The crafting of Asean's 'protector' role

The crafting of Asean's 'protector' role

The Asean Intergovernmental Commission on Human Rights (AICHR) was established just over a decade ago to promote and protect human rights in the Association of Southeast Asian Nations (Asean). Yet, its activities, to date, have been more to do with promotion activities, such as workshops, rather than protection measures, such as to receive complaints and to provide remedies.

Currently a panel of experts is due to be set up to review the Terms of Reference (TOR) of the AICHR, but until now, only four countries -- Thailand, Malaysia, Indonesia and Cambodia -- have named their appointees, and none of the appointees are women. There is thus an urgent need for all the other six Asean countries to name their appointees so that the panel can start to function, bearing in mind gender balance. The TOR was approved by Asean's foreign ministers, followed by a political declaration sanctioning its birth at the Cha-am Hua Hin Summit, in 2009, interlinked with the Asean Charter.

Globally, the protection role of a regional human rights commission is based upon a number of functions. The commission should be able to undertake investigations of alleged human rights violations in member countries, as well as to carry out country visits to collect information and access field situations. It should be empowered to accept complaints from affected parties or victims, dialogue to access justice and recommend remedies. Since the commission is not a court, its recommendations are not binding but are very persuasive and can leverage for accountability.

A decade of the AICHR's work attests to difficulties in undertaking the protection functions which are usually expected of a regional commission as mentioned. However, with the current membership of the AICHR, there is a window of opportunity to expand the protection role, in practice, which a review process can help to validate, in principle.

Firstly, in recent times, some and not necessarily all 10 of the country representatives in the AICHR have issued statements expressing concern in relation to key problems, such as on the plight of ethnic communities, particularly the Rohingya situation in Myanmar. Thus the principle of consensus among Asean countries has become more flexible, indicating an X minus Y formula which does not necessarily mean total consensus. On a positive front, in 2020, all 10 representatives converged to call for respect for the full range of human rights to counter the Covid-19 pandemic. A message from that lesson is that where there are key human rights anomalies in Asean and the AICHR cannot simply sit still and remain silent.

Secondly, in 2021, the AICHR agreed to discuss the human rights situation in Asean as part of its agenda. This contrasts with its previous practice which was to avoid examining country situations in the region and to concentrate more on human rights themes which were generalised, without pinpointing needed improvements at the national level.

Thirdly, the AICHR has already undertaken a country visit to one of the Asean countries to learn of human rights developments. The visit took place consensually by means of an invitation from the country concerned. This is now voiced openly in the work plan below as one of the measures projected in the next phase of activities.

Fourthly, its new work plan for 2021-2025 includes various activities which engender the beginnings of channels to receive complaints, measures to address grievances, and openings for remedies. It targets the management of correspondence and "complaints" conveyed to the AICHR for action. A procedure is already emerging whereby complaints can be lodged with the Asean Secretariat, via the Secretary-General. It is then channelled to the AICHR representative concerned and the latter can take up and follow through on the matter at the national level. It is true, however, that there is still uncertainty as to what should happen if there is no progress in processing that communication and if the complaint is left unresolved.

There is also in the work plan the call for a "mechanism for coordinating a human rights based approach and remedies in Asean", such as in regard to the issue of business and human rights. This implies that harm caused by the business sector should give rise to remedial action as advocated by the UN Guiding Principles on Business and Human Rights. On another front, the work plan raises the possibility of a system to address human rights grievances by means of consultations with specific targeting. In particular, it proposes a consultation on victim-oriented protection to counter radicalism and violent extremism.

The above developments are constructive. The next steps should be both strategic and multi-tracked. A strategic approach implies that there should be close interaction between key actors to address the protection issue. Of course, while the review panel is important, a key catalyst will be Asean's foreign ministers, since it is they who will ultimately approve or turn down proposals for reform of the TOR. Yet, precisely because human rights are advocated cross-sectionally, they have to be linked with all the three Asean communities -- political-security, economic and socio-cultural, requiring cooperation with other ministers, complemented by a joint consultative mechanism. There is then the whole panoply of other stakeholders, including civil society.

Multi-tracks dictate that the adjustment process can be propelled through various entry points. First, even without a review panel, much can be done to interpret the existing TOR progressively. For instance, the TOR already mention the possibility of consulting with a variety of entities on the promotion and protection of human rights, and to obtain information from Asean countries in this regard. These can be the basis for receiving complaints and acting thereon.

Second, there is the development of protection activities through the work plan as mentioned. This is a practical development which does not have to wait for review of the TOR. Third, the awaited review panel can help to entrench the various progressive developments identified and craft the protection role of the AICHR further, by stipulating functions more explicitly and more clearly, which are respectful of the well-being of people and the environment, as the preferred Asean Way.

Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. He was formerly UN Special Rapporteur and he served as the Thai Alternate on the Asean High Level Panel which drafted the TOR to establish AICHR.

Vitit Muntarbhorn

Professor of law at Chulalongkorn University

Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok.  He has helped the UN in a variety of  positions and is currently a member of a UN Human Rights Commission of  Inquiry.  This article is derived from his speech at the recent Conference on Asean Traversing 2015:  Challenges of  Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.

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