Regional limitation and Universality of Human Rights Norms2013-Yuyun Wahyuningrum

7/27/2019 Regional limitation and Universality of Human Rights Norms2013-Yuyun Wahyuningrum

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Regional Limitations andUniversality of Human

Rights Norms in ASEAN

Yuyun Wahyuningrum, MA,

Senior Advisor on ASEAN and Human Rights,

Human Rights Working Group (HRWG) Indonesia,

E-mail: [email protected]



Introduction: Regionalism &Human Rights Systems

Regionalism has become a valuable feature in the last coupe ofyears, including in international human rights law. Regional humanrights systems such as in the Americas, Europe and Africa and sub-regional Southeast Asia, share to some extent in the same origins as itsglobal system, the United Nations.

At the same time there is a danger that states who wish to escape

global scrutiny could submit themselves to less exacting regionalhuman rights monitoring and then claim that they should not besubjected to further international supervision.

The question arises whether global and regional systems for international human rights monitoring strengthen, or weaken, eachother. They have the potential to break away from the Universalistaspirations by posing different and lower standards of protection.Regional systems are seen to play a complementary role to theglobal system.

The article explores the level of differences among regional humanrights systems against the international one, including in ASEAN



Each regional system will be assessed based on thefollowing:

1. the role of human rights in the principles andobjectives of the ‘mother/regional organization’ ofwhich the human rights systems form part;

2. human rights and the membership criteria of these‘mother/regional organizations’;

3. the relevant human rights instruments;

4. human rights supervisory bodies and their mandates;

5. criteria for appointment of members of supervisorybodies

6. supervision of implementation of judgments;

7. complementarity between the regional and theglobal systems;

8. available resources



Organization ofAmerican States (OAS)

Principles and Objective: The Charter of the Organization of American States(OAS) was adopted in 1948. Human rights are not integral part of the purposeand principles of the OAS, but recognizes the Inter-American Commission onHuman Rights as an organ of the OAS.

Membership criteria: All 35 independent states of the Americas are membersof OAS.

Human rights instruments: The American Declaration of the Rights and Dutiesof Man was adopted in April 1948. The American Convention on HumanRights was adopted in 1969. The OAS has adopted two protocols to theAmerican Convention, dealing with economic, social and cultural rights, andthe death penalty respectively.

Supervisory bodies and their mandates: The Inter-American Commission onHuman Rights was established through a resolution of the OAS in 1959. TheInter-American Court of Human Rights was established in 1979.

One of the mandates of the Inter-American Commission is to undertake on-site visits which result in the publication of country reports on the human rightssituation in the country under investigation. The Commission further has anumber of thematic rapporteurships, similar to the special rapporteurs of theUnited Nations and shall hear individual complaints alleging violations of theConvention or the American Declaration. The Commission may adoptprecautionary measures ‘in serious and urgent cases’



Organization ofAmerican States (OAS)

Appointment and criteria for appointment of members of the supervisorybodies: The seven members of IACHR are elected in their personalcapacities by the OAS General Assembly from a list of candidatesnominated by member states. The members are required to be ‘persons ofhigh moral character and recognized competence in the field of humanrights’. The independence of the two institutions is clearly a stated objective.

Supervision of implementation of judgments: According to article 65 of theAmerican Convention, the Court shall inform the OAS General Assemblyabout non-compliance with its judgments. The Assembly has rarely takenaction in this regard and it has been left to the Court itself to develop asystem of supervising compliance with its judgments.

Complementarity: Inter- American Commission and Court will not consider acomplaint that has served before a UN treaty body.

Resources: The Inter-American Commission has been allocated around US$3.5 million annually from the OAS budget and receives around US$ 3 million incontributions from donors. The Court has a budget of approximately US$ 1.5million allocated by the OAS. In 2008 the Commission had 70 staff membersand the Court had 21 staff members



The Council of Europe

Principles and objectives: The Statute of the Council ofEurope (CoE) was adopted in 1949. Human rights are part ofthe purpose of the CoE. Human rights concerns are the mainreason for its existence.

Membership criteria: The human rights record of the state

concerned is one of the key factors that determine whether a state may join the CoE, and it may also lead to its expulsion.Membership of CoE is by invitation only and requires that thestate is willing and able to fulfill the obligations.

Human rights instruments: Convention for the Protection ofHuman Rights and Fundamental Freedoms (European

Convention on Human Rights) on 4 November 1950.According to the preamble of the European Convention, theEuropean system was established ‘to take the first steps for the collective enforcement of certain rights stated in theUniversal Declaration’. The stated objective is therefore thatthe regional system will serve as a mechanism to enforceglobal norms.




Supervisory bodies and their mandates: European Commission of Human Rights to serve asa screening mechanism and could take the case to the European Court of Human Rights.Later the Commission was abolished through Protocol 11 to the Convention, which enteredinto force in 1998. The Commission and Court were replaced by a new permanent Court.Since then individuals in the 47 member states can access the Court directly.

In 1999 the first CoE Commissioner for Human Rights was appointed. The Commissioner works through country visits, thematic recommendations, awareness raising and assistanceto national human rights structures. Compliance with the European Social Charter is

monitored by the European Committee of Social Rights. The Committee of Ministers of theCoE and the Parliamentary Assembly also play a role in the state reporting system which isthe main method of monitoring compliance with the European Social Charter. TheEuropean Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides for an innovative monitoring system with preventative visits to places ofdetention.At the heart of the CoE system consequently is its protective mandate, based onindividual complaints, although this is supplemented by the promotional function of for example the Commissioner for Human Rights.

Appointment and criteria for appointment of members of the supervisory bodies: Thenumber of judges of the European Court of Human Rights is equal to the number of statesparties to the European Convention which, as noted above, is currently 47.46 The judges ofthe Court are elected by the CoE Parliamentary Assembly from a list of three candidatesnominated by the member state concerned.




Supervision of implementation of judgment: According to article 46(2) ofthe European Convention, the Court shall transmit its final judgment to theCommittee of Ministers of the CoE ‘which shall supervise its execution’. TheEuropean system of supervision is undoubtedly the most effective of thethree regional systems, and there is a high level of compliance, at least inrespect of the payment of compensation, by member states.

Complementarity: The Court will not consider a case which has ‘alreadybeen submitted to another procedure of international investigation or settlement and contains no relevant new information. Some member states of the Council of Europe have entered reservations

Resources: The budget of the European Court is provided for under thegeneral budget of the CoE. The allocation for the Court in 2008 was amassive 53.46 million Euros,51 around 25% of the CoE budget. At the end of2008 the registry of the Court had 626 staff members. In terms of its case

load but also its resources, the European system is in a different leaguefrom the other two regional systems.



African Union

Principles and objectives: The Charter of the Organization ofAfrican Unity (OAU) was adopted in 1963. One of its purposes: thepromotion of ‘international co-operation, having due regard tothe Charter of the United Nations and the Universal Declaration ofHuman Rights’.

The AU replaced the OAU in 2002. The Constitutive is replete withreferences to human rights and the objectives of the AU include to

‘promote and protect human and peoples’ rights in accordance withthe African Charter on Human and Peoples’ Rights and other relevanthuman rights instruments’.

Membership criteria: There are no human rights criteria for a stateto become a member of the AU. However, ‘sanctions’ can beadopted against a member state which ‘fails to comply with thedecisions and policies of the Union’.

Human rights instruments: The African Charter on Human andPeoples’ Rights (African Charter), adopted in 1981. The Charter entered into force in 1986 and has been ratified by all 53 member states of the African Union.



African Union

Supervisory bodies and their mandates: The African Commissionmonitors compliance with the African Charter through statereporting; complaints by states, individuals or NGOs; specialrapporteurs and working groups. The Commission also adoptsresolutions interpreting provisions of the Charter, and mayindicate provisional measures ‘to avoid irreparable damagebeing caused’.

Protocol on the African Court on Human and Peoples’ Rights wasadopted in 1998. Individuals do not have the right to approach theCourt directly unless the member state has made a specialdeclaration to this effect, in which case the individual can seeminglybypass the Commission.

There is a committee monitoring compliance with the African Charter on the Rights and Welfare of the Child

Appointment and criteria for appointment of members of thesupervisory bodies: The eleven members of the Commission andthe eleven members of the Court are nominated by member states and elected by the AU Assembly.



African Union

Supervision of implementation of judgments: theExecutive Council of the AU, shall be notified of the judgments of the Court and monitor their execution.Since no decision has been handed down by the

Court, it remains to be seen how this will be appliedin practice. There is not an established tradition ofsupervision of the decisions of the Commission.

Complementarity: The Commission will not consider a

case which is pending before or has been dealt withby another international human rights body.

Resources: There has been an increase in theresources available for the Commission in 2007.

i i i i



Some similarities acrossregional systems

The promotion and protection of human rights should be recognizedas an objective and guiding principle of the ‘mother organization’ inits founding treaty.

Membership to the ‘mother organization’ should be conditionedupon observance of human rights and democracy criteria, in termsof the admission and possible expulsion of member states or lesser

forms of sanction.

There should be an effective mechanism in the ‘mother organization’ to follow up the implementation by states of decisionsby the human rights supervisory bodies.

A regional human rights system should be created by a treaty to

which states that are members of the relevant regional organizationcan become party. The treaty should clearly set out the applicablerights catalogue, either in original terms or by reference to other international instruments, that does not lower the global standards ofhuman rights protection and if possible poses higher standards.

S i il iti




The regional human rights systems are also subject to other international human rights supervisory systems, which should begeared towards complementarity. A regional system should notconsider cases that have already been decided on the globallevel.

Regional human rights supervision should be done by a humanrights monitoring body (such as a commission) or a court withboth mandate: the promotion and protection of human rights.

The monitoring body and court, where established, must becomposed of independent and impartial experts. The

independence and impartiality of the members must beguaranteed through: Confirmation hearings and election in anopen and transparent manner, Privileges and immunities.

Proper procedures for the removal of commissioners and judges.

S i il iti




Where a regional human rights monitoring body such as acommission is established, its mandate should include: On-site visits to investigate and report on the human rights

situation in member states. Effective response to emergency situations. Appointment of independent special rapporteurs, working

groups etc., as may be needed. Consideration and investigation of individual complaints in

respect of alleged human rights violations by member states. Publication and dissemination of reports and decisions. The

monitoring body itself, and not another decision-making bodyof the regional organizations, should decide whether and what

to publish. Transparency should be the norm. Interaction with civil society organizations, national human

rights institutions and other international mechanisms with ahuman rights agenda.

Inter-state communications and state-reporting mechanism.

S i il iti




Where a regional court with a human rights mandate isestablished, it should hear cases as referred to it by the relevanthuman rights monitoring body, member states or individuals. Thecourt should have contentious as well as advisory jurisdiction. Thecourt’s judgment should be widely disseminated.

The commissioners and judges must be broadly representative ofthe region in terms of gender, legal systems, language andgeography

The relevant regional organization has the responsibility to ensurethe continuing effectiveness of the supervisory bodies that they

establish, in consultation with civil society.

The regional organization has to provide the secretariats of thesupervisory bodies with adequate resources. The commissionersand judges should control the appointment of key staff



ASEAN

Principles and Objectives: Human rights arementioned in the Charter: preamble, purposes,principles and Article 14 mandates theestablishment of ASEAN human rights body.

Membership criteria: no reference to humanrights in respect of membership of ASEAN in itsCharter. ASEAN’s membership is based ongeography.

Human Rights Instruments: in November 2012,ASEAN adopted ASEAN Human RightsDeclaration. Before AHRD, ASEAN has adopted…



Norms/Instruments

Children

• Declaration onCommitmentson for Childrenin ASEAN

(August 2001)• Ha Noi

Declaration onTheEnhancementof Welfare andDevelopment

of ASEANWomen andChildren ; 28Oct 2010

Women

• Declaration onthe Eliminationof ViolenceAgainst Women

in the ASEANRegion; 30 June2004

• Ha NoiDeclaration onTheEnhancement

of Welfare andDevelopmentof ASEANWomen andChildren ; 28October 2010

Trafficking

•1997 ASEANTransnationalCrime

•ASEAN DeclarationAgainst Traffickingin PersonsParticularlyWomen andChildren; 29November 2004

• ASEANPractitioner Guidelines onEffective CriminalJustice Responsesto Trafficking inPersons (2007)

•Leaders JointStatements on TIPsin Southeast Asia,May 2011.

Migrantworkers

•ASEAN Declarationon the Protectionand Promotion ofthe Rights ofMigrant Workers 13January 2007,Cebu, Philippines



AHRD AHRD lies in its claims of adherence of that the enjoyment of human

rights and freedoms must be balanced with the performance ofduties (Article 6), the regional and national context (Article 7),limitation of rights (Article 8), and reference to national laws i.e.regarding the right to participate in the government (Article 25.1),right to vote (Article 25.2), right to form ad join trade union (Article27.2).

AHRD excluded the freedom of association, which was initiallyappeared in Article 24 along with the freedom of peacefulassembly.

AHRD emphasizes a supreme reference on the national laws at theregional level, rather than as a platform to universalize human rightsand expand ownership on international norms at the regional level.

Shortcomings: The first is that it renders the rights stipulates in the Declaration as too

restrictive to regional and national context, some limitation and one’sperformance to her/his duties, in its implementation. This point will makerights that have been extensively elaborate in the Declarationmeaningless, as some countries do not guarantee human rights in their constitutions and several national laws provide restriction rather protection of rights.



AHRD

The second is that the Declaration is perceived as tooambiguous. While number of ‘regional and nationalparticularities’ articles are in the body of Declaration,its Phnom Penh Statement guarantees the compliancewith the international norms

AHRD also reflects the continuing ambiguity of ASEANMember States on their commitment on human rights.

Finally, the Declaration is in conflict with internationalhuman rights norms. AHRD takes general principles as

to limit rights rather than expanding them, provides noguarantee to freedom of association; deny ethnicminority and the rights of indigenous peoples; andadherence to national laws and context; present theuseless at best and at worst harmful for human rights.



ASEAN Human Rights Systems

Conventions:Norms/

Instruments

Commission/Committee ASEAN HumanRights Court??

ACWC2010

AICHR

2009 ACMW2008

Three Cs in Human Rights Systems



ASEAN

Supervisory bodies and their mandates: The Terms ofReference (TOR) of what is now called the ASEANIntergovernmental Commission on Human Rights(AICHR) was adopted by the ASEAN Ministers ofForeign Affairs on 20 July 2009.

The AICHR is consequently not established through atreaty. The TOR do not include any rights catalog,though it provides that the Commission should ‘upholdinternational human rights standards as prescribed bythe Universal Declaration of Human Rights, the ViennaDeclaration and Programme of Action, andinternational human rights instruments to which ASEANMember States are parties’. While there is a clear reference to international human rights standards,other provisions of the TOR place a strong andarguably countervailing emphasis on national andregional particularities.



AICHRMODALITIES, PRINCIPLES, NATURE

non-interference

evolutionaryapproach

consultation

consensus

consultative

inter-government

al body



ASEAN

Appointment and criteria for appointment of members of thesupervisory bodies: As indicated by its name, the ASEANIntergovernmental Commission on Human Rights is not intended tobe an independent body; it is an intergovernmental consultativebody. Its members are not expected to be independent. Eachmember state will appoint a ‘representative to the AICHR who shallbe accountable to the appointing government’. A representative is

appointed for a term of three years, but may be recalled by his or her government before the term comes to an end.

Supervision of the implementation of the judgment: N/A

Complementarity: N/A

Resources: AICHR funding comes from Member State’scontribution of USD 20,000 to its annual funds. AICHR cannotreceive funds from external partners for the purpose ofhuman rights protection



ASEAN

It is clear from the above that the AICHR is in nature verydifferent from the three established regional systems.

While it is widely recognized that the creation of this bodycould be an important first step towards more robust

protection of human rights in the region, it should berecognized that, because safeguards such as provisionsconcerning the independence of the Commissioners areabsent, there is a constant danger that as this body may beused to shield rather than to stop human rights violations.

The door for AICHR’s development or evolution of a moreindependent body with stronger protective powers is leftopen by para 9.6 of the TOR, which provides that the TORshall be reviewed after five years.



TOR REVIEW 2014

AICHR shall assess its works and submit recommendations for the consideration of the Foreign Ministers. For this purpose, thereview should be inspired by the 2009 Hua-Hin Declaration tolaunch AICHR, to include:

AICHR to provide a forward looking strategy to strengthenregional cooperation on human rights in the region,

AICHR to serve as a vehicle for progressive social developmentand justice and the full realization of human dignity and theattainment of higher quality of life for ASEAN people,

AICHR to receive full support and provision of adequateresources by ASEAN member states,

AICHR to acknowledge the contribution of stakeholders in thepromotion and protection of human rights in ASEAN, and

encouraged their continuing engagement and dialogue, AICHR to develop in evolutionary approach in achieving

cooperation on human rights as an overarching institution,

AICHR should balance its mandate on promotion and protectionof human rights.

Recommendation for



Recommendation forReview:

AICHR should function as human rights monitoring body, whichsupplement and complement the national and international systems.

The emerging good practices for human rights institutionalisation inASEAN, such as the Human Rights Dialogue that was initiated byIndonesia in 2013, the Retreat to discuss human rights issues duringAICHR regular session that was initiated by Brunei Darussalam, the visit

of prison that was introduced by Thailand and the possible practice toobserve court, need proper and positive follow-up internally in AICHR.

AICHR members must be composed of independent and impartialexperts. The independence and impartiality of the members must beguaranteed through the confirmation hearings and election in anopen and transparent manner

AICHR members must be broadly representative of the region in termsof gender, legal systems, language and geography.

The retreat was occurred during the 12th AICHR’s meeting in Jakarta,May 2013. AICHR allocated two hours retreat to discuss specific issuesrelated to the human rights of Rohingya in Myanmar and the missingactivist, Sombath Somphone of Laos.

Recommendation for



Recommendation forReview

AICHR should take necessary measure to ensure that ASEAN exerciseits responsibility to ensure the continuing effectiveness of thesupervisory bodies that they establish, in consultation with civilsociety.

The regional organisation has to provide the secretariats of thesupervisory bodies with adequate resources. The members should

control the appointment of key staff.

In long term, AICHR should consider to provide recommendation toASEAN Foreign Ministers to establish human rights court to hear cases.

AICHR needs to focus its next three years to gain recognition from

the rest of ASEAN bodies and organs as the overarching body in theregion deal with human rights with proper engagement andsubstantive cooperation.

For this purpose, AICHR have to to invite them to series of meetings andidentify human rights gaps, interests and needs for cooperation. Moreimportantly, AICHR should ensure that alignments and cooperation withACWC and ACMW will be materialized.

Challenges ahead in



Challenges ahead inASEAN

Consensus way of making decision?

Non-interference or the absence of politicalwill?

Deficit of democracy, good governancerule of law culture

Different political systems and practices



Final Words

Regionalism offers room for local resonance andconsequently ownership in respect of the norms espoused aswell as the enforcement process that the global systemcannot hope to do. Regional mechanisms are simply morelocalized agents of the global human rights project.

Universality is too often simply seen as the existence of a singleset of norms that is applicable to all people, at all times and allplaces. Nevertheless, regionalism in the field of human rightswas not popular/invisible at the United Nations.

In fact, the determination of what the contents of those‘universal norms’ should be in the first place. Unless there is

participation by people from around the world in determiningwhat those norms are, they can hardly be described asuniversal.

Regional and sub-regional mechanisms, with all the potentialfor conflict which they entail, are a vital part of this enterpriseto make the human rights project more inclusive.

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Regional limitation and Universality of Human Rights Norms2013-Yuyun Wahyuningrum