Lessons for an ASEAN human rights system

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                2007981954

International and Regional Protection of Human Rights

(LLAW 6072)

Written Paper

Consider the ways in which the other regional human rights mechanisms could provide suitable precedents for the ASEAN Commission on Human Rights.  What form do you think the Commission should take?

Introduction

There is no doubt that having human rights and a commission written into the ASEAN Charter signals a new dawn in the history of the Association.  These are no small steps, given the huge differences in attitudes towards human rights in the region and the Association’s strong adherence to the policy of non-interference.  Whatever the motivations are for this human rights initiative, ASEAN appears to be compelled by the pressures of globalization to improve their systems of governance and narrow the gap between rich and poor.  Without these improvements, the planned economic integration of the region’s economies is likely to bring dire consequences which could threaten the very economic survival of the region.  The apparent commitment to human rights protection appears to be part of this macro-economic picture.

In this paper, I will briefly compare the African, European and Inter-American systems of human rights protection in three areas, namely developmental approaches, sources of law and their form in terms of commissions and courts, their powers and mandate.  Examining the experience of these systems will allow me to draw inspiration and lessons for the proposed ASEAN Human Rights Commission.  I will then conclude with my vision of the form for the Commission.

Developmental Approaches in the Three Regions

Two distinct developmental approaches could be discerned from the European, African and Inter-American human rights systems.  The Council of Europe’s system came after the bitter experience of World War II.  It started with a strong legal basis in 1950 with the European Convention on Human Rights, which binds states to specific treaty obligations.  This was followed by the establishment of a commission and a court in 1954 and 1959 respectively.  This could be termed a treaty-based approach.  The African Union’s human rights system can also be described as a treaty-based one.  It began in 1981 with the African (Banjul) Charter on Human and Peoples’ Rights, which sets out certain rights and duties that member states shall recognize and implement.  This was followed by the establishment of the African Commission on Human and Peoples’ Rights in 1987 and later the creation (and integration) of the African Court of Justice and Human Rights.  It could therefore be said that both the European and African systems began with a legal base in human rights treaties.  The other developmental approach could be described as a charter-based one, characterized by the Inter-American system.  This system emerged as early as 1948 with the adoption of the  and the 1951 Charter of the Organization of American States (OAS).  The Inter-American Commission on Human Rights was established in 1960, but it had no legal basis in a binding treaty as such until 1969, when the American Convention on Human Rights was created.  This was followed by the establishment of a court in 1978.

Although all three regional systems began differently, they have evolved into treaty-based systems which derive their legal base from specific conventions and protocols.  The European regime is now a fully-fledged court which hears individual as well as inter-state complaints without a commission.  Its ministerial committee supervises state compliance to Convention rights.  Unlike the European Court of Human Rights, both the Inter-American and African commissions function as a quasi-judicial body tasked with protecting and promoting human rights, as well as interpreting their respective human rights conventions.  Both commissions’ work is buttressed by their respective judicial arm, a human rights court, although the newly merged African Court of Justice and Human Rights has yet to hear cases.

Treaty-based Rights and Duties in the Three Regions

The American Convention on Human Rights covers a broad range of civil and political rights, such as the right to life, to a fair trial, to freedom of conscience, assembly, and movement, etc.  One single article in Chapter III deals with economic, social, and cultural rights.  This superficial treatment was expanded later with the Protocol of San Salvador.  Chapter V points out that individuals have responsibilities as well as rights.

Similarly, Chapter II of the African Charter on Human and Peoples’ Rights sets out the duties individuals have towards their family and society, the State and the international community.  This extensive recognition of duties is coupled with an equally extensive recognition of rights, although it came with significant “clawback clauses” for the state at the expense of rights protected.  A common feature of these rights and duties is that they tend to be drafted in broad terms as statements of principles and require extensive interpretation by the Court to tease out their meaning in particular situations.

By contrast, the European Convention on Human Rights is the only international treaty that provides a high degree of individual protection, with little in the way of duties.  It is supplemented by the European Convention for the Prevention of Torture and 14 protocols covering education, discrimination, etc.

Courts and Commissions in the Three Regions

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The European Court of Human Rights gives direct access and legal aid to individuals and by all accounts is drowning under its own success because of its expanding case load and membership.  Its decisions are not legally binding, but it has the power to award both pecuniary and non-pecuniary damages (though not interim measures).  It has developed an authoritative body of case law which guides domestic law reform and legislation.  Its advisory work includes the development of domestic rule-of-law infrastructure.  Turkey’s long but mostly successful compliance process is proof of the effectiveness of the Court.  If a state refuses ...

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