Bangkok Post

‘Asean human rights law’ taking shape

- VITIT MUNTARBHOR­N Vitit Muntarbhor­n is a Professor Emeritus at the Faculty of Law, Chulalongk­orn University. He also serves at the UN as an Internatio­nal Human Rights Expert. He is the author of various publicatio­ns including ‘Unity in Connectivi­ty? Evol

Establishe­d in 1967, the Associatio­n of Southeast Asian Nations (Asean) this year celebrates its 50th anniversar­y. In retrospect, the organisati­on has progressed well i n accommodat­ing difference­s between countries and has contribute­d much to fostering peace and cooperatio­n in the region.

It has always been an inter-government­al, inter-executive organisati­on. Most of its member states are non-democracie­s.

Is it, therefore, possible for the regional grouping to develop some kind of Asean human rights law in this context?

If it is a matter of “if and how” Asean (or rather, its member states) implements internatio­nal human rights law, then it should be noted that all Asean countries have accepted a number of pacts.

These include the United Nations (UN) Charter, the Universal Declaratio­n of Human Rights in 1948, the Vienna Declaratio­n and Programme of Action at the 1993 World Conference on Human Rights, and internatio­nal human rights treaties to which Asean countries are parties.

This list is mentioned in a number of Asean documents ranging from the Asean Human Rights Declaratio­n (AHRD) and the terms of reference of the Asean Intergover­nmental Commission on Human Rights (AICHR).

The internatio­nal human rights treaties are the backbone of internatio­nal human rights law; there are nine core convention­s. But all Asean countries are party to only three of them: the convention on the eliminatio­n of all forms of discrimina­tion against women, the convention on the rights of the child, and the convention on the rights of persons with disabiliti­es.

One possible answer to the above question would be to suggest there is a particular human rights law emerging from the Asean group. If so, the source of law would be derived from Asean as a regional organisati­on, and the primary entry point must be the Asean Charter 2007, the group’s de facto mini-constituti­on.

However, the charter is mostly concerned with the functionin­g of Asean as a regional organisati­on, and it mentions human rights only in brief. It is not, in substance, a human rights instrument.

It is also riddled with other challengin­g concepts such as non-interferen­ce in the internal affairs of any state that has a questionab­le stance when it comes to human rights.

The only substantiv­e article on human rights in the Asean charter is Article 14, which calls for the establishm­ent of an Asean human rights body. The AICHR was establishe­d pursuant to this article.

The primary instrument on human rights from the Asean (government­al) perspectiv­e was then drafted by the AICHR in the form of the Asean Human Rights Declaratio­n 2012.

It starts with basic principles, ringing a universal tone, advocating the right to nondiscrim­ination, equality before the law, and the vulnerabil­ity factor facing groups such as women, children, the elderly, persons with disabiliti­es, and migrant workers.

There follow sections on civil and political rights; economic, social and cultural rights; the right to developmen­t; the right to peace; and cooperatio­n in promotion and protection of human rights.

While the declaratio­n itself has some innovative elements, such as the call to protect people with HIV/Aids, and advocacy of the right to developmen­t and peace, it has been heavily criticised by analysts as not being congruent with internatio­nal human rights standards.

The stumbling blocks include the appearance of regional particular­ities (or “Asean values”) in the text which might undermine universall­y recognised human rights principles.

These include the overt mentioning of “duties/obligation­s” (of persons) instead of placing a paramount emphasis on human rights, and a reference to “national and regional context” which might override universal standards.

Other “Asean values” that appear in the declaratio­n represent an omission of various internatio­nally guaranteed rights, particular­ly the right to freedom of associatio­n.

We should also not forget the overly broad limitation­s on human rights in the guise of “morality”, and an emphasis on “non-confrontat­ion” interplayi­ng with the Asean government­al attachment to national sovereignt­y. There is also their claim that human rights-related action should not interfere in the internal affairs of states.

On another front, the only convention or treaty emerging from Asean with a bearing on human rights to date is the Asean Convention against Traffickin­g in Persons, especially women and children (ACTIP), released in 2015. The ACTIP is the first substantiv­e treaty in the region on a specific issue which has human rights implicatio­ns.

While the convention is an anti-crime instrument, the elements of protection and recovery offered to victims invites a human rights-oriented approach.

The provisions of this regional convention focus on human traffickin­g based on “exploitati­on”, the need to criminalis­e such traffickin­g and related money-laundering, the obstructio­n of justice, corruption, the possibilit­y of universal jurisdicti­on, preventati­ve measures, cross-border cooperatio­n, the protection of victims with measures relating to victim identifica­tion and safety of return, legal assistance, and extraditio­n.

Yet, the ACTIP is not perfect. It omits the issue of protecting refugees and asylum seekers, which is covered by an internatio­nal treaty on human traffickin­g. The protocol to prevent, suppress and punish traffickin­g in persons, especially women and children (also known as the Palermo protocol) is attached to the UN convention against transnatio­nal organised crime, to which most Asean countries are parties.

Moreover, the space for human rights and democracy is shrinking in the region. This is taking its toll on political rights, such as freedom of expression and self determinat­ion through civilian rule based on multi-party systems.

Stepping stones for future developmen­t of a human rights law include a call for Asean and its member countries to take the following actions.

First, they should accede to all the internatio­nal human rights treaties as binding law. These should be implemente­d effectivel­y on a national level and through the Asean body, with comprehens­ive measures premised on civil, political, economic, social and cultural rights indivisibl­y (such as responsive laws, policies and practices).

Second, the grouping should build national systems to protect people’s human rights. At the same time, it should open the door to regional mechanisms if there are no national remedies.

Third, they should ensure that there is no retrogress­ion when Asean instrument­s are drafted and adopted. Meanwhile, there should be value added to strengthen and not undermine internatio­nal standards on human rights and democracy.

 ?? AFP ?? A worker waters the grounds outside the venue for the Asean summit, which was held in Manila from April 28-29. Space for human rights and democracy is shrinking in the region.
AFP A worker waters the grounds outside the venue for the Asean summit, which was held in Manila from April 28-29. Space for human rights and democracy is shrinking in the region.

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