ASEAN's new human rights body: A threat to human rights in the region?
On 20th July 2009, Foreign Ministers of the Association of South East Asian Nations (ASEAN) met in Phuket, Thailand. On the same day, ASEAN adopted the Terms of Reference (ToR) for a new ASEAN Intergovernmental Commission on Human Rights (AICHR).
A number of civil society organisations have greeted the decision with cautious optimism, suggesting that it represents a first positive step. They also, rightly, raise some deep concerns.
Their main critique, shared by the UN High Commissioner on Human Rights, is the lack of a clear protection mandate for AICHR. This raises a host of problems, not least the worrying message that the ASEAN region’s human rights problems can be limited to issues of promotion.
The Asian Centre for Human Rights (ACHR) agrees with this analysis but is concerned that there is sufficient evidence to suggest that even cautious optimism over these ‘first steps’ may be misplaced: the new body may actually pose serious threats to human rights in the region.
Some states in ASEAN – those with appalling human rights records – have a clear motive to undermine human rights standards. They are already acting to do so in international fora. There is no reason to suggest that they will not do the same at the regional level and the weakness of the AICHR is powerful evidence of this.
The AICHR’s ToR provides the means, providing decisive influence to countries with the worst human rights records. When it is also understood that the AICHR’s ToR includes a new mandate to draft a new regional standard for the ASEAN region, the extent of the risk becomes clear.
The only point in regional instruments is to expand human rights protection beyond international instruments if they are to serve a purpose as is the case in the Americas, Africa and Europe. ASEAN’s new instrument rests on the assumption that member states can reach consensus on human rights. But in seeking consensus with Myanmar’s Generals on human rights, the logical consequence means that the enjoyment of human rights across the region is now under real threat.
Member states of ASEAN with a positive commitment to human rights would do well to rethink their position. INGOs, NGOs and the OHCHR should do likewise.
II. Comments on the Terms of Reference of the AICHR
Paragraph 1 of the TOR states that the purpose of the AICHR is to “promote and protect human rights and fundamental freedoms of the peoples of ASEAN” and “to uphold the right of the peoples of ASEAN to live in peace, dignity and prosperity”. However, it omits the commitment provided in the ASEAN Charter to “strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN”.  The omission is not surprising.
Consensus: Delegating decision making on human rights to its most abusive member States
The AICHR’s ToR states that “decision-making in the AICHR shall be based on consultation and consensus” (para 6.1 of TOR). This means that any action requires the agreement of each State party representative.
The practice is well established in other regional decision making fora and the result is equally well documented. Consensus decision making favours the lowest common denominator: that is to say, in this case, the country with the lowest human rights standards (or an overseas interest in an abusive State) has the most influence.
These states work to ensure that any action taken by the AICHR does not conflict with their own internal policies or their overseas interest. ASEAN must be seen to take action, no matter how empty - so to do so must reach agreement with all states. The greater the diversity of the states in the region – and the ASEAN region is highly human rights ‘diverse’ – then logically the weaker the outcome. But any decision on human rights, no matter the fora, that requires agreement with Myanmar, is unlikely to support international standards.
The threat to human rights standards in the region
This consensus, modus operandi must be considered with particular concern with regard to the AIHRC’s standard setting mandate. The AIHRC is mandated to:
“develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights” (para 4.2 of the TOR).
So again, the consensus model raises the very serious risk that human rights standards will be lowered in the region and this in turn will weaken international norms.
“Non-interference, respect for the independence, sovereignty, equality, territorial integrity and national identity” are the operating principles of the AICHR.
ASEAN fails to provide a coherent explanation of how the rigidly applied principle of non-interference sits with the very clear universality of human rights norms.
But the limits on the AIHRC powers make clear ASEAN’s position: the AICHR can neither entertain nor investigate any human rights complaint. ASEAN provides no guidance on how it will address governments like Myanmar which are censured by the United Nations.
Evolutionary approach to human rights
The ToR states that the AICHR must not take a “confrontational approach” but adopt “an evolutionary approach that would contribute to the development of human rights norms and standards in ASEAN” (para 2.5 of ToR). It is unclear how this evolutionary approach sits with the very clear immediacy of the obligations in civil and political rights. This is best demonstrated by example: international law does not allow for an evolutionary approach to the issue of massacres.
3. Mandate and functions
Providing abusing states with political cover to continue abuses
The provision of human rights technical services provides further risks. Technical services will be offered to ASEAN member states without independent oversight (para 4.7 of the TOR). This presents the clear risk that the AICHR will providing costless political legitimacy to ASEAN member States with the worst human rights records.
Member states with poor human rights records can respond to international criticism by requesting ASEAN assistance in, for example, human rights awareness training.
The Asian Centre for Human Rights supports technical assistance but would underline that not all technical assistance is necessarily positive. Lessons learned strongly suggest that technical assistance that lacks accountability must be considered high risk in contexts of poor accountability and governance.
Human rights issues are not all based in lack of awareness. Some violations of human rights, not least those in Myanmar, are based in institutional practice. It is unclear that awareness training is, by itself, an appropriate response to an institutional practice.
In any case, it is important to understand that none of the technical services can ever be assessed for effectiveness. ASEAN works on consensus and without independent oversight. From a project management perspective the proposal of the AIHRC to provide services with no accountability raises very deep concerns about the whole area of service provision. But from a political perspective the concern is even greater: ASEAN risks opening a new avenue for abusive States to deflect international criticism of their human rights records. ASEAN member states can request services, can define the service provided – they can choose course in human rights awareness despite the institutional nature of the problem - and can thus create the perception of action on human rights which will provide the state in question a response to the international community.
No impartiality, independence or transparency
The ToR of AICHR excludes any possibility of independence. In the rest of the world members to such inter-governmental mechanisms serve in their individual capacity. In the AICHR, the members continue to represent the government and are accountable to the appointing government (Para 5.2 of ToR) even after their appointment. Any possibility of discretionary action for members is eliminated as the concerned government “shall have the discretion to replace its Representative/Member of the AICHR” (Para 5.6 of ToR).
5. Reporting to: The buck stops with Foreign Ministers
The AICHR is required to submit its studies (Paragraph 4.12 of the TOR) and annual report (Paragraph 4.13 of the TOR) to Foreign Ministers of ASEAN. But there appears to be no obligation for any further action.
About a decade and half ago on 15 September 1994, the Arab Charter on Human Rights was adopted by the League of Arab States. The Economist, in its latest cover story, “The Arab world: Waking from its sleep” states “A quiet revolution has begun in the Arab world; it will be complete only when the last failed dictatorship is voted out”.
The AICHR is unlikely to have any role for voting out the last failed dictatorship in Asia. It rather gives legitimacy and a new means to the last failed dictatorship in Asia, Myanmar, to deflect international criticism on human rights.
 . ASEAN Charter, Article 1 (7)