Asian Human Rights System
Author: Adamantia Rachovitsa
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Required knowledge: sources of international law
- Understand the reasons that the Asian human rights system takes a different path comparing to other regions;
- Understand the notion of "Asian values" in human rights law;
- Get familiarised with major human rights developments in the ASEAN.
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A. Understanding Asia and Its Reluctance Towards International (Human Rights) LawEdit
Asia is the only region in the world which lacks a regional system for the protection of human rights. A few remarks are warranted so as to understand why this is so. Any hastiness of the non-Asian observer in expecting of Asia what may be expected of other regions in the world may be misguided. Conceptualising Asia as a region, that is, a geographical area with sufficient historical, economic, social, religious and cultural cohesion, is a complex matter. Asia consists of a great number of states: fifty-three members of the Asia-Pacific Group at the UN, out of a hundred and ninety-three UN member states, Asia is by far the most populous region in the world: 4.5 billion people out of 7.6 billion on the planet. Despite commonalities among states and peoples, the diversity within Asia is remarkable, inhibiting a systematic, coherent approach to regional development.
The absence of regional human rights instruments and institutions needs to be understood within the broader framework of Asian states' engagement with international law. Asian states are the least likely to accept international obligations. They tend to be mistrustful of delegating sovereignty, either on an international or regional basis. This is due to the diversity in the continent and the influences of the great powers (China, India and Japan). The shadow that the experience(s) of colonialism casts into the present should not be understated either (e.g., India and colonialism, China and unequal treaties, the trials that followed the Second Words War in Japan). These experiences have cemented the perception that international law is primarily an instrument of political power to be used selectively.
Against this background, regional human rights law in Asia is considerably less developed and amorphous compared to other regions. The deepening of human rights law is more likely to occur at the subregional level - in smaller and more coherent groupings of states. At the same time, Asian states of course have existing human rights obligations under customary international law and under the UN human rights framework (the UN Periodic Review and obligations stemming from the ratification of UN human rights treaties). Notably the recent growth of national human rights institutions in the region, in accordance with the Principles relating to the Status of National Institutions, is another significant piece of the puzzle of the advancement and implementation of human rights.
B. The "Asian Values" DebateEdit
A rare occasion when Asian states formed and presented a united front on their position on human rights was their contribution to the 1993 World Conference on Human Rights. They drafted and submitted the Bangkok Declaration, which embodies the so-called "Asian values". Asian values is a term coined by Asian officials in order to contest the Western conceptualisation of civil and political freedoms. A major claim raised in this regard is that communitarian values and duties of the individual towards society should be placed on an equal footing to (or even take precedence over) individual freedoms. Paragraph 8 of the Bangkok Declaration reads:
While human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.
The provision asserts the need for a certain deference to national and regional particularities. It suggests that international lawmaking or the interpretation and application of human rights provides room for deviations from universal human rights norms. The compromise that made its way into the final text of the Vienna Declaration and Programme of Action, adopted by consensus by the World Conference on Human Rights and subsequently by UNGA Res 48/121, reads:
While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be born in mind, it is the duty of states regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (para 5).
The 1998 Asian Charter on Human Rights, which is a peoples' charter drafted by civil society in response to the Bangkok Declaration, holds that the idea of "Asian values" legitimises the 'deprivation of the rights and freedoms of ... citizens, which are denounced as foreign ideas inappropriate to the religious and cultural traditions of Asia'. A distinction is also drawn between Asian values as a 'thin disguise for ... authoritarianism', on the one hand, and the relevance of bearing in mind the social, economic and cultural contexts in which rights are to be enjoyed, on the other.
C. Developments in the Association of Southeast Asian Nations (ASEAN)Edit
While the number of human rights developments have taken place (e.g., South Asian Association for Regional Cooperation) or are likely to take place (e.g., Pacific Islands Forum) in specific subregional corners of Asia, the Association of Southeast Asian Nations (ASEAN) stands out for its progress. In 2007, ASEAN member states decided to deepen their political, security-related, economic and socio-cultural cooperation by creating the ASEAN Charter. Respect for sovereignty, non-interference in domestic affairs and the consensus approach remain the foundational principles of states' engagement. In a surprising move, the protection of human rights and social justice features prominently in the Purposes and Principles of the ASEAN Charter. It was additionally agreed that a human rights body would be established, which eventually became the ASEAN Intergovernmental Commission on Human Rights (AICHR).
I. The ASEAN Intergovernmental Commission on Human RightsEdit
The AICHR, established in 2009, is an intergovernmental, consultative body. Its decision-making is based on consultation and consensus, following a non-confrontational approach. The AICHR's mandate is to promote and protect human rights in the regional context, bearing in mind different cultural and religious backgrounds. It is specifically tasked with:
- developing strategies and capacity-building;
- consulting, and engaging in dialogue with other bodies and institutions, including civil society; and
- enhancing public awareness of human rights.
The AICHR has been criticised for lack of engagement with civil society organisations and the general public. Looking to the future, pursuant to its existing mandate the AICHR enjoys leeway to engage more thoroughly with the development of human rights norms and standards in ASEAN.
II. The ASEAN Human Rights DeclarationEdit
Since the 1993 Bangkok Declaration, states in Asian and ASEAN fora have made many unsuccessful attempts to form a consensus on drafting a human rights instrument. These attempts came to fruition in 2012, in the context of ASEAN, with the adoption of the ASEAN Human Rights Declaration. The drafting of the Declaration is an achievement of the AICHR. The Declaration provides for both civil and political rights (Articles 10-25) and economic, social and cultural rights (Articles 26-34), plus the right to development (Articles 35-37) and the right to peace (Article 38). Following in the footsteps of the Bangkok Declaration, the ASEAN Human Rights Declaration stresses that 'the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds' (Article 7). The Declaration also emphasises that the enjoyment of human rights must be balanced with the performance of corresponding duties towards other individual and the community (Article 6). The rights are drafted almost telegraphically as to their protective scope, and the limitations on human rights provided are broad (Article 8). This may be understandable, since declaration are not commonly drafted in the same details as treaties. Some of the foregoing characteristics are reminiscent of the features of the African Charter on Human and Peoples' Rights. Notwithstanding the non-binding nature of the ASEAN Human Rights Declaration, different facets of its potential impact should not be disregarded.
Notwithstanding the absence of international obligations stemming from a declaration, the potential impact of non-binding instruments should not be dismissed altogether. Other well-known examples of non-binding instruments (e.g., the Helsinki Act, the Universal Declaration on Human Rights) have developed a significant normative impact. In this way, the ASEAN Human Rights Declaration, first, transforms human eights from a solely domestic concern into an issue to be addressed in interstate relations; second, may form the basis for a treaty in the future; third, can be referenced and used before/by national bodies and in international practice; and fourth, legitimises human rights language for political debate at the domestic level.
III. Other ASEAN Human Rights Bodies and InstrumentsEdit
A few other developments in the ASEAN should be noted. The ASEAN Commission on the Promotion and Protection of the Rights of Women and Children, formally established in 2010, is a consultative, intergovernmental human rights body. It is tasked with promoting and protecting the human rights of women and children upholding rights contained in the Convention on the Elimination of Violence Against Women and the Convention on the Rights of the Child (all ASEAN member states have ratified both treaties). Its functions are very similar to those of the AICHR mentioned earlier.
Finally, the ASEAN Committee in the Implementation of the Declaration on the Protection and Promotion of the Rights of Migrant Workers created in 2017, is mandated to ensure the implementation of commitments made under the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. In 2017, following ten years of consultation and negotiation, ASEAN states adopted the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers. The treaty sets out standards for the treatment of migrant workers in source and destination countries.
- Y Wahyuningrum, 'A Decade of Institutionalizing Human Rights in ASEAN: Progress and Challenges' (2021) 21 Journal of Human Rights 158
- A Anghie, 'Identifying Regions in the History of International Law' in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) 1058
Summary of main pointsEdit
- Asia is the only region which lacks a regional, coherent system for the protection of human rights. This is due to a variety of reasons, including Asia’s diversity, influences of the great powers and the experience(s) of colonialism. Human rights law in Asia is likely to grow on the domestic level, through national human rights institutions, and sub-regionally.
- The Bangkok Declaration and the ASEAN Human Rights Declaration bring to the fore major claims contesting the Western conceptualisation of civil and political freedoms: communitarian values, the role of duties of the individual towards society vis-à-vis individual freedoms and deference to national and regional particularities. The precise normative scope and content of these claims remain unclear and, in certain instances, are conducive to abuse.
- The standing human rights bodies are set up only on a sub-regional basis and they have a consultative, intergovernmental function.
- ↑ The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
- ↑ S Chesterman, 'Asia's Ambivalence about International Law and Institutions: Past, Present and Futures' (2016) 27 European Journal of International Law 945.
- ↑ A Durbach, C Renshaw and A Byrnes, 'A Tongue but No Teeth: The Emergence of a Regional Human Rights Mechanism in the Asian Pacific Region' (2009) 31 Sydney Law Review 211, 221.
- ↑ UNGA Res 48/121, UN Doc A/RES/48/121, 14 February 1994.
- ↑ Article 1(5).
- ↑ Article 1(5).
- ↑ Article 2(3).
- ↑ Human rights treaties adopted under the auspices of this association are: the 2004 Social Charter, the 2002 Convention on Regional Arrangements for the Promotion of the Child Welfare in South Asia and the 2002 Convention on Preventing and Combating Trafficking in Women and Children for Prostitution.
- ↑ The Association was established in 1967. It consists of Brunei Darussalam, Cambodia, Indonesia, Law PDR, Manaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.
- ↑ Member States were divided into three camps as to the establishment of a human rights body: Indonesia and Thailand were favourable; Cambodia, Laos, Myanmar and Vietnam were opposed; and Brunei, Malaysia, the Philippines and Singapore kept a moderate position.
- ↑ Y Wahyuningrum, 'A Decade of Institutionalizing Human Rights in ASEAN: Progress and Challenges' (2021) 20 Journal of Human Rights 158.
- ↑ See Article 2(5), Terms of Reference.
- ↑ AJ Langlois, 'Human Rights in Southeast Asia: ASEAN's Rights Regime After Its First Decade' (2021) 20 Journal of Human Rights 151.