Human rights in Asean remain precarious

Human rights in Asean remain precarious

One of the outcomes of the 21st Summit of the Association of South East Asian Nations (ASEAN) in Phnom Penh, was the adoption of the ASEAN Human Rights Declaration by the ten member states. (File photo)
One of the outcomes of the 21st Summit of the Association of South East Asian Nations (ASEAN) in Phnom Penh, was the adoption of the ASEAN Human Rights Declaration by the ten member states. (File photo)

The region covered by the Association of South-east Asian Nations (Asean) is one of major contrasts. Some communities are rich, while others are poor. Several countries are non-democratic and democratic proponents walk a political tightrope. Situations of violence pervade parts of the region, despite the tranquil havens also found here.

The situation of minorities, indigenous peoples and displaced persons (internal and cross border) remains precarious in a number of contexts. While civil society is allowed much space in some countries, in others the space for participation is extremely limited.

The welcome reality is that human rights are now legitimised in the Asean region -- at least in form -- due to a variety of commitments. First, the region as a whole agrees to abide by the Universal Declaration of Human Rights 1948, the Vienna Declaration and Programme of Action of the World Conference on Human Rights 1993 and the international human rights treaties to which Asean countries are parties.

Currently, the three core human rights treaties (out of nine) to which all 10 countries are parties are 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. However, the majority of Asean countries have not ratified the Statute of the International Criminal Court (ICC), indicating hesitation towards the issue of accountability.

Vitit Muntarbhorn is Professor Emeritus of Law at Chulalongkorn University, Bangkok. He has helped the UN in a variety of positions, including as UN Special Rapporteur. This is an excerpt from his presentation at the regional meeting on 'Asean at Fifty' to be held in Bangkok on Thursdday and Friday.

Second, all 10 countries have participated in the UN Human Rights Council's Universal Periodic Review (UPR) and have opened the door to a wide array of recommendations from other states on the needed human rights improvements, even in regard to areas where they are not parties to the core human rights treaties.

Third, the Asean Charter 2007 referred explicitly to human rights, democracy, the rule of law and good governance, as key principles of Asean and called for establishment of an Asean human rights body. This has been coupled with various blueprints and plans of action, especially linked with the Asean Political-Security Community and Asean Socio-cultural Community. The current projection is to forge ahead together to 2025, after the realisation of the Asean Community in 2015.

Fourth, in addition to the Asean Charter, the regional grouping has begun to adopt instruments which have direct bearing on human rights in the region. In 2007, Asean adopted the Declaration on the Rights of Migrant Workers, followed by the Asean Human Rights Declaration (AHRD) in 2012. Recently in 2015, it finalised the Asean Convention against human trafficking, especially of women and children.

The instrument which has given rise to most debate is the AHRD. It advocates a cooperative approach to human rights and has some innovative elements, such as the call to protect persons with HIV/Aids, and advocacy of the right to development and peace. Yet, the AHRD has been heavily criticised by analysts as not being congruent with international standards. The stumbling blocks include the appearance of regional particularities (alias Asean values?) in the text which might undermine universally recognised human rights.

Fifth, regional mechanisms on human rights promotion and protection have now been set up. The Asean Intergovernmental Commission on Human Rights (AICHR) is the offspring of the Charter. There are two siblings: the Asean Commission on the Rights of Women and Children (ACWC) and the Asean Committee on the Rights of Migrant Workers (ACMW).

Their mandates and functions are currently more geared to the promotion of human rights (eg, seminars, education and research studies) than the protection of human rights (eg, monitoring, investigations, channels to receive complaints from victims, provision of remedies, and accountability of those responsible for violations, particularly officials).

How then to improve access to redress if there are no remedies at the regional level? The quest for channels of complaint, investigations, remedies and accountability has to be explored at the national level, and where there is no remedy at that level, the search has to reach higher to the international/multilateral level, such as the UN.

Importantly, in five Asean countries today (Indonesia, Malaysia, Myanmar, Thailand and the Philippines), at the national level there are mechanisms in the form of National Human Rights Commissions which can receive complaints, undertake investigations and call for remedies and accountability.

All Asean countries also have courts and other channels for receiving grievances, although access and quality of decision-making varies per setting.

Where the national setting is unable or unwilling to protect human rights, it is important to access the international system available. This includes the UN related human rights treaties referred to earlier, all of which have monitoring mechanisms in the form of human rights committees, the UPR and the variety of international monitors set up by the UN known as Special Procedures, such as the Special Rapporteurs on Myanmar and on Cambodia, together with UN human rights offices and country teams.

Recourse to the international setting can be improved by means of more ratification and implementation of the core human rights treaties, more accession to the Statute of the ICC, more leverage through the UPR and more access to the UN Special Procedures, related complaints mechanisms and UN presences in the region and beyond.

These need to be coupled with the advent of more democracy in the region, together with free and fair elections, multi-party systems, space for public participation respectful of freedom of speech and peaceful assembly, broad monitoring by civil society actors and an end to reprisals against them.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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