By Seree Nonthasoot
In 2007, the 10 members of the Association of the Southeast Asian Nations celebrated the adoption of the Asean Charter that for the first time in the region's history includes human rights as one of its principles and objectives.
The charter seeks to implement a human rights agenda through a human rights body that was finally set up in 2009 with the title Asean Intergovernmental Commission on Human Rights (AICHR). The AICHR, according to its terms of reference (TOR), has a principal document that sets out its details and governs its work, and has a key purpose to "promote and protect human rights and fundamental freedoms of the peoples of Asean".
As the overarching human rights body, the AICHR is also tasked with coordinating and aligning human rights programmes among various bodies of the community to promote coherence and synergy. With a view to further enhancing human rights promotion and protection in Asean, the TOR puts in place a requirement that a review of its provisions shall be conducted every five years.
Despite the mandatory language, that obligation was not executed in 2014 when, after the AICHR submitted its own assessment of the TOR, the Asean foreign ministers were silent on the issue, implying the absence of a consensus. Such reticence has been cited as a ground to suppress further discussion for the review, or that the ministers decided not to commence the review process.
According to review dissenters, Asean is not ready to revise its human rights framework. Under a three year term rotation, the AICHR is now being served by the third batch of representatives and entering its seventh year of operations. A fundamental question that must be asked is: what has Asean delivered on its human rights agenda after a seemingly rosy start in 2009? A body that focuses on human rights promotion but lacks protection mechanisms and responsiveness to a growing number of regional human rights issues? A framework that is prone to deal only with issues that never touch on national situations for it will be considered an interference in domestic affairs? A body that risks losing relevance to the Asean people since it has not offered tangible solutions to their plight?
Maybe all those. I am of the view that the review of the AICHR's TOR should take place as envisaged and in light of new developments in the region. It is becoming imperative. At least four reasons can be identified.
1. Mandate for Review
It is worth recalling that the TOR specifies its own review every five years, the first of which was scheduled to take place in 2014. In 2013 and early 2014, the AICHR conducted consultations in Jakarta and Bangkok with various stakeholders that substantively contributed to the assessment of its work, and there was a clear indication that a review of the TOR should be undertaken to address the clear imbalance between promotion and protection of human rights.
However, there were two schools of thought among the foreign ministers. Some were of the view that the current TOR should continue to be used and used "innovatively" and "creatively" while others were clearly in favour of the review. With due respect, there should indeed be no argument at all since the TOR is explicit in its language and intent that it must be periodically reviewed. To argue otherwise is tantamount to a denial of such a mandate that is self-imposed by the ministers.
More importantly, the review undertaking is also recognised by the Asean leaders at the inauguration of the AICHR in 2009 in Cha-Am. Thus, a review should be expeditiously initiated. On the other hand, any delayed action on or tacit rejection of the review process should be made cogent and transparent since it contrasts with the plain text of the TOR.
2. New Asean Vision 2025
It is clear that the present TOR that has been applied for more than six years is in need of a substantial update. The task to develop the Asean Human Rights Declaration that is among the list of 14 mandates was already completed while other practical issues have emerged such as the potential disruption owing to the possible exit of all 10 representatives at the end of the term. (The third term sees the appointment of eight new members).
Such an update is made more urgent by the announcement of the new Asean Vision 2025: Forging Ahead Together by the Asean leaders at the commencement of the Asean Community at the end of 2015. The new Vision gives greater emphasis and detail on human rights promotion and protection.
One of the key statements is for the AICHR to mainstream human rights across the three pillars of Asean. To contribute to the realisation of the Vision and make Asean a people-oriented, people-centred Community, it is necessary that the mandate and structure of the AICHR be reviewed and strengthened. The aspiration to be a rule-based Community will also be defeated if we ignore our own written undertaking.
3. Progress & Challenges
Human rights are dynamic and evolving and the Asean region presents an interesting menu of human rights progress and challenges.
The adoption of the Asean Human Rights Declaration in 2012 and the Asean Convention against Trafficking in Persons, especially Women and Children in 2015 is an indication of advances that the region has achieved.
In terms of standards, already all 10 member states have ratified three human rights conventions on women, children and, most recently, persons with disabilities.
Asean should collectively amplify this progress to further enhance implementation of the three conventions and encourage ratification of more human rights instruments such as those pertaining to torture and enforced disappearance.
However, challenges, especially those that are trans-boundary and transcend the capacity of individual member states, have increased rapidly alongside and, arguably, as a result of the regional integration.
As the regional challenges grow, the AICHR in its present shape and form is powerless to lend an effective and protective hand on these pressing matters and without a dedicated and fully functional mechanism that systematically instills and integrates human rights and the rights-based approaches, the Asean people will be left in the hands of different silos and compartments of Asean pillars that lack coordination and may not take human rights seriously.
4. Position & Standing
The AICHR has brought to Asean international recognition of its historic milestone on human rights. Within a relatively short period of time, we were able to institutionalise human rights in our region. That position will be jeopardised if Asean is complacent and does not fulfill its own pledge to improve the regional human rights infrastructure.
In 2014, I organised for the AICHR the first dialogue on regional human rights mechanisms and we learned from different regions the various models and institutions that they have created to protect human rights, including human rights courts and independent fact-finding bodies. While it is often argued that Asean operates in a different context and the elements that work well in other regions may not be as effective here, the trajectory for Asean is unmistakable: we have made an unequivocal statement to enhance the promotion and protection of the rights of our peoples and we must direct our mutual efforts on that spirit. Never forget that Asean and its members have invariably affirmed the universality and inalienability of human rights.
As Asean will celebrate its 50th anniversary in 2017, a critical test of the leaders' commitment to create a genuinely rule-based and people-oriented, people-centred Community will be whether they render truly effective the Asean human rights body.
Seree Nonthasoot is Thailand's representative to the AICHR, serving his second term. This article expresses his personal views.
This article was first published on Bangkok Post