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 to comply, the Committee of Ministers may publicly condemn such noncompliance. Recently, non-execution of decisions has been a growing problem in Southeastern Europe, where states in transition have adopted Convention norms but lacked the capacity for effective implementation. This has led to the proliferation of ombudsman-type institutions.
The Inter-American system uses both a court and a commission. The Inter-American Commission on Human Rights monitors state compliance by country visits, adopting reports, appointing special rapporteurs and making recommendations. It can be accessed by individuals and NGOs. If a state does not comply with the Commission’s recommendations, it is referred to the Inter-American Court of Human Rights. The problem is that this Court cannot be accessed directly by individuals; only states and the Commission can approach it. Unlike the non-binding nature of the European Court’s decisions, its decisions are binding through the American Convention. Its strength lies in the power not just to order damages, but also reparations such as interim/precautionary measures. It issues advisory opinions more readily than the European Court. It would even use sources of law outside the Convention, when necessary. Both the Inter-American Commission and Court are responsible for monitoring compliance with decisions. However, they have no enforcement powers and state compliance remains a problem, unless there is a regime change, as with Peru in 2001. More recently, non-compliance is shown by the United States in its dealings with Guantanamo Bay detainees.
The African Commission has similar monitoring and investigatory powers as the Inter-American Commission. It can be accessed by individuals and NGOs and has conducted on-site visits, appointed special rapporteurs and made recommendations to states, but it has yet to establish monitoring and follow-up mechanisms. There is some evidence that the individual petition procedure has protected petitioners’ rights and freedoms, although the Commission may undermine its own credibility when it appears too enthusiastic for settlements that are not capable of either compliance or verification. While the other regional systems do not require states to give periodic reports, the African Convention requires reporting every two years to its Commission. Since some states already have international reporting obligations under the UN-based treaties, this may create extra burdens on them, especially when resources are often non-existent. With the recent creation (and integration) of the African Court of Justice and Human Rights, the Commission has the additional task of preparing cases for submission to the Court. After the Commission has given an opinion, only states and the Commission can approach the Court. NGOs and individuals will have direct access to the Court only where the state has allowed them to do so. This is a step back in access to justice. One encouraging sign is that the Court has proved willing to interpret the African Charter liberally, so as to allow wide margins of exception to the rule on exhaustion of domestic remedies.
Suitable Precedents or Lessons
What lessons could ASEAN draw from these regional systems? First, the development of human rights systems in hostile jurisdictions proceeds at a snail pace. The graduated approach taken by the African and Inter-American systems has brought progress in the long term, although this progress pales in comparison with the European one. ASEAN could envisage a system maturing and becoming accepted, just as former Latin-American dictatorships have accepted their human rights commission, whose capacity and standards building activities appear to have changed attitudes over time. Furthermore, the recent experience of the European system provides a timely reminder of the importance of infrastructure and capacity building at the national level. The European system with its robust laws and Court is facing an unprecedented crisis largely because many new member states lack the capacity to implement laws and remedy human rights violations. This of course raises the questions of how these states were admitted into the Council of Europe in the first place, and what carrots and sticks could now be used to help them align with the Council’s human rights regime. ASEAN states face a similar problem in this respect and the two systems could draw inspirations from each other’s experience.
Second, taking an incremental, “building block” approach could mean that ASEAN does not need to begin with its own, regional human rights convention or court. The Inter-American system grappled with human rights declarations in the and OAS Charter for decades before it had its own convention, followed by protocols and a court. More importantly, the present political and social realities are that there is neither a united vision for human rights in ASEAN, nor a well-developed human rights culture. It would therefore be futile to have a convention, even if it can be agreed upon, when human rights have not taken root within civil society and the appropriate legal and executive infrastructure is not in place to implement them. It appears that with the two UN instruments (CEDAW and CRC) ratified by all ASEAN states (but with numerous reservations) and the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, there would be plenty to grappled with, not just in terms of protection and promotion, but also capacity and standards building. Furthermore, aligning domestic legislation with these treaty obligations with a view to reservation withdrawal would be a good start. However, as the ASEAN system matures, a regional convention and court will be indispensable for setting out the legal framework for human rights implementation. Therefore, each state should commit themselves to working out a timeline with regard to their readiness and contribution to a) a gradual withdrawal of all reservations; b) a regional human rights convention; and 3) a regional human rights court.
Third, it seems clear that a workable and credible human rights mechanism must be entrusted with some monitoring and investigative powers. The other regional systems have shown that a human rights culture is nurtured from within, but not without the help and peer review structure from without. This is perhaps especially relevant, given the oppressive regimes that have historically dominated many ASEAN states. The challenge is to structure and manage an ASEAN system in such a way that national human rights committees and groups are at the forefront, so as to minimize the perception of interference. The experience of other regional systems also indicates that commissions could take on a life of their own and charter a wider and more audacious mandate than the one intended for them.
Fourth, the African experience shows that broad principles and “clawback” clauses are not necessarily fatal, provided there are competent and forward thinking commissioners or judges to give them a liberal or restrictive interpretation. For instance, exhaustion of local remedies may be defined in such a way to include the lack of legal aid in the complainant’s state. The African experience also illustrates that a regional system emerging from decolonization would strive, not only to fill gaps left by international instruments, but to be distinctive and give voice to sovereignty, cultural and religious traditions. This quest for autonomy and identity is a legitimate one and should not be confused with the disingenuous excuses for cultural relativism given by some ASEAN states to maintain the status quo or avoid obligations. It is one thing to argue for specific rules that take into account “national and regional peculiarities” (balancing universality and diversity, as expressed in the 1993 Bangkok Declaration) and quite another to engage in rhetoric without action. The former is hard work; the latter is simply cheap talk. It is argued that the 1993 Vienna Declaration’s general admonitions to states to protect standards is non-specific enough to embrace the Bangkok Declaration’s insistence on the recognition of cultural and religious peculiarities.
Last but not the least, a credible human rights mechanism must begin with some recognizable standards or principles. Reservations to CEDAW and CRC by some ASEAN states show that these effectively defeat the purpose of the treaties, creating a dangerous situation where the lowest denominator applies. As Suzannah Linton puts it, “Even if one were to compromise, one cannot compromise when there is no discernable bottom line.” It is therefore imperative that an ASEAN system begins with some recognizable standards and mechanisms for monitoring compliance. These standards would provide a framework for meaningful dialogue about the actualization of human rights principles in various cultural and religious traditions. For example, if we begin with freedom of religion as a principle secured by law, we cannot then disallow conversion to another faith and inflict punishment on a convert. Instead, we can discuss under what circumstances should conversion take place and address certain cherished religious traditions and sensitivities. Similarly, states should not use Sharia law as a shield to excuse serious discrimination against women. However, within a standards framework, we can discuss how individuals can opt-in for practices such as unequal inheritance and female circumcision, as well as opt-out from practices that are in tension with religious/cultural traditions. These difficult deliberations should not be considered in a vacuum devoid of standards. In other words, “universal” principles are universal only in the sense that they provide a means to anchor our deliberations on human rights actualization in various socio-economic contexts. Without some benchmark, meaningful discussions about human rights are unlikely. With them, states may achieve a “golden mean”, which balances between traditional and contemporary/international values on issues such as apostasy, abortion, reproductive rights, homosexuality and sexual equality. Another less obvious argument for situating human rights in a “universalist” or global paradigm is that the increasingly global nature of unregulated capitalism necessitates human rights protection globally, since the nature of the threats we face regarding values like social security and economic protection is similar whatever our socio-economic contexts.
Towards an ASEAN Commission on Human Rights
Mindful of the current political realities in ASEAN, one can postulate a commission that is modest to begin with and yet open to a myriad of future possibilities. Such a flexible system requires a gradual and multi-faceted approach, preferably driven from “bottom-up” by organized civil society.
Structure and Mandate of the Commission
A non-judicial or quasi-judicial commission with a modest mandate would be more palatable to ASEAN states than a commission expressly charged with the powers of judicial scrutiny into individual petition. The Commission could initially focus on:
- Promotion
- Education
- Monitoring
- Investigating
- Reporting
- Benchmarking
- Recommendation
- Conciliation
The ASEAN Commission should be made up of independent human rights experts from different member states and at least one representative from each national human rights commission. One of its first tasks should be to facilitate the setting up of national commissions in states that have not yet done so. Its other early task would be to ensure consultations and co-ordination among all national commissions and civil society groups. The Commission could adopt the other regional models’ use of theme-specific committees and special rapporteurs, whose monitoring powers are designed to promote the rights of, for example, migrant workers. In order to streamline the Commission’s mandate and avoid duplication, the ASEAN Commission on Women and Children and the ASEAN Committee on Migration and Development could be subsumed under the Commission. The Commission should not duplicate the work of the UN-based human rights regime, but assist ASEAN member states with manpower, expertise and financial resources, so that they can comply with their existing reporting commitments to the international regime. One way of filling in the gaps where the international regime cannot reach is by providing costs to, e.g., NGOs, for shadow reporting and launching petitions, etc. Concrete assistance could also be given to plugging the gaps between reporting, monitoring and implementation. Another important task is to help member states to commit to adopting and eventually ratifying the ICCPR. The Commission could work with states to set up their own timeline for achieving this goal. The Commission should also commit states to the eventual creation of an ASEAN Charter on Human Rights and an ASEAN Court of Human Rights, which will receive direct petitions from individual and groups, award damages and other measures, and apply meaningful sanctions for non-compliance of legally binding decisions. To this end, each state should commit themselves to working out a timeline with regard to their readiness and contribution to a regional convention and court.
Powers of the Commission
The credibility of the Commission rests on its independence (legal, operational and financial) and its actions. It must be given powers to appoint special rapporteurs, to conduct investigations and on-site visits on its own initiative. These investigatory powers should extend to all state institutions, so that the Commission can, e.g., grant immunity to witnesses, and require officials to answer requests for information. Its obligation to submit findings and recommendations should be to the State and to the ASEAN Summit. However, in the interest of transparency and human rights promotion and education, findings and recommendations should be made public. The Commission may also, upon request, issue an advisory opinion to ASEAN institutions. It is hoped that these non-binding views may in time constitute authoritative interpretations of both international and regional human rights norms.
The experience of ASEAN reveals that “constructive engagement” involving quiet diplomacy and economic carrots has not really worked with some ASEAN states, whose human rights violations have intensified since their admission. The Commission must therefore be empowered to use human rights implementation as one of the conditions for membership. More importantly, the Commission should be allowed to experiment with measures such as temporary expulsion and suspension.
Finally, the Commission should be vested with the power to facilitate conciliation or other dispute resolution methods, so that states and other parties are encouraged to come to the negotiation table. Conciliators, mediators or arbitrators could be engaged to work with the parties to resolve a dispute. The results of such dispute resolution methods should be tabled on the agenda of the ASEAN Summit for debate and discussion
Conclusion
Human rights are not culturally neutral but embody a political ideology. It is expected that states would contest a perceived dominant ideology in order to carve out their own. Human rights discourse reflects this struggle for power, identity and the conceptions of good governance. Protecting and realizing human rights is a political process; it is a question of finding the best way of securing rights and preventing their violation. Now that ASEAN has taken hold of this process, it may benefit from its transformative potential for years to come.
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European Convention on Human Rights, Rome, 4.XI. 1950, Council of Europe European Treaties, ETS No. 5, entered into force Sept. 3, 1953.
African Charter on Human and People’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct 21, 1986. Article 1 stipulates that member states “shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.”
Charter of the Organization of American States, 119 U.N.T.S. 3, entered into force December 13, 1951. Article 106 stipulates that there “shall be an Inter-American Commission on Human Rights” and “an inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission”.
American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
Heyns et al., “A Schematic Comparison of Regional Human Rights Systems” (2003) 3 African Human Rights Law Journal 76.
See African Charter, n 1 above. Duties include, e.g., the duty to respect his parents at all times and to maintain them in case of need, to preserve and strengthen positive African cultural values, and to contribute to the promotion and achievement of African unity (Art. 29). Rights include civil and political, as well as economic, social and cultural (e.g., right to a satisfactory environment) to “third generation” rights such as the right to development and rights of peoples and groups (e.g., the aged and the disabled have the right to special measures of protection and oppressed peoples have the right to free themselves).
Linton, Suzannah, “ASEAN States, Their Reservations to Human Rights Treaties and the Proposed ASEAN Commission on Women and Children” (2008) 30 Human Rights Quarterly 436.
Mahoney, Paul, “New Challenges for the European Court of Human Rights Resulting from the Expanding Case Load and Membership” (2003) 21 Penn State International Law Review 102; O’Boyle, Michael, “On Reforming the Operation of the European Court of Human Rights” (2007) Council of Europe, European Court of Human Rights.
Christopolous, Dimitris and Diamandouros, Nikiforos, “Traditional Human Rights Protection Mechanisms and the Rising Role of Mediation in Southeastern Europe” in Christopolous, D. and Hormovitis, D. (Eds.) The Ombudsman in Southeastern Europe (Athens: Eunomia Project, the Greek Ombudsman, 2006).
For example, in Roach & Pinkerton v US, 1987, the Commission applied Article 1 of the American Declaration of the Rights and Duties of Man and found that in the member states “there is recognized a norm of jus cogens which prohibits the State execution of children”. Cited in Wilner, Grabriel, “Reflections on Regional Human Rights Law” (1995) 25 Georgia Journal of International and Comparative Law 407.
Cerna, Christina, “The Inter-American System for the Protection of Human Rights” (2004) 16 Florida Journal of International Law 195.
Odinkalu, Chidi, “The Individual Complaints Procedures of the African Commission on Human and People’s Rights: A Preliminary Assessment” (1998) 8 Transnational Law and Contemporary Problems 359.
Odinkalu, Chidi and Christensen, Camilla, “The African Commission on Human and Peoples’ Rights: The Development of its Non-State Communication Procedures” (1998) 20 Human Rights Quarterly 235.
ASEAN has been accused of applying a double standard in its admissions policy, e.g., it called for the return of a democratically elected government in Cambodia before it was admitted in 1999, but not one for Myanmar when it was admitted in 1997. Cited in Thio, Li-ann, “Implementing Human Rights in ASEAN Countries: ‘Promises to keep and miles to go before I sleep’” 2 Yale Human Rights & Development Law Journal 1.
An example is the accepted practice of widow burning in some parts of Rajasthan, even though the Indian government has passed a law reaffirming the illegality of it. Radhika Coomaraswamy, former UN Special Rapporteur for Violence Against Women, asks: “What is the point of all these laws if the people do not believe that putting an eighteen-year-old woman on a funeral pyre and denying her life is not a violation of the most basic fundamental right – the right to life?” Cited in Samuels, Harriet, “Hong Kong on Women, Asian Values, and the Law” (1999) 21 Human Rights Quarterly 707.
As stated by Anwar Ibrahim, the former Malaysian Deputy Prime Minister: “We acknowledge that we have much more to achieve in all fields of endeavour. But to allow ourselves to be lectured and hectored on freedom and human rights after 100 years of struggle to regain our liberty and human dignity, by those who participated in or benefitted from our subjugation, is to willingly suffer impudence.” Cited in Samuels, Harriet, “Hong Kong on Women, Asian Values, and the Law” (1999) 21 Human Rights Quarterly 707.
Wilner, Grabriel, “Reflections on Regional Human Rights Law” (1995) 25 Georgia Journal of International and Comparative Law 407.
Thio, Li-ann, “Implementing Human Rights in ASEAN Countries: ‘Promises to keep and miles to go before I sleep’” 2 Yale Human Rights & Development Law Journal 1.
Goodhart, Michael, “Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization” (2003) 25 Human Rights Quarterly 935.
Thio, Li-ann, “Implementing Human Rights in ASEAN Countries: ‘Promises to keep and miles to go before I sleep’” 2 Yale Human Rights & Development Law Journal 1.