In 2007, Member States of the Association of Southeast Asian Nations (ASEAN) adopted the ASEAN Charter. Article 14 of the Charter provided that ASEAN shall establish a “human rights body”.
In July 2009, the ASEAN Foreign Minister Meeting adopted the Terms of Reference (TOR) of the ASEAN Intergovernmental Commission on Human Rights (AICHR). During the 15th ASEAN Summit in Thailand, in October 2009, ten AICHR Representatives were appointed, one from each Member State. The AICHR was then formally inaugurated.
The AICHR is the body that has an overall responsibility for the promotion and protection of human rights in the ASEAN. As the overarching human rights body in the region, it is required to coordinate and cooperate closely with all other ASEAN sectoral bodies that deal with human rights. It is characterized as a “consultative inter-governmental body”.
Membership of the AICHR and appointment, qualifications, and term of office of Representatives
Each ASEAN Member State shall appoint its Representative to the AICHR. This Representative shall be accountable to the government that appointed him/her.
Each Representative is allowed to hold the position for a maximum of two consecutive terms; each term is three years long. Representatives however do not enjoy security of tenure. The representative can be removed or replaced at any time by the government that appointed him/her.
In terms of qualifications, governments are to take into account gender equality, integrity and competency of the candidates in the field of human rights.
No specific process is recommended for consultation with relevant stakeholders in the appointment of Representatives. The TOR merely provides that Member States should consult with relevant stakeholders, if required by their respective internal processes.
Mandate and Functions
Under AICHR’s TOR, the commission has a total of 14 mandate and functions; most of which focuses heavily on the promotion of human rights.
Below is the list of AICHR’s mandate and functions:
4.1. To develop strategies for the promotion and protection of human rights and fundamental freedoms to complement the building of the ASEAN Community;
4.2. 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;
4.3. To enhance public awareness of human rights among the peoples of ASEAN through education, research and dissemination of information;
4.4. To promote capacity building for the effective implementation of international human rights treaty obligations undertaken by ASEAN Member States;
4.5. To encourage ASEAN Member States to consider acceding to and ratifying international human rights instruments;
4.6. To promote the full implementation of ASEAN instruments related to human rights;
4.7. To provide advisory services and technical assistance on human rights matters to ASEAN sectoral bodies upon request;
4.8. To engage in dialogue and consultation with other ASEAN bodies and entities associated with ASEAN, including civil society organisations and other stakeholders, as provided for in Chapter V of the ASEAN Charter;
4.9. To consult, as may be appropriate, with other national, regional and international institutions and entities concerned with the promotion and protection of human rights;
4.10. To obtain information from ASEAN Member States on the promotion and protection of human rights;
4.11. To develop common approaches and positions on human rights matters of interest to ASEAN;
4.12. To prepare studies on thematic issues of human rights in ASEAN;
4.13. To submit an annual report on its activities, or other reports if deemed necessary, to the ASEAN Foreign Ministers Meeting; and
4.14. To perform any other tasks as may be assigned to it by the ASEAN Foreign Ministers Meeting.
AICHR’s work is further guided by a work plan that contains programmes and activities for a term of five years. For example, the 2016-2020 work plan was recently adopted on 15 June 2015. This will replace the current work plan of 2010-2015 when it ends in December this year. The ICJ notes that very minimal consultation has been done with civil society in the formulation of these work plans.
There are two key issues that appear prominently in the 2016-2020 work plan. The first is the drafting of a policy on the protection of women and girls against violence. In October 2013, the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) had already adopted a Declaration on the Elimination of Violence against Women and Elimination of Violence Against Children in ASEAN and they have been working closely with civil society organizations in the region on implementing this document. Although it is uncertain if AICHR had previously consulted ACWC on this initiative, but the drafting of another policy to protect women and girls could very likely overlap and duplicate the work of ACWC.
The second issue noted in the 2016-2020 work plan that could be problematic is the drafting of additional ASEAN Conventions and other instruments, such as protocols and guidelines, on human rights. During the drafting of the ASEAN Human Rights Declaration it was noted that the process was largely conducted behind closed doors, text was never publicized, and where consultations with civil society groups were held, they were either too late or considered ineffective. The ICJ, including 62 other grassroots, national, regional and international civil society groups have now rejected this Declaration due to the flawed process and for the fact that its contents fall below international human rights standards. A repeat of this experience would only contribute to the regression of human rights in the region.
Principles and Modalities of AICHR’s work
According to AICHR’s TOR, the AICHR shall be guided by, amongst others, the principle of non-interference in the internal affairs of ASEAN Member States, and the “consultation and consensus” rule during decision-making.
The principle of non-interference has been interpreted by some representatives of the ASEAN Member States as the prohibition of Member States from commenting on the domestic affairs of other Member States. Although ASEAN Member States have in the past used this principle inconsistently, it has often been used as a political shield to avoid accountability for human rights violations and failure to fulfill human rights obligations. In rejecting this principle, the ICJ has instead advocated that protection and overall realization of human rights is not exclusively a matter of internal affairs of States, but one that should include the international community. In fact, ASEAN Member States have previously diverged from this principle and commented on the internal affairs of Member States, and they do regularly subject their human rights performance to scrutiny by other States through international mechanisms and procedures such as the Universal Periodic Review and of those established under international instruments they have either acceded or ratified. For these reasons, the ICJ recommended that paragraph 2.1(b) of AICHR’s TOR be deleted if the provision is maintained, the TOR should make clear that the non-interference principle cannot be interpreted to mean that AICHR may not engage in work relating to human rights situations of Member States.
As for the “consensus” rule used in decision-making, this rule is interpreted to mean that there is an agreement by all Representatives. However, as such a modality also meant that no decision is taken when it comes to human rights matters, the ICJ had previously recommended that AICHR’s TOR include a provision that allows its Representatives to reach a decision based on majority votes, after all reasonable efforts have been exhausted to achieve consensus.
AICHR’s Relations with civil society
On 11 February 2015, the AICHR adopted the Guidelines on the AICHR’s Relations with Civil Society Organizations (Guidelines). Civil society organizations and institutions can now apply to have formal consultative relations with the AICHR. The purpose of this document is to “establish an enabling environment for meaningful and constructive engagement and interaction between AICHR and civil society organizations”.
Similar with other ASEAN documents, limited consultations were conducted with civil society organizations during its drafting process. Organizations that had submitted recommendations on the draft were able to see whether their suggestions were adopted or rejected only after the document was adopted by the AICHR.
Having examined the Guidelines, it is worrying that the document appears to have been designed to monitor the work of civil society organizations, rather than to encourage genuine engagement. For example, under paragraph 8(f) of the Guidelines, for purposes of assessment, the AICHR requires an organization to submit a list of their members and their nationalities.
Apart from this, there are also other restrictive requirements that an organization will need to comply in order to be eligible to apply for accreditation. Under paragraph 8(d) of the Guidelines, the organization needs to “have been in existence for at least two years with a legally established entity in one of the ASEAN Member States. This requirement will prevent many civil society organizations in countries with restrictive registration regulations from applying. Further, organizations that had rejected the ASEAN Human Rights Declaration could possibly see their application rejected under paragraph 8(a) of the Guidelines, which requires organizations to “abide by and respect the principles and purposes of the ASEAN Charter, ASEAN Human Rights Declaration and the Phnom Penh Statement…”
Although the AICHR is still in its nascent stage, the body’s current TOR is problematic and prevents the AICHR from being an effective regional human rights mechanism. If the ASEAN Members States are serious in redressing violations of basic human rights and respecting human dignity, as mentioned in their 1993 Joint Communique, concrete steps must be taken to review and strengthen AICHR’s TOR to ensure that AICHR can effectively respond and address key pressing human rights issues in the region.