Since the Association of Southeast Asian Nations [ASEAN] established ASEAN Intergovernmental Commission on Human Rights (AICHR), on October 23, 2009, public expectations towards the promotion and protection of human right have increased significantly.
Although ASEAN was established in 1967, in terms of development of the regional human rights mechanism, ASEAN lags behind the other regional human rights bodies, namely the Inter-American, African and European systems.
ASEAN established AICHR with a very limited mandate. Two of the limitations are that AICHR cannot receive complaints from victims of human rights abuses or civil society; the Commission cannot grant or request protection in order to save human lives.
Based upon the afore-mentioned problems, my view is that the AICHR has to be circumspect in interpreting the legal framework which governs human rights in ASEAN. Thus, AICHR could perform better despite its weak rules and mandates. AICHR should start from a realistic cornerstone, and the Commission could zone in on one specific issue to develop a legal framework of human rights protection.
Lesson from Inter-American
In this regard, I would like to mention regulations, which can be used to reduce the weaknesses of the AICHR.
First, the one in the preamble of the Declaration: “Reaffirming our adherence to the purposes and principles of ASEAN as enshrined in the ASEAN Charter, in particular respect for and promotion and protection of human right and fundamental freedoms, as well as the principle of democracy and the rule of law and good governance.”
Second, the ASEAN Charter states in article 1 paragraph 7 that the goal of the Charter is “To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regards to the rights and responsibilities of the member of States of ASEAN.”
Third, in Article 1 paragraph 1.1 of the TOR, states “To promote and protect human rights and fundamental freedoms of the peoples of ASEAN.”
These legal documents show that AICHR could develop its own mandate to protect human rights. However, currently, it is very difficult to implement, since there have been various obstacles and rejections from most of ASEAN’s country members.
In terms of human right protection in ASEAN, I would like to promote the idea of precautionary measures. Why precautionary measures? What is the benefit for ASEAN?
The Inter-American human rights system is one of the best examples for ASEAN to learn from because there are some similarities between ASEAN and Inter-American. For example, both regions have had a history of dictatorship, suffered from the Cold War and are transitioning to democracy and progressing in promoting human rights.
According to article 63 paragraph 2 of the American Convention and Article 25 and 27 of the 2009 Rules of Procedure of the Commission and the Court, precautionary measures are granted in serious or emergency conditions to prevent irreparable harm to a person or potential victims.
Enforced Disappearances
The Inter-American Commission on Human Rights (IACHR) is one of the regional human rights bodies which is very progressive in dealing with enforced disappearance cases. Between 1970 -1990, enforced disappearances were a significant issue in many countries of Latin America.
However, we have to be realistic and the development of human rights protection under the new regional system should progress gradually. I believe that precautionary measures can become the best way in starting human rights protection in the ASEAN region.
At least three considerations can be used to legitimize this proposal. The first consideration is the widespread practice of enforced disappearances in ASEAN. The second consideration is that many ASEAN countries have yet to ratify the UN Convention for Protection against Involuntary Disappearances. The third consideration is that most involuntary disappearances remain unpunished in ASEAN and enforced disappearances are still going on.
We can use precautionary measures to address enforced disappearances which are still going on in ASEAN’s country members. For instance, in Laos in the case of SombathSomphone, an enforced disappearance against a prominent human rights lawyer from Thailand and Mr. SomchaiNeelapaijit, a student activist in 1997-1998 in Indonesia.
The precautionary measures will become a good starting point in order to develop protection of human rights in the future of ASEAN because the nature of this mechanism is to avoid serious harm or damage.
Based on the legal assessment and the nature of the precautionary measures, the AICHR can begin by convincing the country members of ASEAN that this mechanism will not undermine their national judicial process. I believe that the country members will not resist, because to avoid irreparable harm is better than the Government having to pay out reparations to victims or their families.
By granting precautionary measures in ASEAN, it will strengthen protection against enforced disappearances on the one hand and on the other hand, it can be interpreted as a sign to encourage the countries to ratify the Convention.
An important lesson on the implementation of this mechanism in Latin America is that it can apparently be used to strengthen the national judicial processes. The regional human rights body, by requesting precautionary measures, can ensure the seriousness of the state in protecting its citizens. Some state members of the OAS have applied internal measures to recognize the precautionary measures that are issued by the Commission. An example is the Constitutional Court of Colombia in 2003.
The ASEAN system would benefit from the creation of a mechanism that provides precautionary measures, similar to the one already existing in the Inter-American system on human rights. The protection measure has played a significant role in the Inter-American human rights system. The IACHR could grant protection measures to individuals or communities who face serious threats in particular countries. This mechanism is intended to avoid irreparable harm to persons.
Therefore, the AICHR, as one of the human rights bodies in the world, is entitled to apply precautionary measures to protect human life. For instance, the International Court of Justice (ICJ) and European Court of Human Rights (ECHR) have established a rule of court to issue protective measures. Likewise, the Inter-American Commission on Human Rights in issuing measures propriomotu based on its rules of procedure.
However, I would like to emphasize that although ASEAN does not yet have such a regional court, which can impose sanctions on country members who deliberately ignore the precautionary measures, the AICHR has to convince the country members, that in the future, the dispute between the Commission and the Governments can be addressed by the national courts.
Of course, the AICHR has to ensure that the national court should be independent and open to public scrutiny. Finally, we want AICHR’s teeth to get stronger, albeit very slowly. We believe that in the future the Commission could bite the offenders of human rights in ASEAN.
About the Author: Mr.Chris Biantoro is an Indonesian human rights lawyer and currently working as a program officer on the Indonesian Desk at the Asian Human Rights Commission (AHRC). He can be contacted at chris.biantoro@ahrc.asia
