Solving ASEAN human rights issues

Solving ASEAN human rights issues

By Dino Patti Djalal

This is the second of two articles adapted from a paper
presented on Intra-ASEAN Human Rights Policies and Mechanisms at
the sixth ASEAN-ISIS (Association of Southeast Asian Nations-
Institute of Strategic and International Studies) Colloquium on
Human Rights in Manila on Feb. 14, 1999.

JAKARTA (JP): The Association of Southeast Asian Nations
(ASEAN) now consists of nine members, and will soon be 10. When
the ASEAN 10 is completed, there will be a need, in the short
run, to formulate a common platform which either reaffirms or
expands the human rights stand of the AMM 1993.

By that time, perhaps it would be prudent to have it engraved
in a separate ASEAN document (rather than having it inserted in
the joint communique); one could call it a declaration, charter,
convention, common position, joint statement or something else.

Whatever one calls it, the ability of all ASEAN members, which
represent different political systems and historical background,
to produce a common platform would make it easier for the
association to move forward on a "regional mechanism on human
rights".

This, of course, does not mean ASEAN is reinterpreting or
competing with the Universal Declaration on Human Rights. In
other parts of the world, various regional human rights
instruments have been promulgated: i.e. the American Declaration
on the Rights and Duties of Man (adopted by Organization of
American States (OAS) in 1948), the American Convention on Human
Rights (entered into force in 1978 for OAS members), the European
Convention on Human Rights and Fundamental Freedoms (entered into
force in 1953), the European Social Charter (entered into force
in 1965) and the African Charter on Human and People's Rights
(adopted by OAU in 1981 but not yet entered into force). Given
these precedents, there is no reason why ASEAN should not have an
ASEAN declaration on human rights.

Intra-ASEAN human rights policy and mechanism must be pursued
within the context of the principle of noninterference, which is
enshrined in the Bangkok Declaration of 1967, the Declaration on
the Zone of Peace, Freedom and Neutrality (ZOPFAN) concept, the
Treaty of Amity and Cooperation to which all ASEAN members are
bound and reaffirmed in virtually all ASEAN major documents.

There are those who would label this a conservative approach,
pointing out that the universality of human rights transcends
national boundaries and thus requires "intrusive" enforcement
measures across borders. Still, noninterference remains a
cardinal principle for ASEAN regionalism, one which, according to
ASEAN Vision 2020, constitutes "a binding code of conduct for our
governments and peoples, to which other states with interest in
the region adhere".

The upshot is that the ASEAN "regional mechanism on human
rights" should not be used to corner, isolate, pressure or
intrude into the affairs of an ASEAN member state. Once this
fault line is crossed, we will see the unraveling of a regional
order in ways which radically differ from what ASEAN has known in
the last three decades.

Ultimately, reality dictates that ASEAN governments are not
likely to accept scenarios which would allow the "regional
commission" to get involved in domestic disputes between an ASEAN
government and its citizens or sociopolitical groups. Some ASEAN
governments would also argue their systems are properly equipped
with independent and competent judiciaries and there is no reason
why human rights cases should not be settled within the domains
of their respective national laws.

Moreover, many of the human rights cases in the ASEAN region
are related to or symptomatic of domestic power politics, and the
ASEAN regional mechanism must be vigilant to avoid the appearance
of taking sides, of being a party in the internal politics or of
intruding or interfering. Once that happens, the Pandora's box
is wide open.

Henceforth, an intra-ASEAN human rights mechanism should
proceed at a pace comfortable to all, meaning it must be pursued
on a step-by-step basis.

We are still a long way from the establishment of an ASEAN
Human Rights Court in the fashion of, for example, the Inter-
American Court on Human Rights or the European Court of Human
Rights.

Unlike the task of economic cooperation, ASEAN human rights
policies should not proceed in two-speed or multispeed tracks,
but at a pace which all ASEAN members can be reasonably
comfortable with. Unless there is a common political will among
all ASEAN members to move forward together on a common platform
on human rights, intra-ASEAN human rights mechanism would not go
very far.

The informal Working Group on ASEAN Mechanism for Human Rights
has raised the possibility of establishing a "regional commission
on human rights" and has communicated the idea to senior ASEAN
officials on the margins of AMM 1998.

Prospects for this "regional commission" (rather than a
regional court) are good, but for the benefit of the ASEAN
governments who will decide upon it, the mandate, objectives and
program of such a commission must be made clear.

It is unlikely that ASEAN governments will accept arrangements
similar to, say, the Inter-American Commission on Human Rights,
which places emphasis on civil-political rights, which allows for
individuals in state countries to submit petitions to the
Regional Commission, permits investigation into human rights
violations in its member-states, and allows majority voting in
its decision-making.

The predominant instinct of ASEAN governments is that they
would rather do away with schemes which would pit one ASEAN
states against another, schemes which open the possibility of
intruding into the domestic affairs of a member state and venture
into politically sensitive areas, and schemes which run into
collision course with the Treaty of Amity and Cooperation and
which could damage the "ASEAN spirit".

There are ways for ASEAN to pursue human rights cooperation
without creating tension with the principle of noninterference.
The greatest prospect for intra-ASEAN human rights mechanism lies
in the field of promotional activities.

These may entail joint efforts to raise region-wide awareness
and understanding on human rights, the pooling of resources to do
so, joint training of law-enforcement officials, regional
seminars to disseminate international human rights instruments
and conventions, experience-sharing among national commissions on
human rights and exchange of information on national human rights
programs. And the list goes on.

Promotional activities inevitably lead to cooperation rather
than confrontation. The essence of these promotional activities
is neither to pontificate nor to exchange accusations, but to
increase awareness, appreciation and capacity of all ASEAN
governments and peoples to respect human rights in their
respective national life.

The emphasis on promotion is well reflected in the recommended
mechanisms and actions contained in the Synopsis of a Policy
Initiative for the Establishment of an ASEAN Human Rights
Mechanism, which was produced by the informal Working Group for
an ASEAN Human Rights Mechanism and submitted for discussion with
senior ASEAN officials.

In the end, what is important is to pursue human rights
cooperation which is practicable, acceptable, realistic and
results-oriented. After all, in the ASEAN scheme of things, it is
the undramatic methods which often lead to dramatic impacts.

The writer works at the Ministry of Foreign Affairs and is a
member of the Executive Board of the Indonesian Council on World
Affairs (ICWA). The views expressed in this article are strictly
personal.