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.