regional limitations and universality of human rights norms

Regional Limitations and Universality of

Human Rights Norms in ASEAN

Yuyun Wahyuningrum, MA,

Senior Advisor on ASEAN and Human Rights,

Human Rights Working Group (HRWG) Indonesia,

E-mail: [email protected]

Introduction: Regionalism & Human Rights Systems

Regionalism has become a valuable feature in the last coupe of years, including in international human rights law. Regional human rights systems such as in the Americas, Europe and Africa and sub-regional Southeast Asia, share to some extent in the same origins as its global system, the United Nations.

At the same time there is a danger that states who wish to escape global scrutiny could submit themselves to less exacting regional human rights monitoring and then claim that they should not be subjected to further international supervision.

The question arises whether global and regional systems for international human rights monitoring strengthen, or weaken, each other. They have the potential to break away from the Universalist aspirations by posing different and lower standards of protection. Regional systems are seen to play a complementary role to the global system.

The article explores the level of differences among regional human rights systems against the international one, including in ASEAN

Each regional system will be assessed based on the following:

1. the role of human rights in the principles and objectives of the ‘mother/regional organization’ of which the human rights systems form part;

2. human rights and the membership criteria of these ‘mother/regional organizations’;

3. the relevant human rights instruments;

4. human rights supervisory bodies and their mandates;

5. criteria for appointment of members of supervisory bodies

6. supervision of implementation of judgments;

7. complementarity between the regional and the global systems;

8. available resources

Organization of American States

(OAS) Principles and Objective: The Charter of the Organization of American States

(OAS) was adopted in 1948. Human rights are not integral part of the purpose and principles of the OAS, but recognizes the Inter-American Commission on Human Rights as an organ of the OAS.

Membership criteria: All 35 independent states of the Americas are members of OAS.

Human rights instruments: The American Declaration of the Rights and Duties of Man was adopted in April 1948. The American Convention on Human Rights was adopted in 1969. The OAS has adopted two protocols to the American Convention, dealing with economic, social and cultural rights, and the death penalty respectively.

Supervisory bodies and their mandates: The Inter-American Commission on Human Rights was established through a resolution of the OAS in 1959. The Inter-American Court of Human Rights was established in 1979. One of the mandates of the Inter-American Commission is to undertake on-site visits

which result in the publication of country reports on the human rights situation in the country under investigation. The Commission further has a number of thematic rapporteurships, similar to the special rapporteurs of the United Nations and shall hear individual complaints alleging violations of the Convention or the American Declaration. The Commission may adopt precautionary measures ‘in serious and urgent cases’

Organization of American States

(OAS) Appointment and criteria for appointment of members of the

supervisory bodies: The seven members of IACHR are elected in their personal capacities by the OAS General Assembly from a list of candidates nominated by member states. The members are required to be ‘persons of high moral character and recognized competence in the field of human rights’. The independence of the two institutions is clearly a stated objective.

Supervision of implementation of judgments: According to article 65 of the American Convention, the Court shall inform the OAS General Assembly about non-compliance with its judgments. The Assembly has rarely taken action in this regard and it has been left to the Court itself to develop a system of supervising compliance with its judgments.

Complementarity: Inter- American Commission and Court will not consider a complaint that has served before a UN treaty body.

Resources: The Inter-American Commission has been allocated around US$ 3.5 million annually from the OAS budget and receives around US$ 3 million in contributions from donors. The Court has a budget of approximately US$ 1.5 million allocated by the OAS. In 2008 the Commission had 70 staff members and the Court had 21 staff members

The Council of Europe

Principles and objectives: The Statute of the Council of Europe (CoE) was adopted in 1949. Human rights are part of the purpose of the CoE. Human rights concerns are the main reason for its existence.

Membership criteria: The human rights record of the state concerned is one of the key factors that determine whether a state may join the CoE, and it may also lead to its expulsion. Membership of CoE is by invitation only and requires that the state is willing and able to fulfill the obligations.

Human rights instruments: Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) on 4 November 1950. According to the preamble of the European Convention, the European system was established ‘to take the first steps for the collective enforcement of certain rights stated in the Universal Declaration’. The stated objective is therefore that the regional system will serve as a mechanism to enforce global norms.


Supervisory bodies and their mandates: European Commission of Human Rights to serve as a screening mechanism and could take the case to the European Court of Human Rights. Later the Commission was abolished through Protocol 11 to the Convention, which entered into force in 1998. The Commission and Court were replaced by a new permanent Court. Since then individuals in the 47 member states can access the Court directly.

In 1999 the first CoE Commissioner for Human Rights was appointed. The Commissioner works through country visits, thematic recommendations, awareness raising and assistance to national human rights structures. Compliance with the European Social Charter is monitored by the European Committee of Social Rights. The Committee of Ministers of the CoE and the Parliamentary Assembly also play a role in the state reporting system which is the main method of monitoring compliance with the European Social Charter. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides for an innovative monitoring system with preventative visits to places of detention.At the heart of the CoE system consequently is its protective mandate, based on individual complaints, although this is supplemented by the promotional function of for example the Commissioner for Human Rights.

Appointment and criteria for appointment of members of the supervisory bodies: The number of judges of the European Court of Human Rights is equal to the number of states parties to the European Convention which, as noted above, is currently 47.46 The judges of the Court are elected by the CoE Parliamentary Assembly from a list of three candidates nominated by the member state concerned.


Supervision of implementation of judgment: According to article 46(2) of the European Convention, the Court shall transmit its final judgment to the Committee of Ministers of the CoE ‘which shall supervise its execution’. The European system of supervision is undoubtedly the most effective of the three regional systems, and there is a high level of compliance, at least in respect of the payment of compensation, by member states.

Complementarity: The Court will not consider a case which has ‘already been submitted to another procedure of international investigation or settlement and contains no relevant new information. Some member states of the Council of Europe have entered reservations

Resources: The budget of the European Court is provided for under the general budget of the CoE. The allocation for the Court in 2008 was a massive 53.46 million Euros,51 around 25% of the CoE budget. At the end of 2008 the registry of the Court had 626 staff members. In terms of its case load but also its resources, the European system is in a different league from the other two regional systems.

African Union

Principles and objectives: The Charter of the Organization of African Unity (OAU) was adopted in 1963. One of its purposes: the promotion of ‘international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights’. The AU replaced the OAU in 2002. The Constitutive is replete with

references to human rights and the objectives of the AU include to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’.

Membership criteria: There are no human rights criteria for a state to become a member of the AU. However, ‘sanctions’ can be adopted against a member state which ‘fails to comply with the decisions and policies of the Union’.

Human rights instruments: The African Charter on Human and Peoples’ Rights (African Charter), adopted in 1981. The Charter entered into force in 1986 and has been ratified by all 53 member states of the African Union.

African Union

Supervisory bodies and their mandates: The African Commission monitors compliance with the African Charter through state reporting; complaints by states, individuals or NGOs; special rapporteurs and working groups. The Commission also adopts resolutions interpreting provisions of the Charter, and may indicate provisional measures ‘to avoid irreparable damage being caused’. Protocol on the African Court on Human and Peoples’ Rights was

adopted in 1998. Individuals do not have the right to approach the Court directly unless the member state has made a special declaration to this effect, in which case the individual can seemingly bypass the Commission.

There is a committee monitoring compliance with the African Charter on the Rights and Welfare of the Child

Appointment and criteria for appointment of members of the supervisory bodies: The eleven members of the Commission and the eleven members of the Court are nominated by member states and elected by the AU Assembly.

African Union

Supervision of implementation of judgments: the Executive Council of the AU, shall be notified of the judgments of the Court and monitor their execution. Since no decision has been handed down by the Court, it remains to be seen how this will be applied in practice. There is not an established tradition of supervision of the decisions of the Commission.

Complementarity: The Commission will not consider a case which is pending before or has been dealt with by another international human rights body.

Resources: There has been an increase in the resources available for the Commission in 2007.

Some similarities across regional

systems The promotion and protection of human rights should be

recognized as an objective and guiding principle of the ‘mother organization’ in its founding treaty.

Membership to the ‘mother organization’ should be conditioned upon observance of human rights and democracy criteria, in terms of the admission and possible expulsion of member states or lesser forms of sanction.

There should be an effective mechanism in the ‘mother organization’ to follow up the implementation by states of decisions by the human rights supervisory bodies.

A regional human rights system should be created by a treaty to which states that are members of the relevant regional organization can become party. The treaty should clearly set out the applicable rights catalogue, either in original terms or by reference to other international instruments, that does not lower the global standards of human rights protection and if possible poses higher standards.


systems The regional human rights systems are also subject to other

international human rights supervisory systems, which should be geared towards complementarity. A regional system should not consider cases that have already been decided on the global level.

Regional human rights supervision should be done by a human rights monitoring body (such as a commission) or a court with both mandate: the promotion and protection of human rights.

The monitoring body and court, where established, must be composed of independent and impartial experts. The independence and impartiality of the members must be guaranteed through: Confirmation hearings and election in an open and transparent manner, Privileges and immunities.

Proper procedures for the removal of commissioners and judges.


systems Where a regional human rights monitoring body such as a

commission is established, its mandate should include: On-site visits to investigate and report on the human rights

situation in member states. Effective response to emergency situations. Appointment of independent special rapporteurs, working groups

etc., as may be needed. Consideration and investigation of individual complaints in respect

of alleged human rights violations by member states. Publication and dissemination of reports and decisions. The

monitoring body itself, and not another decision-making body of the regional organizations, should decide whether and what to publish.

Transparency should be the norm. Interaction with civil society organizations, national human rights

institutions and other international mechanisms with a human rights agenda.

Inter-state communications and state-reporting mechanism.


systems Where a regional court with a human rights mandate is established, it

should hear cases as referred to it by the relevant human rights monitoring body, member states or individuals. The court should have contentious as well as advisory jurisdiction. The court’s judgment should be widely disseminated.

The commissioners and judges must be broadly representative of the region in terms of gender, legal systems, language and geography

The relevant regional organization has the responsibility to ensure the continuing effectiveness of the supervisory bodies that they establish, in consultation with civil society.

The regional organization has to provide the secretariats of the supervisory bodies with adequate resources. The commissioners and judges should control the appointment of key staff

ASEAN

Principles and Objectives: Human rights are mentioned in the Charter: preamble, purposes, principles and Article 14 mandates the establishment of ASEAN human rights body.

Membership criteria: no reference to human rights in respect of membership of ASEAN in its Charter. ASEAN’s membership is based on geography.

Human Rights Instruments: in November 2012, ASEAN adopted ASEAN Human Rights Declaration. Before AHRD, ASEAN has adopted …

Norms/Instruments

Children

• Declaration on Commitments on for Children in ASEAN (August 2001)

• Ha Noi Declaration on The Enhancement of Welfare and Development of ASEAN Women and Children ; 28 Oct 2010

Women

• Declaration on the Elimination of Violence Against Women in the ASEAN Region; 30 June 2004

• Ha Noi Declaration on The Enhancement of Welfare and Development of ASEAN Women and Children ; 28 October 2010

Trafficking

• 1997 ASEAN Transnational Crime

• ASEAN Declaration Against Trafficking in Persons Particularly Women and Children; 29 November 2004

• ASEAN Practitioner Guidelines on Effective Criminal Justice Responses to Trafficking in Persons (2007)

• Leaders Joint Statements on TIPs in Southeast Asia, May 2011.

Migrant workers

• ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers 13 January 2007, Cebu, Philippines

AHRD AHRD lies in its claims of adherence of that the enjoyment of human

rights and freedoms must be balanced with the performance of duties (Article 6), the regional and national context (Article 7), limitation of rights (Article 8), and reference to national laws i.e. regarding the right to participate in the government (Article 25.1), right to vote (Article 25.2), right to form ad join trade union (Article 27.2).

AHRD excluded the freedom of association, which was initially appeared in Article 24 along with the freedom of peaceful assembly.

AHRD emphasizes a supreme reference on the national laws at the regional level, rather than as a platform to universalize human rights and expand ownership on international norms at the regional level.

Shortcomings: The first is that it renders the rights stipulates in the Declaration as too

restrictive to regional and national context, some limitation and one’s performance to her/his duties, in its implementation. This point will make rights that have been extensively elaborate in the Declaration meaningless, as some countries do not guarantee human rights in their constitutions and several national laws provide restriction rather protection of rights.

AHRD

The second is that the Declaration is perceived as too ambiguous. While number of ‘regional and national particularities’ articles are in the body of Declaration, its Phnom Penh Statement guarantees the compliance with the international norms

AHRD also reflects the continuing ambiguity of ASEAN Member States on their commitment on human rights.

Finally, the Declaration is in conflict with international human rights norms. AHRD takes general principles as to limit rights rather than expanding them, provides no guarantee to freedom of association; deny ethnic minority and the rights of indigenous peoples; and adherence to national laws and context; present the useless at best and at worst harmful for human rights.

ASEAN Human Rights Systems

Conventions: Norms/Instrument

s

Commission/Committee ASEAN Human Rights Court??

ACWC 2010

AICHR 2009 ACMW

2008

Three Cs in Human Rights Systems

ASEAN

Supervisory bodies and their mandates: The Terms of Reference (TOR) of what is now called the ASEAN Intergovernmental Commission on Human Rights (AICHR) was adopted by the ASEAN Ministers of Foreign Affairs on 20 July 2009. The AICHR is consequently not established through a

treaty. The TOR do not include any rights catalog, though it provides that the Commission should ‘uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties’. While there is a clear reference to international human rights standards, other provisions of the TOR place a strong and arguably countervailing emphasis on national and regional particularities.

AICHR MODALITIES, PRINCIPLES, NATURE

non-interferenc

e

evolutionary approach

consultation

consensus

consultative

inter-governmen

tal body

ASEAN

Appointment and criteria for appointment of members of the supervisory bodies: As indicated by its name, the ASEAN Intergovernmental Commission on Human Rights is not intended to be an independent body; it is an intergovernmental consultative body. Its members are not expected to be independent. Each member state will appoint a ‘representative to the AICHR who shall be accountable to the appointing government’. A representative is appointed for a term of three years, but may be recalled by his or her government before the term comes to an end.

Supervision of the implementation of the judgment: N/A

Complementarity: N/A

Resources: AICHR funding comes from Member State’s contribution of USD 20,000 to its annual funds. AICHR cannot receive funds from external partners for the purpose of human rights protection

ASEAN

It is clear from the above that the AICHR is in nature very different from the three established regional systems.

While it is widely recognized that the creation of this body could be an important first step towards more robust protection of human rights in the region, it should be recognized that, because safeguards such as provisions concerning the independence of the Commissioners are absent, there is a constant danger that as this body may be used to shield rather than to stop human rights violations.

The door for AICHR’s development or evolution of a more independent body with stronger protective powers is left open by para 9.6 of the TOR, which provides that the TOR shall be reviewed after five years.

TOR REVIEW 2014 AICHR shall assess its works and submit recommendations for

the consideration of the Foreign Ministers. For this purpose, the review should be inspired by the 2009 Hua-Hin Declaration to launch AICHR, to include: AICHR to provide a forward looking strategy to strengthen

regional cooperation on human rights in the region,

AICHR to serve as a vehicle for progressive social development and justice and the full realization of human dignity and the attainment of higher quality of life for ASEAN people,

AICHR to receive full support and provision of adequate resources by ASEAN member states,

AICHR to acknowledge the contribution of stakeholders in the promotion and protection of human rights in ASEAN, and encouraged their continuing engagement and dialogue,

AICHR to develop in evolutionary approach in achieving cooperation on human rights as an overarching institution,

AICHR should balance its mandate on promotion and protection of human rights.

Recommendation for Review:

AICHR should function as human rights monitoring body, which supplement and complement the national and international systems.

The emerging good practices for human rights institutionalisation in ASEAN, such as the Human Rights Dialogue that was initiated by Indonesia in 2013, the Retreat to discuss human rights issues during AICHR regular session that was initiated by Brunei Darussalam, the visit of prison that was introduced by Thailand and the possible practice to observe court, need proper and positive follow-up internally in AICHR.

AICHR members must be composed of independent and impartial experts. The independence and impartiality of the members must be guaranteed through the confirmation hearings and election in an open and transparent manner

AICHR members must be broadly representative of the region in terms of gender, legal systems, language and geography.

The retreat was occurred during the 12th AICHR’s meeting in Jakarta, May 2013. AICHR allocated two hours retreat to discuss specific issues related to the human rights of Rohingya in Myanmar and the missing activist, Sombath Somphone of Laos.

Recommendation for Review

AICHR should take necessary measure to ensure that ASEAN exercise its responsibility to ensure the continuing effectiveness of the supervisory bodies that they establish, in consultation with civil society.

The regional organisation has to provide the secretariats of the supervisory bodies with adequate resources. The members should control the appointment of key staff.

In long term, AICHR should consider to provide recommendation to ASEAN Foreign Ministers to establish human rights court to hear cases.

AICHR needs to focus its next three years to gain recognition from the rest of ASEAN bodies and organs as the overarching body in the region deal with human rights with proper engagement and substantive cooperation. For this purpose, AICHR have to to invite them to series of meetings

and identify human rights gaps, interests and needs for cooperation. More importantly, AICHR should ensure that alignments and cooperation with ACWC and ACMW will be materialized.

Challenges ahead in ASEAN

Consensus way of making decision?

Non-interference or the absence of political will?

Deficit of democracy, good governance rule of law culture

Different political systems and practices

Final Words

Regionalism offers room for local resonance and consequently ownership in respect of the norms espoused as well as the enforcement process that the global system cannot hope to do. Regional mechanisms are simply more localized agents of the global human rights project.

Universality is too often simply seen as the existence of a single set of norms that is applicable to all people, at all times and all places. Nevertheless, regionalism in the field of human rights was not popular/invisible at the United Nations.

In fact, the determination of what the contents of those ‘universal norms’ should be in the first place. Unless there is participation by people from around the world in determining what those norms are, they can hardly be described as universal.

Regional and sub-regional mechanisms, with all the potential for conflict which they entail, are a vital part of this enterprise to make the human rights project more inclusive.

regional limitations and universality of human rights norms

News & Politics