Your Excellency,

I am writing to you in your capacity as a member of the ASEAN High Level Panel, to outline Amnesty International’s comments and suggestions regarding the first draft of the Terms of Reference for the ASEAN Human Rights Body, the establishment of which is provided for under Article 14 of the ASEAN Charter.

We wrote to you previously, on 30 October 2008, to express our preliminary views on the Terms of Reference, as the High Level Panel was beginning the drafting process.[1] The 13 February 2009 Draft Terms of Reference, made available to us by regional human rights NGOs, presents an opportunity to provide more specific comments and recommendations, which we hope you will take into account in your deliberations.

Our submission consists of general comments, whilst referring to specific provisions within the Draft, and recommendations for additions and amendments. The submission should be understood as addressing our most serious concerns rather than as exhaustive of such concerns.

Amnesty International hopes that these comments will be of use to the High Level Panel in developing the Terms of Reference. The organization is looking forward to further dialogue with the High Level Panel.

 

Yours sincerely,

 

Sam Zarifi

Asia-Pacific Director

 

Amnesty International’s concerns and recommendations on the first

draft of the terms of reference for the ASEAN human rights body

 

1. legal basis

The ASEAN Human Rights Body will stand in a unique position vis-à-vis other regional human rights monitoring bodies in that it will not, at least initially, be tasked with applying a regional human rights  treaty. It is therefore essential, for the ASEAN Human Rights Body to become an effective protection and promotion mechanism, that the legal basis for its work is set out clearly.

In this context, Amnesty International welcomes the  reference in the Draft Terms of Reference (henceforth: the Draft) to the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action and international human rights instruments to which ASEAN Member States are parties (Draft, Article 1.4/1.6). Nevertheless, the organization has concerns about the limited capability provided by the Draft for the ASEAN Human Rights Body to ensure that these standards are implemented, a concern which is deepened by the poor ratification record of some of the ASEAN states, and their even poorer record of respect for human rights law and standards.

Amnesty International recommends:

·         Include reference to a wider array of international human rights instruments, in particular the two international Covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights);

·         Strengthen the language of Article 1.4/1.6 of the Draft so as to provide that the ASEAN Human Rights Body is tasked with applying international standards in its own work, as well as with ensuring that member states similarly apply these standards, rather than merely “upholding” them.

 

2.   Indications of standards lower than the universal ones

The Draft includes a commitment to “uphold international human rights standards,” (Article 1.4/1.6), but other provisions seem to indicate a more reserved view of these standards. Such apparent reservations include: “bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds” (Article 1.5/1.4); “taking into account the balance between rights and responsibilities” (ibid.); “respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States”; “non-interference in the internal affairs of ASEAN member states” and “respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion” (all in Article 2.1). Some of these provisions are in and of themselves well-recognized principles of international law, but Amnesty International is concerned that they are invoked in this particular context to introduce limitations on the reach of human rights in general and of the ASEAN Human Rights Body in particular.

Amnesty International would therefore, firstly, remind the High Level Panel of the well-established rule of general international law, as reflected in Article 26 of the Vienna Convention on the Law of Treaties, that “A party [to an international treaty] may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” This principle clearly applies to ASEAN member states’ human rights obligations, under both the ASEAN Charter and other treaties.

Secondly, as for “cultural and religious background,” explicit provisions for cultural rights and religious freedom exist in international human rights treaties, for instance in Article 15 of the International Covenant on Economic, Social and Cultural Rights and Article 18 of the International Covenant on Civil and Political Rights, respectively. However, this must not be confused with a sanction to restrict or violate human rights in the name of culture or religion. In fact, the opposite is true. For instance, Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women, to which all ASEAN member states are states parties, provides the following:

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

This principle clearly applies to social and cultural patterns of conduct which have a restrictive effect on any other human rights obligations of states.

Thirdly and finally, international human rights law recognizes, like the Draft, that “the primary responsibility to promote and protect human rights and fundamental freedoms rests with each Member State” (Article 2.3). This statement corresponds with the principle of complementarity which to a large extent governs the systems monitoring states’ implementation of their human rights obligations. In simple terms, it means that as long as a state respects, protects and fulfils human rights within its territory or under its jurisdiction, there is little reason for active outside involvement, be it by UN human rights monitoring bodies or by regional bodies such as the ASEAN Human Rights Body. By the same token, however, where a state fails to comply with its human rights obligations, including by failing to provide proper redress for human rights violations, such involvement is warranted, and a state may not invoke its own laws, sovereignty, peculiarities, territorial integrity, culture, religion, national identity or the way it balances rights with responsibilities to ward it off.

Amnesty International recommends:

·         Ensure that the Draft reflects the international principles prohibiting the invocation of domestic laws or practices to justify human rights violations or prevent involvement by the ASEAN Human Rights Body to redress them;

·         Explicitly grant the ASEAN Human Rights Body the authority to oversee the implementation of member states’ human rights obligations under the ASEAN Charter;

·         Explicitly provide that while some procedures within the ASEAN Human Rights Body may be subject of the principle of complementarity, a member state would not be able to invoke its national laws, policies or practices to prevent the ASEAN Human Rights Body from addressing human rights issues within its territory.

 

3. lack of clear requirements for Members’ expertise and independence

The Draft envisages the ASEAN Human Rights Body as an “inter-governmental body” (Article 3), and lacks an explicit requirement that its members have any expertise or experience in the promotion, protection or even academic research of human rights. There is also a similar absence of requirements of personal integrity or independence for ASEAN Human Rights Body members. Instead, the Draft requires only that member states give these issues “due consideration,” (Article 5.2). This is in stark contrast with all international human rights monitoring bodies. For instance, Article 28.2 of the International Covenant on Civil and Political Rights provides that members of the Human Rights Committee, established under the Covenant to oversee its implementation, “shall be persons of high moral character and recognized competence in the field of human rights” and while being nationals of states parties to the Covenant and initially nominated by states parties (Article 29 of the Covenant), “shall be elected and shall serve in their personal capacity” (Article 28.3 of the Covenant). Similar requirements are made in regional treaties, for instance in Article 34 of the American Convention on Human Rights (concerning members of the Inter-American Commission on Human Rights); in Article 39 of the European Convention on Human Rights and Fundamental Freedoms (concerning candidates for the European Court on Human Rights); and in Article 31 of the African [Banjul] Charter on Human and Peoples’ Rights (concerning members of the African Commission on Human and Peoples’ Rights). The requirement for members of the ASEAN Human Rights Body to serve in their personal capacity, that is, serve to promote and protect human rights rather than the interests of their respective governments, is absent from the Draft altogether.

Amnesty International is deeply concerned that without explicit requirements that ASEAN Human Rights Body members possess moral integrity and human rights expertise, and with no requirement whatsoever for their independence, the ASEAN Human Rights Body may be unduly vulnerable to political considerations, to the great detriment of its ability to protect and promote human rights.

Amnesty International recommends:

·         Amend the Draft so as to bring it in line with other international human rights monitoring bodies and include an explicit requirement that each member of the ASEAN Human Rights Body shall:

 

1.       Be a person of high moral character;

 

2.       Have recognized competence in the field of human rights; and

 

3.       Serve in their personal capacity.

 

·         Include in the Draft a selection and election system to ensure that the above requirements are met. Such a system must include meaningful consultation with civil society.

 

4. lack of provisions for ample capacity to address human rights situations

The Draft omits some of the powers or facilities without which the ASEAN Human Rights Body is unlikely to be able to perform its tasks properly. This may result in both bureaucratic delays and politically-motivated obstructions by states unwilling to cooperate fully with the ASEAN Human Rights Body.

Considering that ASEAN has a population of several hundreds of millions of people, a huge geographic span and a membership including states with a record of grave and persistent human rights violations, a body comprised of ten members would find it difficult to “promote and protect” (Article 1.1) human rights in the region effectively without extensive assistance and expertise. This is of particular concern in view of the absence of a clear requirement for members to have human rights expertise, as described in the previous point.

The Draft contains no provisions granting the ASEAN Human Rights Body powers to appoint experts and other mechanisms to provide it with human rights expertise, either generally or regarding specific themes or situations. The provision in the Draft for the ASEAN Human Rights Body to “consult, coordinate and collaborate with relevant ASEAN bodies” (Article 6.7) and their envisaged eventual alignment, while helpful, are insufficient, as the ASEAN Human Rights Body is not clearly granted powers to task any of these bodies with carrying out aspects of its work, let alone appoint additional bodies.

Amnesty International recommends:

·         Amend the Draft so as to grant the ASEAN Human Rights Body the authority to appoint experts, working groups and similar mechanisms and task them with carrying out specialized work;

 

·         Ensure that the Draft provides for such mechanisms to be comprised of persons of high moral character with recognized competence in the field and serving in their personal capacity;

 

·         Ensure that the Draft provides for adequate resources to facilitate the work of such mechanisms;

 

·         Create the procedural infrastructure for an integrated system of human rights mechanisms headed by the ASEAN Human Rights Body, into which both current and future human rights mechanisms may be incorporated.

 

 

5. limited provisions for human rights protection

The Draft does not clarify the ASEAN Human Rights Body’s role and powers in carrying out its stated purposes to “protect human rights and fundamental freedoms” (Article 1.1).

This is in contrast to regional and international human rights bodies, whose protection mandates are set out in detail. For instance, UN human rights treaty-based bodies receive periodic reports from states parties, consider these reports, having also received submissions from national, regional and human rights NGOs, and publish concluding observations and recommendations for better compliance with the relevant treaty. These bodies are also mandated, either through provisions in the relevant treaty or through optional protocols, to receive individual complaints, and in some cases also complaints by one state party against another.

The core regional human rights mechanisms have even greater powers, granted by the relevant treaties; they include courts whose rulings are binding on states parties, the implementation of which is supervised by high-ranking executive bodies such as the Executive Council in the African Union and the Council of Ministers in the Council of Europe. The latter Council has also established, among other protection mechanisms, a Committee for the Prevention of Torture, a body of independent experts which has unlimited access to places of detention throughout member states.

Whilst Amnesty International appreciates that ASEAN is at an early stage in developing regional human rights protection mechanisms, we urge the High Level Panel to ensure that the ASEAN Human Rights Body has a robust and clearly defined protection mandate.

Amnesty International recommends:

·         Add to the Draft provisions detailing the ASEAN Human Rights Body’s protection mandate, including:

1.       For member states to provide the ASEAN Human Rights Body with initial, then periodic reviews of their human rights record, to be studied by the ASEAN Human Rights Body, in conjunction with reports from civil society and other sources. After conducting dialogues with the government and civil society organisations, the ASEAN Human Rights Body would be mandated to publish its conclusions and recommendations and follow up on their implementation;

2.       For the ASEAN Human Rights Body to carry out and publish studies on regional human rights issues such as human trafficking, migrants and refugees;

3.       For the ASEAN Human Rights Body to investigate human rights issues within member states, including through country visits, and for states to facilitate such investigations;

4.       For the ASEAN Human Rights Body to be able to receive individual complaints on human rights violations, investigate them and cooperate with the member state concerned to resolve and redress them. The Draft should provide for a fast-track mechanism to deal with urgent complaints;

5.       For the ASEAN Human Rights Body to develop “early warning” mechanisms so that ASEAN can step in early to avoid a situation deteriorating into widespread or systematic human rights violations;

6.       For the ASEAN Human Rights Body to refer situations where it considers that  widespread or systematic human rights violations have occurred to the ASEAN Summit as a serious breach of the ASEAN Charter in accordance with Article 27.2 thereof.

 

 

6. Decision-making process which may lead to inaction

While Amnesty International appreciates the value of decision-making “based on consultation and consensus” (Article 6.1), the Draft does not provide for a mechanism that will allow the ASEAN Human Rights Body to take decisions where such a consensus cannot be reached.

The ASEAN Human Rights Body will discuss human rights violations in ASEAN states; such a discussion cannot be meaningful if it does not involve criticism of member states’ laws, policies and practices pertaining to human rights. Any insistence on consensus at all costs would grant member states an effective veto on any comments on their own record or recommendations for change in their own states with which they do not fully concur, resulting either in paralysis or in outcomes reflecting the lowest common denominator. This will in turn result in failure to address human rights violations in accordance with international human rights law and standards.

Resort to the procedure which the ASEAN Charter generally provides, namely referral to the ASEAN Summit (in Article 20.2), is both impracticable and at any rate may suffer from the same weaknesses.   Article 20.2 states: “where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.”

Amnesty International recommends:

·         Amend the provision in Article 6.1 of the Draft to allow for decisions by majority in the ASEAN Human Rights Body whenever consensus cannot be reached;

·         Ground the revised provision in Article 20.3 of the ASEAN Charter, in view of the Terms Of Reference being an ASEAN legal document.

 

7. Evolutionary approach to developing human rights norms

Amnesty International recognizes the need to carefully and thoughtfully plan the road ahead, in particular considering the serious human rights situation in several member states, and their highly restrictive view of their human rights obligations. To this extent, the organization welcomes the Draft’s adoption of an “evolutionary approach… to the development of human rights norms and standards in ASEAN” (Article 2.6.).

It must be emphasised, however, that whilst the development of human rights standards within ASEAN may be gradual, no individual in an ASEAN member state should be made to wait for such a development in order to enjoy his or her human rights, as enshrined and provided for in international human rights law and standards.

Similarly, no human rights treaties, declarations or any other standards may be developed within ASEAN which fall short of international human rights law and standards.

Amnesty International recommends:

·         Amend the Draft so as to explicitly provide for member states’ existing duty to ensure, without delay, the enjoyment by all individuals within ASEAN of their human rights in accordance with international law and standards, irrespective of the pace at which regional standards are developed;

 

·         Ensure that the Draft set out a plan, commensurate with benchmarks, for future development of ASEAN human rights standards, to be overseen by the ASEAN Human Rights Body. Once the ASEAN Human Rights Body has established that these benchmarks are met, the gradual expansion of ASEAN’s own human rights system may be undertaken;

 

·         Benchmarks should include:

 

1.     Ratification by all member states of the core international human rights treaties, at the very least the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;

 

2.    The incorporation by all member states of these treaties’ provisions into national law, and legal, administrative and practical steps taken to ensure their implementation;

 

3.     The establishment of national human rights institutions, in accordance with the Paris Principles, in all member states;

 

·         Ensure that all future human rights standards developed within ASEAN are in full compliance with international human rights law and standards.