Asia: Human Rights Mechanisms

Printer-friendly versionSend to friend

The Sixth Assembly
Regional Networking

Asia: Human Rights Mechanisms

Organizers:
 
Moderator:
Egoy Bans – Initiatives for International Dialogue (The Philippines)
 
Rapporteur:;
Yuyun Wahyuningrum – Oxfam-Hong Kong (Indonesia)
 
Presenters: 
Yap Swee Seng – Forum Asia (Malaysia)
Rafendi Djamin – HRWG (Indonesia)

Adilur Khan – Odhikar (Bangladesh)

The establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) is said to be one of the small victories of civil society engagement with ASEAN. Human rights and civil society participation were not on the agenda of the member states of ASEAN for more than 35 years, from 1967 to 2002. The discussion in ASEAN on human rights emerged when its Charter was being drafted. In 2007, under the network of the Task Force on ASEAN and Human Rights, civil society decided to engage with the inter-governmental processes of ASEAN in a more systematic and coordinated way to push for an effective, credible, and independent ASEAN human rights body.

The discussion of human rights in ASEAN began with a focus on protecting women and children in the future of ASEAN. In fact, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified by all 10 member states of ASEAN.  The discussion on the rights of women and children had been placed under social-cultural cooperation, but was later moved to political and security cooperation.
 
In 2009, while taking note of the development in the region of establishing a regional human rights mechanism like AICHR, the World Forum for Democratization in Asia (WFDA) stressed that AICHR can be the vehicle to implement universal democratic principles, which is essential for sustaining democracy in Asia. To do so, the WFDA identified eight actions that had to be taken within the next two years (the list is available on the WFDA Web site).
 
The presenters in this workshop shared the experiences of civil society activists appointed to be government representatives to AICHR from Indonesia and Thailand. The representatives come from civil society, but they were selected through a transparent process to be AICHR representatives. This raised the question whether it is healthy for the promotion and protection of human rights for civil society activists to represent governments in AICHR. The effectiveness of having civil society activists in the inter-governmental institution, although yet to be seen, could largely depend on how civil society effectively uses the mandates of AICHR to uphold human rights in the region.
 
What we learned from the process within these three years of engagement in developing the AICHR is that the willingness of ASEAN to engage with civil society on the promotion of human rights is a reflection of democratic maturity at the national level among countries in the region.  It is imperative, therefore, to improve democracy at the national level, because the stronger is at that level, the stronger will be the regional institution.
 
AICHR has had many flaws from its birth, such as a lack of independence, the requirement of consensus in decision making, more of a mandate to promote human rights than to protect them, selective NGO participation, a lack of resources, and an inability to receive cases and act to address the issues they raise. In the first meeting of the AICHR, in Jakarta in 2010, some organizations tried to bring human rights cases to the attention of the representatives, but the cases were rejected due to the absence of individual complaints as required in the Rules of Procedure.
 
Challenges
 
While welcoming the establishment of the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC) in Hanoi, Vietnam, on 7 April 2010, to complement the regional human rights architecture in ASEAN, the participants in the workshop listed the following challenges that will be faced by AICHR:
 
  • With the limitations on civil society in six countries in ASEAN, the work to improve the performance of the AICHR will be very difficult.
  • Most ASEAN member states are still hostile to civil society participation and have a different perspective on the word "people."
  • Although there is a mandate for AICHR to draft the ASEAN Declaration on Human Rights, there is a concern that the process of drafting the Declaration will exclude civil society and will thus water down the universal standards of human rights.
  • Civil society participation very much depends on the chair of ASEAN, which is a precarious situation, since it does not guarantee a people-oriented ASEAN process.
  • ASEAN has been operating as a club of dictators who make decisions without consulting the people, which means the people in ASEAN countries know little about this body, which makes decisions that have far-reaching impact on their daily life.
Recommendations
 
To continue to advance the agenda of AICHR, civil society should include demands for:
 
  • A more transparent and participatory process of selecting AICHR representatives;
  • The inclusion of a mandate to protect, not just promote, human rights, including complaint procedures, preventative procedures, public hearings, and protection of human rights defenders and victims working with the AICHR mechanisms;
  • Working relationships with other human rights mechanisms; and
  • Institutionalized civil society participation.
In addition, civil society should implement actions as follows:
 
  • Annually monitor and report on the performance of the AICHR;
  • Influence the process of drafting the Rules of Procedures, including its final outcome;
  • Influence the process of drafting the ASEAN Human Rights Declaration;
  • Identify and submit cases to the AICHR;
  • Organize capacity-building activities and raise awareness of AICHR’s mandate and functions;
  • Establish and maintain inter-regional networking.
The South Asian Association for Regional Cooperation (SAARC), which includes eight countries, has a social charter of principles and values of democracy and human rights and a convention against trafficking in women and children. However, the participants in the workshop were not optimistic about SAARC upholding human rights because of a lack of political will among the member states, the conflict between India and Pakistan, and its obscure decision-making process (if one country does not appear for a decision-making meeting, it will not take place). This way of working has depleted enthusiasm among civil society organizations to engage with SAARC. Nonetheless, participants urged that some groups should take the lead on initiating engagement.
 
Additional Recommendations
 
  • Explore the possibility of creating a mechanism through which civil society in other global regions can be involved. For example, a Brazilian organization has been granted observer status by the African Union.  This has been seen as a good practice to accelerate the process of transparency among regional systems and their cooperation.
  • Any stakeholders, including civil society, should be mindful of procedures, since ASEAN respects protocols.
  • In addition to the relationship between regional and national mechanisms, there should be interaction and cooperation between regional and global human rights mechanisms.
  • While encouraging South Asia to have a sub-regional human rights mechanism in place, as in Southeast Asia, there is also the possibility of having one broad Asian Human Rights Mechanism. In fact, there are existing regional architectures already in place, such as ASEAN Plus Three, ASEAN Plus Six, the East Asia Community, etc.
  • The European Union process, which started from 10 member countries, but then expanded to 47 as of now, may be relevant.
Establishing a court in AICHR is necessary and has been one of civil society’s main objectives in its campaign since 2008. However, the response has been that ASEAN governments are not ready for such a mechanism. Nevertheless, this can be a future goal of civil society as it advocates for a possible optional protocol on a regional human rights court.