A Roadmap for an ASEAN Human Rights Mechanism
Prepared by Professor Vitit Muntarbhorn, co-chairperson of the Working Group, at the third workshop for an ASEAN Regional Mechanism on Human Rights, Bangkok, Thailand from 28 - 29 May 2003

Introduction:

It has been a long and winding road.

In 1993 the Foreign Ministers of the Association of Southeast Asian Nations (ASEAN) broached the possibility of establishing an (inter-governmental) mechanism on human rights for the region as follows:

“(The Foreign Ministers) in support of the Vienna Declaration and Programme of Action (of the World Conference on Human Rights) agreed that ASEAN should also consider the establishment of an appropriate regional mechanism on human rights.”

It is ten years on, since that seminal statement. Yet, no such mechanism has been established, and to date, ASEAN Governments have not yet put forward ideas on the shape and substance of such mechanism. It is thus high time to move from mere intention to more concretization.

Developments:

The impetus for developing a regional inter-governmental human rights system was provided by the World Conference on Human Rights in 1993 in its reiteration that there is “the need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist”. Since all ASEAN countries were represented at this World Conference, they were and are part of this momentum.

Subsequently ASEAN parliamentarians added their support to the impetus by their adoption of the ASEAN Inter-Parliamentary organization (AIPO) Declaration on Human Rights in 1993 stating that “it is likewise the task and responsibility of member States to establish an appropriate regional mechanism on human rights”.

After that period, from 1993 members of civil society started to discuss the steps towards a regional human rights mechanism and then formed themselves into a Working Group for an ASEAN Human Rights Mechanism to help suggest the form and content of an appropriate regional mechanism. This Working Group now has national working groups in six ASEAN countries (Indonesia, Malaysia, Cambodia, Singapore, Thailand and the Philippines), composed primarily of members of civil society, while the other four ASEAN countries have national focal points - usually a government ministry has been identified as contact points on the issue (Myanmar, Lao People’s Democratic Republic, Vietnam and Brunei Daraussalam). The said Working Group has been meeting annually since 1996 with the ASEAN Foreign Ministers and its work has been referred to in the annual communique issued by the Ministers since 1998.

Most recently, the Foreign Ministers made this statement in their communique at the 35th Ministerial Meeting in Bandar Seri Begawan 2002:

“We recalled the decision made by the 26th ASEAN Ministerial meeting to consider the establishment of an appropriate mechanism on human rights. In this regard, we noted the First Second Workshops on the ASEAN Regional Mechanism on Human Rights hosted respectively by Indonesia from 5-6 July 2001 and the Philippines from 13-15 June 2002. We also noted the 9th ASEAN-International Institutes of Security and International Studies (ISIS) Colloquium on Human Rights, held from 23-24 February 2002, in Manila. We deemed that these efforts could contribute in enhancing the exchange of views among different sectors in ASEAN towards the realisation of the concept of an ASEAN human rights mechanism. We also acknowledge the importance of continuing dialogue with the Working Group for an ASEAN Human Rights Mechanism”.

The various workshops and colloquium referred to in the above communique are dealt with below.

At this juncture, other positive developments which provide added weight to the need for an ASEAN human rights mechanism and related activities can be noted as follows:

First, ASEAN countries are increasingly becoming parties to key international human rights treaties. All ASEAN countries have ratified the Convention on the Rights of the Child (CRC), while all but one are members of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In the past few years, more ASEAN countries have signed or acceded to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Very recently, Thailand acceded to the International Convention on the Elimination of All Forms of Racial Discrimination. A number of ASEAN countries have also signed or ratified the Rome Statute of the International Criminal Court.

Second, in 1997 ASEAN adopted its ASEAN Vision 2020 which envisioned “vibrant and open ASEAN societies consistent with their respective national identities, where all people enjoy equitable access to opportunities for total human development” This helps to reinforce the call for more human rights promotion and protection in ASEAN.

Third, at the Heads of Government Summit in Hanoi in 1998, The Hanoi Plan of Action was adopted which, for the first time, committed ASEAN countries to various human rights related activities, in particular:

• enhancing the exchange of information in the field of human rights in order to promote and protect all human rights and fundamental freedoms of all peoples in accordance with the United Nations (UN) Charter, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action of the World Conference on Human Rights;
• working towards the full implementation of the CRC , CEDAW and other international instruments on women and children.

Fourth, all countries from ASEAN participate in the UN supported annual workshops on human rights in the Asia-Pacific region. The most recent workshop was convened in Islamabad in 2003. Despite cultural and other differences between countries, they all agree to take part in the “building blocks” approach supported by the Office of the UN High Commissioner for Human Rights (OHCHR) based upon four key activities: promotion of national human rights action plans, support for setting up national human rights institutions such as national human rights commissions, fostering of national human rights education, and the realisation of economic, social and cultural rights and the right to development. ASEAN countries took part in a number of activities in 2002 ranging from workshops on human rights education and the administration of justice, to training programme for national human rights institutions.

Fifth, national human rights commissions are now found in four ASEAN countries (The Philippines, Indonesia, Malaysia and Thailand), and they provide a key check and balance against abuse of power. These commissions have had to tackle very difficult issues ranging from extra-judicial killings to violations of labour rights, child rights and women’s rights. Importantly today, with the global concern against terrorism, there arise a host of issues linked with national security which also have to be dealt with sensitively by national human rights commissions. All four commissions mentioned are members of the Asia-Pacific Forum of National Human Rights Institutions which provides a joint forum for these commissions to meet annually with the other national commissions from the Asia-Pacific region and address issues of common concern. This forum also has an Advisory Council of Jurists, with a representative from each commission, to provide guidance on the development of human rights-related law and practice. This Council has provided advice on the death penalty, child pornography on the Internet and trafficking in women and children. Currently, it is considering the question of the Rule of Law and the impact of terrorism.

Sixth, while Track I in ASEAN concerns governmental cooperation in ASEAN, track II cooperation has also emerged between various think-tanks in the region with greater interest for human rights. An informal Track III process is also progressing, with emphasis on broad people’s participation such as through the now annual ASEAN People’s Assembly and the initiatives of the Working Group for an ASEAN Human Rights Mechanism.

What ASEAN Mechanism ?

In the context of the above developments, the heart of the question is “What ASEAN Mechanism ?” both in form and content. In 2000 the Working Group for an ASEAN Human Rights Mechanism took the rather bold initiative of proposing the setting up of the ASEAN Human Rights Commission and submitted a draft agreement to the ASEAN Foreign Ministers to this effect. The underlying rationale has been stated as follows by the Working Group:

“…The Asian region, including ASEAN, is the sole region in the world without a (regional human rights) system. ASEAN has yet to establish a regional human rights mechanism pursuant to the ministerial statement of 1993.

The issue is most pertinent at a time when there is already much monitoring of human rights developments in ASEAN from organizations outside the ASEAN region, including the United Nations. The lack of an ASEAN mechanism implies that while the region is exposed to monitoring from sources outside the region, there are few opportunities for the region to take stock of human rights developments in the region from the standpoint of ASEAN. The establishment of an ASEAN human rights mechanism with governmental support should help to redress this situation so that the ASEAN perspective is better understood by outsiders. This should complement international human rights standards in the region.”

As proposed by the Working Group, the ASEAN Human Rights Commission would have these features:

First, its role would be to promote and protect human rights in the ASEAN region - covering (only) those countries which become parties to the Agreement setting up the ASEAN Human Rights Commission. The ratifications of at least three ASEAN countries are needed to bring the Agreement and Commission into operation.

Second, while there is no listing of substantive rights to be protected under the Agreement, the Agreement reiterates the international law on the issue by referring to relevant instruments such as the 1948 Universal Declaration on Human Rights, the 1986 UN Declaration on the Right to Development, the 1993 Vienna Declaration and Programme of Action of the World Conference on Human Rights and the treaties to which the member countries have acceded.

Third, the Commission is to have seven members who are to act independently, elected by the Foreign Ministers of the countries which are members of the Agreement, drawn from a list of candidates proposed by Governments in consultation with civil society.

Fourth, the Commission members are elected for a single, non-renewable term of five years, bearing in mind gender balance.

Fifth, the functions of the Commission include the preparation of reports on human rights, investigations on its own initiative of human rights violations, and actions in response to petitions and communications from States and individuals/groups concerning allegations of human rights violations.

Sixth, the Commission is not a court of law and can only make recommendations. Access to the Commission is subject to the international law rules concerning exhaustion of local remedies before using the Commission, unless there is denial of justice at the national level (e.g. malfunctioning judicial system).

Seventh, where the Commission finds that there has been a violation of human rights, it can make recommendations as appropriate, and it must also publish its findings and send a report on the matter to the Ministers of Foreign Affairs of the countries which have ratified the Agreement.

Eighth, the Commission can request the Foreign Ministers above to take appropriate action to ensure compliance with its recommendations. There can then be cross-referral to the Heads of Government of the member countries for final action to ensure compliance.

What has been the ASEAN reaction to this proposal ? There has been no official reaction to the proposal in terms of a Yes or No. However, in 2001 in the annual ministerial communique, the ASEAN Foreign Ministers stated that “we agreed that ASEAN-ISIS should also be involved in the discussions especially in the broader context of a People’s ASEAN”.

At the beginning of 2002, ASEAN ISIS organised a Colloquium on Human Rights where the idea of the ASEAN Human Rights Commission was introduced and discussed. A position is awaited from ASEAN ISIS on the issue of the proposed ASEAN Human Rights Commission.

Perhaps the best way to analyse the (lack of) response from the ASEAN Governments on the issue is to watch the body language. The prolonged silence on the issue implies that the Governments are not yet ready to opt for the ASEAN Human Rights Commission, at least in the short term. Other options may thus need to be tabled.

Milestones:

Propitiously, the milestones with those other options are increasingly visible partly due to another series of discussion workshops of an informal tri-partite kind - with the presence of government representatives, the Working Group for an ASEAN Human Rights Mechanism, and national human rights commissions from the ASEAN Region. In 2001, the Indonesian Foreign Ministry co-hosted for the first time this type workshop in Jakarta. The Jakarta Workshop began to assess other options including a more specific ASEAN mechanism on the rights of women and children, as well as more national activities such as the promotion of national human rights institutions, particularly national human rights commissions.

The message became clearer at the second Workshop of this kind held in Manila in 2002 whose conclusions provided key directions which can perhaps be summarised as follows:

“while an end goal should be an ASEAN Human Rights Commission, a step by step approach should be taken in the meantime, with multi-track, multi-sectoral strategies pursued through interim arrangements and alternative courses of action”.

The needed directions include:

• the establishment of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children;  
• the need for a Plan of Action - with a time frame - on the possibility of establishing an ASEAN Human Rights Mechanism, coupled with activities such as human rights education, information exchange and training, enhanced cooperation between Governments and civil society, and the creation of regional centres of excellence on human rights, e.g. ASEAN Institute(s) for Human Rights;  
• the creation of interim thematic functional groups surrounding issues of common concern such as on the issue of human trafficking, the problem of terrorism and internal conflicts;  
• the establishment of a focal point on the issue within ASEAN;  
• the establishment of a Joint Working Group on the issue composed of governments and civil society, complemented by an ASEAN Eminent Persons Group as a think-tank to consider the potential ASEAN mechanism;  
• the pursuit of activities complementing the aspiration for a regional human rights mechanism, e.g. creation of national human rights institutions, drafting national human rights action plans, and promotion of human rights education and poverty reduction;  
• the encouragement of an informal network of existing national human rights institutions to exchange ideas and resources on human rights education, information, experiences and best practices;  
• the promotion of human rights activities at the grassroots;  
• the fostering of human rights awareness campaigns;  
• the creation of national working groups for an ASEAN Human Rights Mechanism in all ASEAN countries;  
• the crafting of the norms/standards behind the establishment of an ASEAN Human Rights Mechanism.

En passant, further impetus was provided for the concretization of ideas for an ASEAN human rights mechanism when in a parallel tri-partite manner, representatives from ASAEN Governments, national human rights institutions and the Working Group for an ASEAN Human Rights Mechanism, in addition to other civil society groups, met up with counterparts from other regions of the world to learn and share experiences in Strasbourg in October 2002 at the Conference on Regional Systems for the Protection of Human Rights. Guidance for the ASEAN region was provided by the adoption of a Plan of Action at Strasbourg embodying the following:
 

A) Engaging Governments:

• prepare a draft concept paper for submission to ASEAN Senior Officials, providing the background for an ASEAN Human Rights Mechanism, with consideration of a possible ASEAN instrument on human rights based upon ASEAN countries constitutions and the international instruments to which ASEAN are agreeable;
• continue to engage ASEAN Senior Officials;
• engage the Heads of Governments/States in ASEAN on the issue.

B) Broadening the Support Base/Constituency:

• engage ASEAN parliamentarians (AIPO), the ASEAN People’s Assembly, national human rights institutions, and civil society groups;
• establish an Eminent Persons Group on human rights;
• set up a Southeast Asian Centre for Human Rights to promote training, education, data and information collection and exchange and capacity-building.

C) Identifying New Issues and Challenges:

• address new issues such as the impact of anti-terrorism legislation on human rights, and the relationship between the Rule of Law and foreign investments;
• pay attention to violations of economic, social and cultural rights, especially the right to life and the right to development, in the context of globalization.

D) Maintaining Position vis-a-vis ASEAN:

• build confidence on a step by step basis towards the formation of an ASEAN Human Rights Mechanism ;
• work towards reference to the issue in the annual Joint Communique of the ASEAN Ministers;
• continue to organise workshops co-sponsored by ASEAN Governments.

In the above setting, it can be submitted that the idea of an ASEAN mechanism concerning women and children as the first step towards an ASEAN Human Rights Commission, is well worth exploring, especially as all ASEAN countries are parties to the CRC and most are parties to the CEDAW.

An ASEAN Commission for the Promotion and Protection of the Rights of Women and Children ?:

In considering the formation of any regional mechanism, including a specific mechanism on children and women, certain basic truths emerge comparatively from the globe, and lessons can be learnt from other regions with regional mechanisms. Their experiences indicates the following premises behind the formation of such mechanisms:

1. The regional mechanism needs to promote and protect human rights in the region, and should act independently (of governments).
2. The regional mechanism should be inter-governmental based upon the commitment of members Governments/States.
3. The mandate of the mechanism should be consistent with international human rights standards, while providing “value added” from the region and helping to enrich/raise those standards.
4. The mechanism should respect national mechanisms such as national courts and should act only where the national/local remedies, including the national courts, have been exhausted, unless there has been denial of justice from the latter.
5. The mechanism should (at least) provide access to member Governments and individuals to seek redress against the other member Governments.

What are the implications for a mechanism - a Commission - on the rights of women and children?

Importantly, it should be noted that ASEAN already has various activities directly or indirectly on these two issues, and even some mechanisms bearing on these issues. There is thus , from the outset, the need to avoid duplication and provide value added.

From the angle of women’s issues, in 1988 ASEAN adopted the Declaration on the Advancement of Women in the ASEAN Region, calling for a variety of activities including:

• promotion of women’s participation in all fields;
• integration the concerns of women in national plans;
• promotion of women’s non-governmental organisations;
• harmonisation of views and positions concerning women.

Several activities have taken place throughout the years on women’s issues. An ASEAN Sub-Committee on Women has been established in the ASEAN framework. It has been emphasising activities such as action against trafficking in and crimes of violence against women; implementation of the CEDAW; promoting programming on skills training for women; and mainstreaming gender issues into development programmes in ASEAN. Various reports on women’s advancement have been published under the ASEAN Sub-Committee on Women. Women’s rights are addressed to some extent under this structure. There is also to be a convergent programme on women’s and children’s concerns in relation to human trafficking.

From the angle of children’s issues (in relation to those under 18 years of age (the age defined by the CRC) ), ASEAN has adopted two regional instruments on children: the 1993 ASEAN Plan of Action for Children and the 2001 Declaration on the Commitments for Children in ASEAN. The former highlights cooperation for the survival, development and protection of children in ASEAN and calls for action against violence and abuse of children. It has led to the setting up of a network of ASEAN desk officers to interlink on the issue. The network consists of government personnel. The Plan of Action has resulted in the implementation of the ASEAN Early Child Care and Development project consisting of training of carers of children and capacity building.

The 2001 Declaration lays down ideas for future activities targeted to: address issues of hunger and poverty; encourage respect of children’s rights through mutual sharing of information; provide opportunities for children with special needs; enable children to express their views; develop family support and family life education programmes; give attention to early childhood education; strengthen functional literacy and health care; protect children from violence, abuse, neglect, trafficking, exploitation, armed conflict and natural disasters; and establish a child-sensitive juvenile justice system. Thus child rights are also addressed under this Declaration, and there is some programming on child rights as above. However, there is no ASEAN Sub-Committee on Children; children’s issues have been dealt with by the meetings involving social development Ministers and personnel of ASEAN, while the ASEAN Sub-Committee on Youth overlaps with child rights at times, since it has addressed the issue of juvenile justice, but this Sub-Committee usually covers an older group.

From the angle of stocktaking, therefore, women’s rights and children’s rights are already dealt with to some extent by ASEAN , and there is a need to avoid “reinventing the wheel” while providing value added if a new ASEAN mechanism is to be set. From this angle, it can be submitted that a new ASEAN mechanism is necessary on women’s rights and children’s rights because of the following reasons:

• while the current structure of ASEAN has an ASEAN Sub-Committee on Women, an ASEAN Sub-Committee on Youth, a network of ASEAN desk officers on children, and meetings between ASEAN Ministers of social development and related personnel on women and children, the structure is primarily one based upon government personnel. It is not independent of the Governments;  
• while the current structure of ASEAN, its various Declarations and programmes touch upon women’s rights and children’s rights to some extent, they are not focused on human rights and it is uncertain to what extent they act in keeping with international human rights standards, particularly the CEDAW and CRC;  
• while the current structure has some monitoring on the issue, the monitoring is more oriented to general development and welfare concerns than to human rights;  
• there is no system currently to accept complaints of breaches of women’s rights and children’s rights (or other rights) at the inter-governmental level in ASEAN and to provide effective remedies;  
• there is no system accessible to women and children to help investigate allegations of breaches of their rights in the ASEAN setting.

Such challenges thus provide impetus for the call for an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children.

Roadmap for an ASEAN Human Rights Mechanism:

The approach for the future should be based upon a kind of Plan of Action which may be called “Roadmap for an ASEAN Human Rights Mechanism” with step-by-step activities and multi-tracks, in a given timeframe, drawn from the recommendations of the Manila Workshop and the other meetings mentioned above where ASEAN government representatives have come together to discuss concrete paths in cooperation with civil society actors.

This Roadmap should be taken up at the Bangkok Workshop to be co-organised by the Thai authorities in 2003 as the next stepping stone after the Manila Workshop.

The Roadmap for an ASEAN Human Rights Mechanism should be as follows:

1. In 2003, preferably at the time of the annual meeting of ASEAN Foreign Ministers, set up a Joint Working Group between government representatives and civil society, including the Working Group for an ASEAN Human Rights Mechanism and ASEAN ISIS, to examine the possibility of an ASEAN Human Rights Mechanism.

2. In 2003, with the blessing of ASEAN Governments, establish an Eminent Persons Group to complement the Joint Working Group mentioned and to provide the “think-tank” inputs for the options available and to submit a report on the issue to the proposed Joint Working Group and the ASEAN Foreign Ministers in 2004.

3. As an entry for the work of the above, explore the possibility of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children - its form and substance, supported by an ASEAN Convention on Women’s Rights and the Rights of the Child as the normative framework for actions, bearing in mind the following possible elements for such a Commission:

• promotion and protection of women’s rights and the rights of the child, with members of the regional Commission acting in an independent capacity;
• establishment of an inter-governmental system, while opening the door to civil society participation and gender balance;
• consistency with international human rights standards, while providing value added from the wisdom of the ASEAN region;
• respect for the principle of exhaustion of local remedies prior to access to the regional Commission in the framework of international law;
• guarantee of access to the regional Commission by member Governments and individuals to seek remedies in relation to the other member Governments, with power to monitor and investigate allegations of breaches of women’s rights and child rights.

4. Implement the above as a pathfinder towards a more comprehensive ASEAN Human Rights Commission to be set up in the framework of the existing ASEAN Vision 2020, enhanced by the Hanoi Plan of Action 1998.

5. Support other activities for the promotion and protection of human rights in the ASEAN region complementing the above elements, e.g. formation and networking between national working groups on such mechanism, and between national human rights commissions, more human rights education and capacity building, and the fostering of good practices in implementing human rights standards regionally, nationally and locally, with strong civil society participation and people-to-people cooperation.

Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University, Bangkok. He is Co-Chairperson of the Working Group for an ASEAN Human Rights Mechanism. He was formerly UN Special Rapporteur on the Sale of Children and is currently a Board Member of the UN Fund for Technical Cooperation (on Human Rights). This study was prepared for the 3rd Workshop on the ASEAN Regional Mechanism on Human Rights, 27-9 May 2003, Bangkok. It is the first draft.

Vitit.M@Chula.ac.th