust the powers of AICHR as appropriate. The key challenge today is to enable it to do more human rights “protection” work, in addition to “promotion”.

Human rights promotion primarily concerns education, information development and awareness raising, such as through curriculum development, training and research programmes. By contrast, human rights protection invites more action: it calls for channels for the complainants to have their cases heard, with adequate redress; for investigations and fact-finding in relation to cases of concern; for field visits to assess the ground realities with a view to proposing solutions; and for preventive measures to preempt transgressions.

Of course, no country has a perfect human rights record. In such context, the consideration of those human rights situations is a normal process internationally, as human rights are a legitimate concern of all countries. This happens on a daily basis in the United Nations (UN), as witnessed by human rights’ discussions in the UN Human Rights Council and Security Council. This is part of international jurisdiction and law to help victims and does not conflict with the principle of non-interference in the internal affairs of a state. State sovereignty implies the responsibility to respect and protect human rights and fundamental freedoms.

How has AICHR performed until now? Most of its activities have been on human rights promotion, even though its TOR provides leeway for protection activities. AICHR has supported several training programmes and research activities and related seminars, such as a recent meeting on the issue of business and human rights. Much energy was spent on drafting the Asean Human Rights Declaration (AHRD) finalised in 2013. It should not be forgotten also that the Cha-am Hua Hin Declaration, adopted by the Asean Leaders in 2009, underlined that the review of AICHR is to further develop mechanisms on protection and promotion of human rights, the word “protection” being placed intentionally and emphatically before “promotion”.

In essence, the lacuna today is that AICHR has not yet agreed to receive complaints from victims, nor undertaken investigations on key situations, even though its TOR opens the door to these possibilities — if the TOR is interpreted purposively.

The TOR uses gentle language to enable AICHR to be creative, if there is the will to do so. For instance, the TOR states that the mandate of AICHR includes the power “to develop strategies for the promotion and protection of human rights” (article 4.1); “to engage in dialogue and consultation with other Asean bodies – including civil society organisations and other stakeholders, as provided for in Chapter V of the Asean Charter” (article 4.8); “to consult, as appropriate, with other national, regional and international institutions and entities” (article 4.9); “to obtain information from Asean Member States on the promotion and protection of human rights” (article 4.10); to perform tasks assigned by the Asean Foreign Ministers (article 4.14). The TOR also empowers AICHR to organise meetings at a venue agreed upon by the members of AICHR (article 6.4). Impliedly, this enables the body to undertake on-site visits, if it wishes to do so.

In the next phase, it is thus important for AICHR to interpret its powers progressively to strengthen its protection role. The most pivotal concern now is to establish a method to receive complaints on serious transgressions (“communications procedure”). This is subject to various admissibility criteria, which are universally accepted, such as the principle that local remedies (such as the local courts) need to be exhausted first, before having access to AICHR. AICHR should thus clarify its protection role by making an explicit General Observation or Comment on how it views its protection role.

AICHR is also invited to organise periodic human rights assessment conferences, possibly biennially, open to governments, other stakeholders and international organisations, revolving between Asean member countries so that key themes and situations can be discussed, with recommendations for follow-ups. This could be called the “Asean Protection Track” (APT).

Respectfully, Asean Foreign Ministers and the Asean Heads of Government Summit are also invited to consider the possibility of a declaration to reinforce the protection functions of AICHR. The declaration could enunciate the possibility that the “Asean Foreign Ministers and or Summit can, as appropriate, refer cases of concern to AICHR for deliberation and request it to make recommendations for the protection of human rights accordingly”. It can also state explicitly that AICHR can take communications on human rights situations where the local remedies have been exhausted.

Another “protection” element is the need for Asean countries to ratify and implement international human rights treaties to ensure that national practices are consonant with international norms. Auspiciously, all Asean countries are now parties to the international conventions on women’s rights and child rights, and more countries are now signing up to the convention on the rights of persons with disabilities. Other conventions, such as the covenants on civil and political rights, and on economic, social and cultural rights, and the convention against torture, await universal ratification by Asean countries.

The above commitments would bode well for the target of Asean Community-building by 2015, of which the well-being of the population, anchored on human rights protection, is the primordial concern for all.