Slavery, sweatshops, forced marriage and famine. Cultures drowning under rising seas, genocide perpetrators walking free, polluted air, polluted water and polluted food: you’d be hard-pressed to find a region with a more appalling record of ongoing human rights abuses than the Asia-Pacific.[1] The region is home to nearly 10 million people in forced labour; 132 million living in hunger;[2] ongoing campaigns of mass murder against the Rohingya and the West Papuans and the world’s most horrendous rates of domestic violence. From Singapore’s tolerance of slavery among domestic carers to Australia’s sadistic youth justice system, no nation can claim innocence. In a 2019 book, legal scholars Alison Duxbury and Hsien-Li Tan delicately labelled Southeast Asia’s human rights record as ‘tumultuous’;[3] better-fitting would be Amnesty International’s word of choice: bleak.
Whose job is it to prevent this? Countries – too often themselves the perpetrators and deniers of abuses – cannot be trusted to regulate human rights in their respective jurisdictions. At a global level, the UN has power to enforce, but competing interests often frustrate any meaningful action. While UN Security Council maintains power to act to protect human rights, resolutions aimed at this end often fail to precipitate or pass owing to geopolitical rivalries. Thus, it often fails to take any action, even against the most blatant abuses of human rights, for example those ongoing in Myanmar.
There is however a third level of government, one between the national and global that is host to institutions with far more potential to protect human rights: the regional level. The Council of Europe, the African Union and the Organisation of American States have long maintained legally-binding human rights charters and have used associated human rights courts to enforce them. Through the economic benefits regional organisations offer for their member states (free trade, bureaucratic streamlining, ease of movement, etc.), they gain leverage over their members and can impose conditions on them. So, when a state joins a regional organisation, it doesn’t just sign on to a lucrative deal: it must also promise to obey its laws, including those that deal with human rights.
For an example of their power, take the 2012 case of Khaled El-Masri in Europe. Khaled, a German national holidaying in Macedonia, was detained by local authorities for three weeks on wrongful suspicions of terrorism. He was then handed over to the CIA, whose agents stripped, shackled, beat and sexually assaulted him before transferring him to a secret prison in Afghanistan. After his release following three years of imprisonment, Khaled returned to Germany and issued a complaint to the European Court of Human Rights against the state of Macedonia. The Court ruled that Macedonia had violated Articles 3 (freedom from torture), 5 (freedom from unlawful detention) and 8 (right to privacy) of the European Convention on Human Rights. Further, under Article 13 (right to an effective remedy), it declared Macedonia responsible to compensate Khaled. Macedonia subsequently awarded him an official apology, paid him €60,000 in compensation, introduced new domestic anti-torture laws and created a commission to investigate allegations of torture. It was a historic case, forming the first denunciation of the CIA’s torture practices in an international court of law and ensuring that similar cases would never again happen on Macedonian soil.
So, would the Asia-Pacific benefit to follow suit and establish its own court of human rights? Considering how insufficient its current systems of human rights protection are in comparison to other regions, and the institutional vacuum a court would be poised to fill, the answer is a resounding yes.
While the Asia-Pacific does not have a regional organisation of its own, it is host to two sub-regional organisations: the Association of South-East Asian Nations (ASEAN) and the Pacific Islands Forum (PIF; see right). With regards to human rights, neither have courts nor binding laws. ASEAN has taken initial steps, with the creation of its own ASEAN Human Rights Declaration and an Intergovernmental Commission on Human Rights in 2012. The PIF has no formal human rights infrastructure, although it relies on the work of the Asia Pacific Forum (a coalition of national-level human rights committees) and the Pacific Community (a regional development organisation), who regularly monitor its human rights status against international (UN) standards.
While these systems are a start, their powers to make real change are meagre. The fact that the PIF doesn’t have any regional human rights standards or formal processes for dealing with abuses is evidence enough. Similarly, while ASEAN’s Declaration sets out a comprehensive range of human rights standards, it’s not legally binding.[4] Further, its Human Rights Commission has little capacity to make meaningful assertions because of ASEAN’s core values. Known as “the ASEAN Way”, these values – informality, non-interference in the affairs of other member states and consensus-based decision making – preclude harsh criticism of member states.[5]
However, recent history also shows grounds for optimism. In 2009, the PIF suspended Fiji’s membership for failing to hold elections after a military coup. Fiji then yielded and allowed free and fair elections in 2014, after which it was reinstated as a member. This shows that the PIF, while lacking a unifying human rights charter, maintains a fierce respect for human rights and has the political will to place pressure on its members who don’t concur.
Also, ASEAN, which only established itself as a regional organisation in 2007, is rapidly heading along a trajectory towards becoming a more closely integrated body. Gradually, it is gaining the will to intervene in the affairs of its members.[6] The idea that it would create a Human Rights Declaration would have seemed absurd in the 2000s, yet it has made this step forward with ease.
Finally, grounds for optimism can be found within the ASEAN Declaration itself (linked here). It’s a great document, setting out a broad and comprehensive body of human rights. It covers the whole range of civil, political, social, economic, cultural and environmental rights, along with mention of special rights for the elderly, ill and disabled. It embraces all the standards set out in the UN’s Universal Declaration and only seeks to expand on them to go beyond the basics. The only problem is that it’s not legally-binding, but its comprehensiveness shows that, if it were made binding, no rights would go unprotected.
Thus, the Asia-Pacific is ready for a court of human rights. On one hand, ASEAN has a key human rights document and is ready for closer integration, while on the other, the PIF has a closely-integrated system and is ready for a human rights document. The two halves can make a whole. Couple this with the persistence of human rights violations in the Asia-Pacific and the failure of the current systems targeted at easing abuses and you have a region begging for broad and comprehensive reform.
There are, however, arguments to the contrary. A key advantage underpinning regional human rights arrangements is that they can tailor global understandings of human rights to a local context. They allow regions to integrate global laws within their own cultural values to make them feel more natural, rather than imposed by the UN. This view underpins ASEAN’s current arrangement, wherein their human rights commitments are subservient to the values of the ASEAN Way. A court with power to punish would thus contradict ASEAN’s core values. And given many PIF nations have barely ratified any global human rights treaties there may also be little will to sign onto a legally-binding regional treaty, especially with countries with far bigger populations and economies that might overwhelm theirs.[7]
Yet necessity begs for change and compromise. The past two decades have shown that the current arrangement isn’t working to avert human rights abuses. If the Asia-Pacific truly wants to stand up for human rights, it must be willing to make a change, no matter how politically difficult. Yes, ASEAN was founded as an organisation with limited powers and yes, principles of non-interference dominate how it understands itself, but it is also an organisation in constant evolution. It can change. And yes, the PIF may be unwilling to mix with the more powerful nations of ASEAN, but the Council of Europe also shows that micronations can benefit from regional integration. It can work.
It won’t be an easy task. It will require revision of the ASEAN Charter and many compromises will need to be made. Nonetheless, if the nations of ASEAN and the PIF are serious about their human rights commitments, it is the way forward. We can no longer tolerate business as usual.
By Robert Elkerton
Thanks to David Cao, Viraj Patel and Elizabeth Pham for editing
Notes: [1] For the purposes of this article, “the Asia-Pacific” refers to Southeast Asia and Oceania. [2] FAO and UNICEF, Asia and the Pacific Regional Overview of Food Security and Nutrition 2021: Statistics and Trends (Bangkok: FAO, 2021), 10. The figure of 132 million comes from combining the recorded totals for Oceania and South-eastern Asia. [3] Duxbury, Alison, and Hsien-Li Tan. Can ASEAN Take Human Rights Seriously? (Cambridge: Cambridge University Press, 2019), 16. [4] Association of South-East Asian Nations, ASEAN Human Rights Declaration and the Phnom Penh Statement on the Adoption of the ASEAN Human Rights Declaration (AHRD) (Jakarta: ASEAN Secretariat, 2012). https://asean.org/wp-content/uploads/2021/01/6_AHRD_Booklet.pdf. [5] Duxbury, and Tan. Can ASEAN Take Human Rights Seriously?, 354-355. [6] Duxbury, and Tan. Can ASEAN Take Human Rights Seriously?, 359. [7] Pacific Community, Human Rights in the Pacific: A Situational Analysis 2020 (Suva: Pacific Community, 2020), 10.
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