A Regional Body That Protects Human Rights As Much As It Promotes?

At a recent regional conference, a friendly discord emerged among the realists, the optimists and the skeptics of NGO activists, panelists and members of the Working Group for an ASEAN Human Rights Mechanism.

What they mostly disagreed were in the details, concerns and expectations. First, the official name. After years of meetings and workshops, there has not been a consensus on the official name of this body. But according to one panelist who was engaged in the making of this body, several people were leaning towards calling it a “commission”.

Then, there are people who are concerned that this ASEAN human rights body (AHRB) or whatever name it will end up with, will become “too independent” and might not listen to their respective governments who appointed them. These people are against the proposal to call commissioners “experts” and would rather refer to them as “representatives”. Their reason? These 10 commissioners, though not necessarily government officials, are appointed by their respective governments, one for each country to be exact.

Those who prefer the term “experts” expressed concern that national “representatives” might not be independent or impartial enough to look after the benefits of ASEAN citizens as a whole as opposed to one individual nation. They will wait to judge the body by its performance. If breaching regional agreements or stated norms is frowned upon but not punishable, then there is every reason for them to expect this commission to be “toothless” like its parent entity. That, they argue will defeat the primary purpose of its establishment--to protect human rights of ASEAN citizens.

Then, there are realists who believe a credible and impartial human rights commission is possible but in incremental steps. They say with the continued pushing from Southeast Asian civil society, NGOs, the media and even some government officials, this will be possible. “I’m a realist,” said Dr. Budiono Kusumohamidjojo, a member of the Indonesian Working Group for an ASEAN Human Rights Mechanism. “We waited for 13 years for this [AHRB] to happen, you know.” Asked how likely it is that the commission will evolve to become credible, he said “that would be another 13 years.” Dr. Kusumohamidjojo was speaking on the sidelines of the 8th workshop on the ASEAN Regional Mechanism on Human Rights in Bangkok on 14 July 2009.

Nevertheless, he and other participants all agreed that the establishment of an ASEAN human rights body would mark the beginning of a new progressive era of regional cooperation on human rights. The Terms of Reference on the establishment of the body are expected to be approved by ASEAN ministers at their meeting in Phuket, Thailand during 17-23 July 2009.

There are two main parts of the job of the ASEAN human rights body: promotion and protection of human rights. The regional bloc has done some work on promoting human rights, but it has been criticised for not doing enough on protecting them. In practice, the business of protecting human rights can run counter to an ASEAN tradition of non-interference in internal matters of fellow member states.

One human rights activist, among the audience, raised a point that the inter-governmental body should meet “international human rights standards”. But Dr. Termsak Chalermpalanupap, one of the panelists, politely fended off the suggestion. “I think there is no international human rights standard. It depends on to which treaty you are a signatory.”

Responding to another comment from the audience on the ASEAN’s ability to enforce its charter, Dr. Termsak said “We do not require sharp teeth. In ASEAN, we do not bite. We just try to help each other.” Human rights protection is just one component of the charter and that the primary responsibility to protect human rights lies with each member state, said Dr. Termsak, who is also Director of Political and Security Cooperation at the ASEAN Secretariat. He made clear that it is not possible for ASEN to impose sanctions on member states: “ASEAN is just an entity consisting of 10 member states, not a supra-regional government”.

Prof. Vitit Muntarbhorn, a Thailand member of the Working Group, called for patience. “I think we start from scratch and take an ‘incremental’ approach. We need to compromise.” Nevertheless, the Terms of Reference should not be lower in standard than the UN Human Rights Declaration, said Mr. Vitit, who is also the United Nations’ Special Rapporteur on the Situation of Human Rights in the Democratic People's Republic of Korea.

Describing the Terms of Reference as “work in progress” both in the areas of promotion and protection of human rights, “They can be improved, but this is a good start.” NGOs and civil society organisations can contribute to such improvement by providing checks and balances to ensure that the human rights body functions in the way it should be.

Mr. Wigberto Tañada, chairperson of the Philippine Working Group for an ASEAN Human Rights Mechanism, called for realistic expectations. “Let’s us take note that ASEAN has chosen a revolutionary approach and so it cannot be expected that the Terms of Reference can settle everything.” The Terms of Reference is “the first step towards the improvement of everything” concerning the promotion and protection of human rights, said Mr. Tanada.

Can this intergovernmental human rights body ever be independent? “It has to prove itself,” Prof. Vitit said. Besides political independence on human rights issues, the regional bloc also needs to prove its relevance to the 570 million-plus ASEAN citizens. “ASEAN has to prove itself that it is an inter-people organisation. It is not right now. It has to prove itself to be ASEAN of the people, by the people and for the people.”

To read the draft version of the agreement on the establishment of an ASEAN Human Rights Commission, please click here.

Text by FNF Southeast & East Asia office

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