The future of human rights in Asean

Posted by VITIT MUNTARBHORN under Opinions on 2 September 2007

Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University. This speech was delivered at the "International Workshop on Forty Years of Asean'', organised by the Institute of Security and International Studies, Bangkok, Aug 28, 2007."

The Association of Southeast Asian Nations is at an apt crossroads for self-reflection. Looking back 40 years, it is possible to generalise that perhaps the most singular success of this Association has been to bring peace and stability to the region.

It should not be forgotten that several of the current members of Asean were, in fact, in conflict with each other prior to the establishment of Asean. Those which joined the organisation later were very much part of the precarious scenario _ the war in Indochina _ under the cloud of the Domino Theory, whereby it was feared that the old-timers would be overcome by the newcomers. Yet, Asean has survived and has grown surprisingly to accommodate different interests and ideologies. It is living the reality of ''unity in diversity''. From a human rights perspective, the record can possibly be described as ''diversity in unity'' with a varied history. The political physiognomy of Asean countries lends itself to a range of different colours with significant impact on human rights in the region. There is the world's biggest Muslim country and now a key democracy in Asean. There are those countries flourishing with a high standard of living: a testament to the enjoyment of economic, social and cultural rights. By contrast, there are those areas in great need of development. There is the presence of various non-democratic systems that pose a challenge to people's participation in realising civil and political rights. There is the ex-democracy previously under a democratically-elected government that had a poor human rights record, ultimately overturned by a coup, now charting its course post-referendum on its new constitution. There are the semi- or demi-democracies that are based on an almost one-party state with human rights records of a variegated hue.

Amidst this scenario, there are key developments of note. First, Asean countries are now participating more actively at the international level in the human rights arena. This is seen, for example, in their competition to become members of the new United Nations Human Rights Council. There are possibilities for their active role in other institutions emerging from UN reforms, such as the UN Peace-building Commission. Second, all Asean countries are now party to the Convention on the Rights of the Child and the Convention for the Elimination of All Forms of Discrimination against Women. Several countries are signing up to a number of other international treaties. For example, the cabinet recently gave the go-ahead for Thailand's ratification of the anti-torture convention.

Third, Asean countries participate in periodic UN-organised consultations on regional human rights arrangements for the Asian region. These are premised upon four entry points for regional cooperation, namely, the setting up of national human rights institutions, the promotion of human rights education, the formulation of national human rights action plans, and the realisation of economic, social and cultural rights and the right to development. Fourth, four Asean countries have established national human rights commissions: Indonesia, Thailand, the Philippines and Malaysia. And there is the possibility of a fifth: a future commission in Cambodia.

Fifth, national constitutions are referring more directly to human rights and their linkage with the international setting. Various national laws, policies and practices are becoming more friendly to human rights, such as the reform of the juvenile justice system where-by instead of sending children to prison for crimes, alternative forms of rehabilitation using community intervention and participation are being introduced so as to enable the children to have a second chance and avoid their stigmatisation.

Perhaps the most interesting debate at present affecting the future of Asean concerns the possibility of the organisation establishing a human rights mechanism in the region, as an inter-governmental organ to promote and protect human rights. It is well known that Asia in general, and Asean in particular, do not have such mechanism. This is unlike Europe, the Americas and Africa, which have mechanisms such as regional human rights commissions and/or regional human rights courts backed by regional human rights treaties to fill in gaps where there is an absence of national remedies, even to the extent of having regional judicial decisions with binding force.

There are some encouraging signals as follows. First, the emergence of the Asean Security Community, the Asean Economic Community and the Asean Social Cultural Community as the three pillars of Asean integration makes room for human rights on some fronts. The Programme of Action on the Asean Security Community, for instance, mentions the possible establishment of an Asean Women's and Children's Rights Commission.

Second, national human rights commissions in Asean recently signed a Memorandum of Understanding to cooperate on human rights-related activities. This may cover such areas as human rights education and measures to counter human trafficking.

Third, for the past few years, Asean governments have been supportive of informal dialogue with civil society to highlight human rights concerns as well as the modalities for setting up a regional human rights mechanism. The whole process is facilitated by the non-governmental Working Group for an Asean Human Rights Mechanism. Under this umbrella, the most recent dialogue was in Manila in 2007, and a follow-up dialogue will soon be hosted by Singapore for the first time.

Fourth, there have been notable governmental declarations from the region with human rights implications. These include the 2004 Declaration against Trafficking in Persons particularly Women and Children, the 2004 Declaration on the Elimination of Violence against Women in Asean, and the 2007 Declaration on the Protection of the Rights of Migrant Workers. The most recent declaration on migrant workers underlines human rights from the perspective of the obligations of receiving states and those of sending states in regard to migrant workers. The declaration establishes a kind of monitoring mechanism by providing for an annual report on the implementation of the declaration to be submitted to the Asean Summit (through the Asean ministerial meeting). An Asean committee on migrant workers was also agreed upon at the 2007 Asean ministerial meeting to assist the implementation process, inspired by the catchphrase, ''One Caring and Sharing Community.''

Fifth, there is the challenge of formulating an Asean charter as a constitution for the organisation. In the drafting of this charter, due for completion this year, the door is open to the possible insertion of human rights through a variety of ways and means. At one level, human rights might be referred to in the early sections of such charter as part of the underlying purposes and principles of the document. The pulse today is that the charter will refer to the setting up of an Asean human rights ''body'', although the details will have to be elaborated upon in another document, possibly under the title ''Asean Human Rights Commission.''

The advocacy of the need for Asean to become a rule(s)-based organisation rather than a discretion-based organisation paves the way to a greater sense of state commitment and responsibility on the enforcement of human rights. This may be nurtured progressively to enable those which are ready to participate fully in the setting up of such a body to sign on expeditiously, while enabling the others to join later on an X minus Y basis.

Whatever body is established ultimately, it should be guided by the need to abide by international law and international human rights standards, especially the instruments to which Asean countries already agree, such as the two conventions mentioned above, the 1948 Universal Declaration of Human Rights and the 1993 Vienna Declaration and Programme of Action of the World Conference on Human Rights.

While it is probably premature to advocate a body with broad-ranging powers along the lines of those mechanisms found in other regions of the world, the future Asean human rights body should at least be targeted to promoting and protecting human rights in a comprehensive manner _ covering civil, political, economic, social and cultural rights. It should provide a value-added component to complement national systems which are currently comprised of formal checks and balances such as courts and/or national human rights commissions and informal elements such as media and civil society activism. Preferably, it should have the power to advise and make recommendations to states on effective preventive and remedial measures and the required follow-up. Its composition should follow UN principles in regard to the need to be independent and pluralistic. It could also help in drafting an Asean instrument, such as a comprehensive Declaration or Convention on Human Rights, if required.

On another front, there may be additional space to influence other organs of Asean whose work may have impact on human rights, such as the summits of the heads of government and the various Asean councils to be attached to the three Asean communities. This may be done by means of various parallel civil society forums which can provide input for the deliberations of those Asean organs, as a People's Track.

In the final analysis, there remains a basic aspiration behind Asean's progression towards the future: the key is the effective implementation of human rights, side by side with democracy, peace and sustainable development, at the national level, for which no regional body, organ or instrument can be a substitute.

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BANGKOK POST The future of human rights in Asean 1 September 2007

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