The document provides an overview of regional human rights systems in Europe, Africa, and the Americas and compares them to the emerging system in Southeast Asia. Some key similarities across regional systems include recognizing human rights as an objective in the founding treaty, conditioning membership on human rights criteria, effective implementation monitoring, and independent supervisory bodies like a commission or court to promote and protect rights. The ASEAN system differs in that its charter does not reference human rights criteria for membership and its 2012 Declaration emphasizes national laws over universalizing norms. Critics argue this makes rights too restrictive and vulnerable to limitations in practice.

1. Regional Limitations and
Universality of Human
Rights Norms in ASEAN
Yuyun Wahyuningrum, MA,
Senior Advisor on ASEAN and Human Rights,
Human Rights Working Group (HRWG) Indonesia,
E-mail: wahyuningrum@gmail.com

2. Introduction: Regionalism &
Human Rights Systems

Regionalism has become a valuable feature in the last coupe of
years, including in international human rights law. Regional human
rights systems such as in the Americas, Europe and Africa and subregional Southeast Asia, share to some extent in the same origins as its
global system, the United Nations.

At the same time there is a danger that states who wish to escape
global scrutiny could submit themselves to less exacting regional
human rights monitoring and then claim that they should not be
subjected to further international supervision.

The question arises whether global and regional systems for
international human rights monitoring strengthen, or weaken, each
other. They have the potential to break away from the Universalist
aspirations by posing different and lower standards of protection.
Regional systems are seen to play a complementary role to the
global system.

The article explores the level of differences among regional human
rights systems against the international one, including in ASEAN

3.  Each regional system will be assessed based on the
following:
1.
2.
3.
4.
5.
6.
7.
8.
the role of human rights in the principles and
objectives of the ‘mother/regional organization’ of
which the human rights systems form part;
human rights and the membership criteria of these
‘mother/regional organizations’;
the relevant human rights instruments;
human rights supervisory bodies and their mandates;
criteria for appointment of members of supervisory
bodies
supervision of implementation of judgments;
complementarity between the regional and the
global systems;
available resources

4. Organization of
American States (OAS)

Principles and Objective: The Charter of the Organization of American States
(OAS) was adopted in 1948. Human rights are not integral part of the purpose
and principles of the OAS, but recognizes the Inter-American Commission on
Human Rights as an organ of the OAS.

Membership criteria: All 35 independent states of the Americas are members
of OAS.

Human rights instruments: The American Declaration of the Rights and Duties
of Man was adopted in April 1948. The American Convention on Human
Rights was adopted in 1969. The OAS has adopted two protocols to the
American Convention, dealing with economic, social and cultural rights, and
the death penalty respectively.

Supervisory bodies and their mandates: The Inter-American Commission on
Human Rights was established through a resolution of the OAS in 1959. The
Inter-American Court of Human Rights was established in 1979.

One of the mandates of the Inter-American Commission is to undertake onsite visits which result in the publication of country reports on the human rights
situation in the country under investigation. The Commission further has a
number of thematic rapporteurships, similar to the special rapporteurs of the
United Nations and shall hear individual complaints alleging violations of the
Convention or the American Declaration. The Commission may adopt
precautionary measures ‘in serious and urgent cases’

5. Organization of
American States (OAS)

Appointment and criteria for appointment of members of the supervisory
bodies: The seven members of IACHR are elected in their personal
capacities by the OAS General Assembly from a list of candidates
nominated by member states. The members are required to be ‘persons of
high moral character and recognized competence in the field of human
rights’. The independence of the two institutions is clearly a stated objective.

Supervision of implementation of judgments: According to article 65 of the
American Convention, the Court shall inform the OAS General Assembly
about non-compliance with its judgments. The Assembly has rarely taken
action in this regard and it has been left to the Court itself to develop a
system of supervising compliance with its judgments.

Complementarity: Inter- American Commission and Court will not consider a
complaint that has served before a UN treaty body.

Resources: The Inter-American Commission has been allocated around US$
3.5 million annually from the OAS budget and receives around US$ 3 million in
contributions from donors. The Court has a budget of approximately US$ 1.5
million allocated by the OAS. In 2008 the Commission had 70 staff members
and the Court had 21 staff members

6. The Council of Europe

Principles and objectives: The Statute of the Council of
Europe (CoE) was adopted in 1949. Human rights are part of
the purpose of the CoE. Human rights concerns are the main
reason for its existence.

Membership criteria: The human rights record of the state
concerned is one of the key factors that determine whether
a state may join the CoE, and it may also lead to its expulsion.
Membership of CoE is by invitation only and requires that the
state is willing and able to fulfill the obligations.

Human rights instruments: Convention for the Protection of
Human Rights and Fundamental Freedoms (European
Convention on Human Rights) on 4 November 1950.
According to the preamble of the European Convention, the
European system was established ‘to take the first steps for
the collective enforcement of certain rights stated in the
Universal Declaration’. The stated objective is therefore that
the regional system will serve as a mechanism to enforce
global norms.

7. The Council of Europe

Supervisory bodies and their mandates: European Commission of Human Rights to serve as
a screening mechanism and could take the case to the European Court of Human Rights.
Later the Commission was abolished through Protocol 11 to the Convention, which entered
into force in 1998. The Commission and Court were replaced by a new permanent Court.
Since then individuals in the 47 member states can access the Court directly.

In 1999 the first CoE Commissioner for Human Rights was appointed. The Commissioner
works through country visits, thematic recommendations, awareness raising and assistance
to national human rights structures. Compliance with the European Social Charter is
monitored by the European Committee of Social Rights. The Committee of Ministers of the
CoE and the Parliamentary Assembly also play a role in the state reporting system which is
the main method of monitoring compliance with the European Social Charter. The
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment provides for an innovative monitoring system with preventative visits to places of
detention.At the heart of the CoE system consequently is its protective mandate, based on
individual complaints, although this is supplemented by the promotional function of for
example the Commissioner for Human Rights.

Appointment and criteria for appointment of members of the supervisory bodies: The
number of judges of the European Court of Human Rights is equal to the number of states
parties to the European Convention which, as noted above, is currently 47.46 The judges of
the Court are elected by the CoE Parliamentary Assembly from a list of three candidates
nominated by the member state concerned.

8. The Council of Europe

Supervision of implementation of judgment: According to article 46(2) of
the European Convention, the Court shall transmit its final judgment to the
Committee of Ministers of the CoE ‘which shall supervise its execution’. The
European system of supervision is undoubtedly the most effective of the
three regional systems, and there is a high level of compliance, at least in
respect of the payment of compensation, by member states.

Complementarity: The Court will not consider a case which has ‘already
been submitted to another procedure of international investigation or
settlement and contains no relevant new information. Some member
states of the Council of Europe have entered reservations

Resources: The budget of the European Court is provided for under the
general budget of the CoE. The allocation for the Court in 2008 was a
massive 53.46 million Euros,51 around 25% of the CoE budget. At the end of
2008 the registry of the Court had 626 staff members. In terms of its case
load but also its resources, the European system is in a different league
from the other two regional systems.

9. African Union

Principles and objectives: The Charter of the Organization of
African Unity (OAU) was adopted in 1963. One of its purposes: the
promotion of ‘international co-operation, having due regard to
the Charter of the United Nations and the Universal Declaration of
Human Rights’.

The AU replaced the OAU in 2002. The Constitutive is replete with
references to human rights and the objectives of the AU include to
‘promote and protect human and peoples’ rights in accordance with
the African Charter on Human and Peoples’ Rights and other relevant
human rights instruments’.

Membership criteria: There are no human rights criteria for a state
to become a member of the AU. However, ‘sanctions’ can be
adopted against a member state which ‘fails to comply with the
decisions and policies of the Union’.

Human rights instruments: The African Charter on Human and
Peoples’ Rights (African Charter), adopted in 1981. The Charter
entered into force in 1986 and has been ratified by all 53 member
states of the African Union.

10. African Union

Supervisory bodies and their mandates: The African Commission
monitors compliance with the African Charter through state
reporting; complaints by states, individuals or NGOs; special
rapporteurs and working groups. The Commission also adopts
resolutions interpreting provisions of the Charter, and may
indicate provisional measures ‘to avoid irreparable damage
being caused’.



Protocol on the African Court on Human and Peoples’ Rights was
adopted in 1998. Individuals do not have the right to approach the
Court directly unless the member state has made a special
declaration to this effect, in which case the individual can seemingly
bypass the Commission.
There is a committee monitoring compliance with the African Charter
on the Rights and Welfare of the Child
Appointment and criteria for appointment of members of the
supervisory bodies: The eleven members of the Commission and
the eleven members of the Court are nominated by member
states and elected by the AU Assembly.

11. African Union
 Supervision of implementation of judgments: the
Executive Council of the AU, shall be notified of the
judgments of the Court and monitor their execution.
Since no decision has been handed down by the
Court, it remains to be seen how this will be applied
in practice. There is not an established tradition of
supervision of the decisions of the Commission.
 Complementarity: The Commission will not consider a
case which is pending before or has been dealt with
by another international human rights body.
 Resources: There has been an increase in the
resources available for the Commission in 2007.

12. Some similarities across
regional systems

The promotion and protection of human rights should be recognized
as an objective and guiding principle of the ‘mother organization’ in
its founding treaty.

Membership to the ‘mother organization’ should be conditioned
upon observance of human rights and democracy criteria, in terms
of the admission and possible expulsion of member states or lesser
forms of sanction.

There should be an effective mechanism in the ‘mother
organization’ to follow up the implementation by states of decisions
by the human rights supervisory bodies.

A regional human rights system should be created by a treaty to
which states that are members of the relevant regional organization
can become party. The treaty should clearly set out the applicable
rights catalogue, either in original terms or by reference to other
international instruments, that does not lower the global standards of
human rights protection and if possible poses higher standards.

13. Some similarities across
regional systems

The regional human rights systems are also subject to other
international human rights supervisory systems, which should be
geared towards complementarity. A regional system should not
consider cases that have already been decided on the global
level.

Regional human rights supervision should be done by a human
rights monitoring body (such as a commission) or a court with
both mandate: the promotion and protection of human rights.

The monitoring body and court, where established, must be
composed of independent and impartial experts. The
independence and impartiality of the members must be
guaranteed through: Confirmation hearings and election in an
open and transparent manner, Privileges and immunities.

Proper procedures for the removal of commissioners and judges.

14. Some similarities across
regional systems

Where a regional human rights monitoring body such as a
commission is established, its mandate should include:








On-site visits to investigate and report on the human rights
situation in member states.
Effective response to emergency situations.
Appointment of independent special rapporteurs, working
groups etc., as may be needed.
Consideration and investigation of individual complaints in
respect of alleged human rights violations by member states.
Publication and dissemination of reports and decisions. The
monitoring body itself, and not another decision-making body
of the regional organizations, should decide whether and what
to publish.
Transparency should be the norm.
Interaction with civil society organizations, national human
rights institutions and other international mechanisms with a
human rights agenda.
Inter-state communications and state-reporting mechanism.

15. Some similarities across
regional systems

Where a regional court with a human rights mandate is
established, it should hear cases as referred to it by the relevant
human rights monitoring body, member states or individuals. The
court should have contentious as well as advisory jurisdiction. The
court’s judgment should be widely disseminated.

The commissioners and judges must be broadly representative of
the region in terms of gender, legal systems, language and
geography

The relevant regional organization has the responsibility to ensure
the continuing effectiveness of the supervisory bodies that they
establish, in consultation with civil society.

The regional organization has to provide the secretariats of the
supervisory bodies with adequate resources. The commissioners
and judges should control the appointment of key staff

16. ASEAN
 Principles and Objectives: Human rights are
mentioned in the Charter: preamble, purposes,
principles and Article 14 mandates the
establishment of ASEAN human rights body.
 Membership criteria: no reference to human
rights in respect of membership of ASEAN in its
Charter. ASEAN’s membership is based on
geography.
 Human Rights Instruments: in November 2012,
ASEAN adopted ASEAN Human Rights
Declaration. Before AHRD, ASEAN has adopted
…

17. Norms/Instruments
Children
• Declaration on
Commitments
on for Children
in ASEAN
(August 2001)
• Ha Noi
Declaration on
The
Enhancement
of Welfare and
Development
of ASEAN
Women and
Children ; 28
Oct 2010
Women
Trafficking
• Declaration on
the Elimination
of Violence
Against Women
in the ASEAN
Region; 30 June
2004
• Ha Noi
Declaration on
The
Enhancement
of Welfare and
Development
of ASEAN
Women and
Children ; 28
October 2010
•1997 ASEAN
Transnational
Crime
•ASEAN Declaration
Against Trafficking
in Persons
Particularly
Women and
Children; 29
November 2004
• ASEAN
Practitioner
Guidelines on
Effective Criminal
Justice Responses
to Trafficking in
Persons (2007)
•Leaders Joint
Statements on TIPs
in Southeast Asia,
May 2011.
Migrant
workers
•ASEAN Declaration
on the Protection
and Promotion of
the Rights of
Migrant Workers 13
January 2007,
Cebu, Philippines

18. AHRD

AHRD lies in its claims of adherence of that the enjoyment of human
rights and freedoms must be balanced with the performance of
duties (Article 6), the regional and national context (Article 7),
limitation of rights (Article 8), and reference to national laws i.e.
regarding the right to participate in the government (Article 25.1),
right to vote (Article 25.2), right to form ad join trade union (Article
27.2).

AHRD excluded the freedom of association, which was initially
appeared in Article 24 along with the freedom of peaceful
assembly.

AHRD emphasizes a supreme reference on the national laws at the
regional level, rather than as a platform to universalize human rights
and expand ownership on international norms at the regional level.

Shortcomings:

The first is that it renders the rights stipulates in the Declaration as too
restrictive to regional and national context, some limitation and one’s
performance to her/his duties, in its implementation. This point will make
rights that have been extensively elaborate in the Declaration
meaningless, as some countries do not guarantee human rights in their
constitutions and several national laws provide restriction rather
protection of rights.

19. AHRD

The second is that the Declaration is perceived as too
ambiguous. While number of ‘regional and national
particularities’ articles are in the body of Declaration,
its Phnom Penh Statement guarantees the compliance
with the international norms

AHRD also reflects the continuing ambiguity of ASEAN
Member States on their commitment on human rights.

Finally, the Declaration is in conflict with international
human rights norms. AHRD takes general principles as
to limit rights rather than expanding them, provides no
guarantee to freedom of association; deny ethnic
minority and the rights of indigenous peoples; and
adherence to national laws and context; present the
useless at best and at worst harmful for human rights.

20. Three Cs in Human Rights Systems
ASEAN Human Rights Systems
Conventions:
Norms/
Commission/Committee
ASEAN Human
Rights Court??
Instruments
ACWC
2010
AICHR
2009
ACMW
2008

21. ASEAN
 Supervisory bodies and their mandates: The Terms of
Reference (TOR) of what is now called the ASEAN
Intergovernmental Commission on Human Rights
(AICHR) was adopted by the ASEAN Ministers of
Foreign Affairs on 20 July 2009.

The AICHR is consequently not established through a
treaty. The TOR do not include any rights catalog,
though it provides that the Commission should ‘uphold
international human rights standards as prescribed by
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’. While there is a clear
reference to international human rights standards,
other provisions of the TOR place a strong and
arguably countervailing emphasis on national and
regional particularities.

22. AICHR
MODALITIES, PRINCIPLES, NATURE
noninterference
intergovernment
al body
evolutionary
approach
consultative
consultation
consensus

23. ASEAN

Appointment and criteria for appointment of members of the
supervisory bodies: As indicated by its name, the ASEAN
Intergovernmental Commission on Human Rights is not intended to
be an independent body; it is an intergovernmental consultative
body. Its members are not expected to be independent. Each
member state will appoint a ‘representative to the AICHR who shall
be accountable to the appointing government’. A representative is
appointed for a term of three years, but may be recalled by his or
her government before the term comes to an end.

Supervision of the implementation of the judgment: N/A

Complementarity: N/A

Resources: AICHR funding comes from Member State’s
contribution of USD 20,000 to its annual funds. AICHR cannot
receive funds from external partners for the purpose of
human rights protection

24. ASEAN

It is clear from the above that the AICHR is in nature very
different from the three established regional systems.

While it is widely recognized that the creation of this body
could be an important first step towards more robust
protection of human rights in the region, it should be
recognized that, because safeguards such as provisions
concerning the independence of the Commissioners are
absent, there is a constant danger that as this body may be
used to shield rather than to stop human rights violations.

The door for AICHR’s development or evolution of a more
independent body with stronger protective powers is left
open by para 9.6 of the TOR, which provides that the TOR
shall be reviewed after five years.

25. TOR REVIEW 2014

AICHR shall assess its works and submit recommendations for
the consideration of the Foreign Ministers. For this purpose, the
review should be inspired by the 2009 Hua-Hin Declaration to
launch AICHR, to include:

AICHR to provide a forward looking strategy to strengthen
regional cooperation on human rights in the region,

AICHR to serve as a vehicle for progressive social development
and justice and the full realization of human dignity and the
attainment of higher quality of life for ASEAN people,

AICHR to receive full support and provision of adequate
resources by ASEAN member states,

AICHR to acknowledge the contribution of stakeholders in the
promotion and protection of human rights in ASEAN, and
encouraged their continuing engagement and dialogue,

AICHR to develop in evolutionary approach in achieving
cooperation on human rights as an overarching institution,

AICHR should balance its mandate on promotion and protection
of human rights.

26. Recommendation for
Review:

AICHR should function as human rights monitoring body, which
supplement and complement the national and international systems.

The emerging good practices for human rights institutionalisation in
ASEAN, such as the Human Rights Dialogue that was initiated by
Indonesia in 2013, the Retreat to discuss human rights issues during
AICHR regular session that was initiated by Brunei Darussalam, the visit
of prison that was introduced by Thailand and the possible practice to
observe court, need proper and positive follow-up internally in AICHR.

AICHR members must be composed of independent and impartial
experts. The independence and impartiality of the members must be
guaranteed through the confirmation hearings and election in an
open and transparent manner

AICHR members must be broadly representative of the region in terms
of gender, legal systems, language and geography.

The retreat was occurred during the 12th AICHR’s meeting in Jakarta,
May 2013. AICHR allocated two hours retreat to discuss specific issues
related to the human rights of Rohingya in Myanmar and the missing
activist, Sombath Somphone of Laos.

27. Recommendation for
Review

AICHR should take necessary measure to ensure that ASEAN exercise
its responsibility to ensure the continuing effectiveness of the
supervisory bodies that they establish, in consultation with civil
society.

The regional organisation has to provide the secretariats of the
supervisory bodies with adequate resources. The members should
control the appointment of key staff.

In long term, AICHR should consider to provide recommendation to
ASEAN Foreign Ministers to establish human rights court to hear
cases.

AICHR needs to focus its next three years to gain recognition from
the rest of ASEAN bodies and organs as the overarching body in the
region deal with human rights with proper engagement and
substantive cooperation.

For this purpose, AICHR have to to invite them to series of meetings and
identify human rights gaps, interests and needs for cooperation. More
importantly, AICHR should ensure that alignments and cooperation with
ACWC and ACMW will be materialized.

28. Challenges ahead in
ASEAN
 Consensus way of making decision?
 Non-interference or the absence of political
will?
 Deficit of democracy, good governance
rule of law culture
 Different political systems and practices

29. Final Words

Regionalism offers room for local resonance and
consequently ownership in respect of the norms espoused as
well as the enforcement process that the global system
cannot hope to do. Regional mechanisms are simply more
localized agents of the global human rights project.

Universality is too often simply seen as the existence of a single
set of norms that is applicable to all people, at all times and all
places. Nevertheless, regionalism in the field of human rights
was not popular/invisible at the United Nations.

In fact, the determination of what the contents of those
‘universal norms’ should be in the first place. Unless there is
participation by people from around the world in determining
what those norms are, they can hardly be described as
universal.

Regional and sub-regional mechanisms, with all the potential
for conflict which they entail, are a vital part of this enterprise
to make the human rights project more inclusive.