Prospects for an ASEAN Court of Human Rights: The Pulse of ASEAN Member-States
Author: Mark Anthony Articulo
Translated into Spanish by Gilma Cristina Sánchez Cossio
In 2007, forty years after the establishment of the Association of Southeast Asian Nations (ASEAN), the governments of Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam adopted the ASEAN Charter, which became ASEAN’s constitutive instrument (ASEAN, 2007). The Charter established a rules-based and people-oriented organization that has its own legal personality capable of pursuing the maintenance of peace, security and stability, and enhancement of regional resilience by promoting greater political, security, economic and socio-cultural cooperation (ASEAN Charter, 2007; Severino, 2006).
To attain ASEAN’s purposes, the Charter, in Article 2, laid down fundamental principles that shall guide the conduct of ASEAN and its members. Of these principles, the respect for independence, sovereignty, equality, territorial integrity and national identity of all ASEAN states persists as the cardinal maxim that governs the relationship between ASEAN and its members (ASEAN Charter, 2007). This cardinal maxim reflects ASEAN’s long tradition of non-interference in matters that, for the past forty years, have long been regarded as falling within the purview of the member states’ internal affairs.
It was remarkable, therefore, that the ASEAN Charter also contained a provision mandating ASEAN and its members to respect fundamental freedoms, promote and protect human rights, and promote social justice, as these are matters that some member states are apprehensive or even averse to subject to external scrutiny. Indeed, this provision on the ASEAN Charter on human rights promotion and protection has been considered as a milestone. This has also been a long-awaited development considering that ASEAN’s first agreement on the formation of a regional human rights regime was made in June 1993, through the Joint Communique of the 26th ASEAN Foreign Ministers Meeting, following the adoption of the Vienna Declaration and Programme of Action.
The Charter also provided that ASEAN shall establish an ASEAN human rights body in conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms. Consequently, on 23 October 2009, at the 15th ASEAN Summit in Cha-Am Hua Hin, Thailand, ASEAN leaders inaugurated the ASEAN Intergovernmental Commission on Human Rights or the AICHR (Numnak, Romandy, & Trapp, 2009). Under its Terms of Reference (TOR), the AICHR is to function as an inter-governmental body and an integral part of the ASEAN organizational structure. It is a consultative body where member states appoint their representatives, who shall be accountable to their appointing Governments (AICHR TOR, 2009).
Through the efforts of the AICHR, ASEAN adopted the ASEAN Human Rights Declaration (AHRD) and Phnom Penh Statement on the Adoption of the AHRD (AICHR, 2012). Both serve as the framework for regional cooperation on the promotion and protection of human rights and are the embodiment of the commitment of the Governments of ASEAN to safeguard the human rights and fundamental freedoms of the people of ASEAN.
While it was considered a breakthrough by ASEAN, AICHR has received various criticisms since its inception. It was perceived as “toothless” as it has no enforcement mechanism (Numnak, Romandy, & Trapp, 2009). It was even labeled as a mere façade for ASEAN to justify its new duty to set human rights on the regional agenda, sans functioning effectively to protect human rights in the region (Hara, 2019). It was observed that under its TOR, AICHR is mandated to promote human rights norms, but is not authorized to monitor human rights practices of the member states, take investigative actions against alleged human rights abuses, or redress human rights violations (Phan, 2018). The rigidity of ASEAN’s Way, particularly its adherence to non-interference, also contributes to the criticisms against AICHR (Phan, 2018).
In view of the criticisms, it was thought imperative to establish a different regional body, that is, a human rights court, which can acquire jurisdiction over cases of alleged human rights violations in the region (Phan, 2019; Gunawan & Aziz Elven, 2017). Moreover, the creation of a human rights court has been considered as urgent in order to avoid impunity for the most serious human rights violations occurring in the region (Gunawan & Aziz Elven, 2017).
Certainly, the establishment of regional human rights court offers a more robust opportunity for the protection of human rights. Regional human rights courts in Europe, the Americas, and Africa, which are playing an increasingly important role in the promotion and protection of human rights, are cases in point (Universal Rights Group Geneva, n.d.). However, to date, no formal dialogue has been held as regards the formation of an ASEAN Court of Human Rights. The official positions of each of the ASEAN member-states remain a matter of speculation. Thus, in order to determine the prospect of establishing a human rights court in ASEAN in the future, this paper will examine reports, statements of experts and diplomats, and other relevant literatures that indicate the pulse of ASEAN member states on the matter. This paper will briefly describe how likely or unlikely an ASEAN state will agree to the formation of this regional mechanism.
Brunei is an absolute monarchy. Although it is party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) and its two additional protocols, Brunei has not accepted the individual complaints mechanism under either (OHCHR, n.d.). When Tomy Koh, former foreign minister of Singapore, classified the ten ASEAN countries into three groups depending on how they deal with human rights issues, he classified Brunei as neither a “champion” of human rights nor “unenthusiastic” about it – Brunei lies in the middle (Petcharamesree, 2009).
Cambodia is among the ASEAN countries considered by Koh as “unenthusiastic” about human rights (Petcharamesree, 2009) or is skeptical and wary of the efforts to institutionalize regional human rights cooperation (Phan, 2018).
However, Cambodia ratified more major human rights treaties than Brunei. These include: Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol (CAT-OP), International Covenant on Civil and Political Rights (CCPR), Convention for the Protection of All Persons from Enforced Disappearance (CED), CEDAW, International Convention on the Elimination of All Forms of Racial Discrimination (CERD), International Covenant on Economic, Social and Cultural Rights (CESCR), CRC and its two Optional Protocols, and Convention on the Rights of Persons with Disabilities (CRPD). Only the individual complaints mechanism under CEDAW-OP was accepted by Cambodia (OHCHR, n.d.).
After the effectiveness of the Philippines’ withdrawal from the Rome Statute, Cambodia became the sole ASEAN state that is a party to the said statute (ICC, n.d.).
Indonesia is one of the only four ASEAN states with a national human rights commission (NHRC) that is considered as independent. It is also one among the considered “champions” of human rights in ASEAN (Petcharamesree, 2009). Phan (2018), by citing Human Rights Herald, noted that when the provision of human rights in the ASEAN Charter was being debated upon, Indonesia went so far as to publicly announce that whatever mechanism the region was going to establish, Southeast Asia should eventually have a regional court of human rights.
Indonesia is a party to the International Covenant on Civil and Political Rights (CCPR), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), CAT, CEDAW, CERD, CESCR, CRC, and its two Optional Protocols, and CRPD (OHCHR, n.d.). None of the individual complaints mechanisms under any of these treaties was accepted by Indonesia (OHCHR, n.d).
Laos is one of the last five remaining communist countries in the world. It belongs to the “unenthusiastic” group (Petcharamesree, 2009). It is party to the following major human rights treaties: CAT, CCPR, CEDAW, CERD, CESCR, CRC and its two Optional Protocols, and CRPD (OHCHR, n.d.). Laos has also not accepted any individual complaints mechanism under any of the major human rights treaties it ratified (OHCHR, n.d.).
Malaysia has also established an independent NHRC. It is also considered as one of the “champions” (Petcharamesree, 2009). It is party to CEDAW, CRC and its two Optional Protocols, and CRPD (OHCHR, n.d.). It has not accepted any individual complaints mechanism under any of these treaties (OHCHR, n.d.).
Myanmar is also part of the so-called “unenthusiastic” group (Petcharamesree, 2009). Among the treaties where it is a party to include CEDAW, CESCR, CRC and its two Optional Protocols, and CRPD (OHCHR, n.d.). It has also not accepted any individual complaints mechanism under any of these treaties (OHCHR, n.d.).
Presently, the Myanmar government faces a serious rebuke from human rights groups and the international community for serious violations of human rights committed against the Rohingyas in the Rakhine state. This led the Gambia, along with other Muslim countries, to file a genocide case against Myanmar before the International Court of Justice (HRW, 2019). More recently, Myanmar military has also elicited serious concerns from the international community for widespread and grave human rights violations in view of the ongoing coup (HRW, 2021).
The Philippines has a constitutionally established NHRC. It is described as one of the “champions” (Petcharamesree, 2009) as it was one of the first two countries – Indonesia being the other – that supported the establishment of an ASEAN human rights mechanism.
The Philippines is a party to the following treaties: CAT and its Optional Protocol, CCPR and its Second Optional Protocol, CEDAW, CERD, CESCR, CMW, CRC and its two Optional Protocols, and CRPD. The Philippines accepted the individual complaints mechanism under only two of these treaties – CCPR and CEDAW (OHCHR, n.d.).
However, like Myanmar, the Philippine government is currently facing strong criticisms domestically and abroad. Under the present administration, both the Human Rights Council and the Office of the High Commissioner on Human Rights have decried the alleged human rights violations committed in connection with the so-called “war on drugs” of the government (Deutsche Welle, 2020).
The Philippines ceased to be a party to the Rome Statute in 2019 (ICC, 2019).
Along with Brunei, Singapore sits in between the “champions” and the “unenthusiastic” (Petcharamesree, 2009), although Phan (2018) noted that during the negotiation on the establishment of an ASEAN human rights body, Singapore came around to publicly back the idea, following suit the active support from Indonesia, the Philippines, Thailand, and Malaysia.
It is party to CEDAW, CERD, CRC and its Optional Protocol on the involvement of children in armed conflict, and CRPD (OHCHR, n.d.). It has not accepted any individual complaints mechanism under any of these treaties (OHCHR, n.d.).
Thailand is also one of the “champions” (Petcharamesree, 2009). It also has a NHRC. It has signed but yet to ratify the Rome Statute. It is a party to the following human rights treaties: CAT, CCPR, CEDAW, CERD, CESCR, CRC and its two Optional Protocols, and CRPD (OHCHR, n.d.). It has accepted individual complaints mechanisms under CEDAW, CRC and CRPD – the most number so far by any of the ten ASEAN member states (OHCHR, n.d.).
The Human Rights Watch (2020), nevertheless, noted of the recent issues affecting human rights in Thailand. The current military junta in Thailand has been accused of unabated impunity for human rights violations, including, among others, censorship and restrictions on freedom of expression, military detention and torture, and enforced disappearances. With its current form of government, Thailand enjoys the distinction of being the last military dictatorship in the world (The Atlantic, 2019).
Vietnam is one of the “unenthusiastic” states (Petcharamesree, 2009). It has ratified the CAT, CCPR, CEDAW, CERD, CESCR, CRC and its two Optional Protocols, and CRPD (OHCHR, n.d.). It has not accepted any individual complaints mechanism under any of the treaties (OHCHR, n.d.).
What is the prospect?
The foregoing country-by-country discussion is by no means a complete presentation of how diverse ASEAN is. Forms of government, religion, economic stability, colonial history, language and cultural orientation are a few of the many factors that differentiate the ten ASEAN countries. However, if the factors indicated above could be deemed as sufficient indicators of how an ASEAN country may approve or disapprove a covenant establishing an ASEAN Court of Human Rights, it can be argued that an ASEAN Court of Human Rights is still a long shot.
The marked differences between the aggrupation (“champions,” “unenthusiastic,” “in-betweens”) of countries as regards how they deal with human rights issues and how they perceived the creation of an ASEAN human rights body a decade ago still provide a good sense of how ASEAN countries will vote should the voting on the creation of a regional human rights court be done today. In addition, a perusal of the statistics on the acceptance of the individual countries to the various individual complaint mechanisms under the major human rights treaty bodies also gives a good hint that ASEAN countries are not ready to subject themselves to the scrutiny of international treaty bodies. In fact, two (Indonesia and Malaysia) of those considered as “champions” of human rights in ASEAN have chosen not to accept any of the individual complaints mechanisms.
The change in circumstances in some of the considered “champions” may also be a determinant of the fate of an ASEAN Court of Human Rights. For instance, the Philippines, considering its track record in advocating for human rights protection and promotion in the region, has recently been the subject of international scrutiny because of extra-judicial killings allegedly associated with the “war on drugs.” The current administration has also received criticisms from various human rights groups for declining to renew the license of the country’s biggest television and news station, for incarcerating individuals who are critical to the government (HRW, 2020), and for red-tagging (HRW, 2021; Amnesty International, 2020). Moreover, if the opting out of the Philippines from the Rome Statute is any indication of the unwillingness of the Philippines to be subjected to the jurisdiction of an international body, then there is a credence to the conclusion that, at the moment, the tide has turned for the Philippines.
Similarly, Thailand, as discussed above, has been the receiving end of reproaches for human rights violations of the current military junta. Under the junta’s constitution, junta members and anyone acting on the junta’s orders are being protected from ever being held accountable for human rights violations committed during the military rule (HRW, 2020). This is a strong indication that the current military government is averse to any form of accountability.
Underpinning all these factors is the cardinal maxim of non-interference. The ASEAN Way is deeply enmeshed with the rule that ASEAN and its member states should refrain from interfering in the internal affairs of other member states (Numnak, Romandy, & Trapp, 2009). The existence of this practice has resulted in the minimal use of institutions and mechanisms in the legal sense to instill regional cooperation and resolve transboundary issues and problems (Buendia, 2020). Buendia (citing Acharya and Katsumata) also emphasized that ASEAN Way standardizes the behavior of states through the doctrine of non-use of force or threat of force in dealing with disputes, and respects the sovereignty and territorial integrity of member states.
Nonetheless, the ASEAN Way has also a recognized downside. ASEAN, which was apparently motivated by upholding the cardinal maxim of non-interference, did not escape censure and was warned of losing its credibility for its “deafening silence” on the Rohingya crisis in Myanmar (The Strait Times, 2017). Individual ASEAN member states, who are immediate neighbors of Myanmar, also took the brunt of criticisms from outside ASEAN for not issuing a statement on the report or expressed any concern on the widespread human rights violations against Rohingyas (The Diplomat, 2018).
Also inherent to the ASEAN Way is the long tradition of musyawara (consultation) and mufakat (consensus) (Buendia, 2020). This is not only a procedural but also a substantial component of how ASEAN and its member states conduct their work. Decision-making has to pass through consultation and consensus before ASEAN could make a stand for a certain point. Decision-making in ASEAN is protracted and lengthy. This is the very process, which is also central to ASEAN, that the idea of the ASEAN Court of Human Rights should go through. Being reminded of the differences and other factors that divide ASEAN member states on the issue of human rights, it is, therefore, certain that negotiating an ASEAN Court of Human Rights would be a herculean and taxing task.
There is hope
However, hope is not all lost. In fact, as shown above, despite the marked differences and diversity of ASEAN member states, ASEAN was able to include in its Charter a provision on the promotion and protection of Human Rights. It was also able to inaugurate the AICHR, which wasted no time in crafting the ASEAN Human Rights Declaration. While it took a long time for ASEAN to come up with these significant developments in human rights promotion and protection, the fact that it was able to do so despite the inherent conservatism of some ASEAN member states and the intrinsic rigidity of the ASEAN Way is very telling of how much more ASEAN can achieve in order to make ASEAN a truly people-centered organization. With these milestones, the future for an ASEAN Court of Human Rights is not at all bleak.
It must be emphasized, however, that the effort to realize an ASEAN Court of Human Rights extends beyond the political will of leaders and governments. Frankly stated, governments would be reluctant to relinquish a part of their sovereignty in favor of an international or regional human rights court or mechanism. It should therefore, require, among other imperative factors, an active citizenry, especially vigorous civil societies, to rally behind the colossal, but not impossible goal of creating an ASEAN Human Rights Court. If only to genuinely achieve the purposes of ASEAN as enumerated in its Charter, activism on the part of the people of ASEAN should not only be encouraged, but also required.
List of references
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Mark is a Foreign Service Officer from the Philippines. He is presently taking up Master of Arts in International Law and the Settlement of Disputes at the University for Peace as an Asian Peacebuilders (APS) scholar. He is the Founder and Chairman of the Cagayan Legal Assistance on Wheels (CLAWs), Inc., which is a non-stock and non-profit corporation that aims to provide free legal assistance and promote legal literacy among the impoverished and marginalized communities in his home province.
Disclaimer: The views expressed in this paper are those of the author(s) and do not necessarily represent those of his employer.