Lessons for an ASEAN human rights system
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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,1 which binds states to specific treaty obligations. This was followed by the establishment of a commission and a court in 1954 and 1959 respectively.
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 one18 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.19 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.
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. 17 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. 18 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. 19 Wilner, Grabriel, "Reflections on Regional Human Rights Law" (1995) 25 Georgia Journal of International and Comparative Law 407. 20 See Linton, n 7 above. 21 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. 22 Goodhart, Michael, "Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization" (2003) 25 Human Rights Quarterly 935. 23 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. ?? ?? ?? ?? 2007981954 1
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