Written by Loren Bustos The article was first published on January 14, 2022 on STEAR
Safeguarding human rights has been a challenging pursuit in various contexts in Southeast Asia, and as the fight against the COVID-19 pandemic lingers on, the most vulnerable communities continue to suffer from rampant human rights violations in the region. The pandemic revealed debilitating problems related to weak governance, corruption, poverty, political instability, and, as this article will highlight, the lack of a strong human rights mechanism for ASEAN as a region.
After more than a decade since the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR), it remains an institution without a robust mandate in upholding and protecting human rights. Time and time again, the AICHR has received criticism from civil society actors, national human rights institutions, international organizations, academia and the media on its ineffectiveness and inefficiency in addressing human rights abuses. In 2019, the Asian Forum for Human Rights and Development (FORUM-ASIA), ASEAN Parliamentarians for Human Rights (APHR) and Centre for Strategic and International Studies (CSIS) created a joint statement to push for a stronger human rights mechanism in the region. It was reported that about six million USD were allotted to the 121 AICHR led activities from 2010 to 2018; however, these activities have not led to the implementation of a holistic human rights mechanism, nor has they significantly improved the human rights conditions of citizens of ASEAN countries (Reliefweb, 2019).
The Weakness of AICHR
In 2009, the AICHR was established as the first regional human rights institution in Asia (Wahyuningrum, 2014). Article 1(7) of the ASEAN Charter stipulated the objective of ASEAN, namely “to strengthen democracy, enhance good governance… protect human rights and fundamental rights, with due regard to the rights and responsibilities of the Member States” (ASEAN Charter, 2008, p. 4). This entails that ASEAN, as an organization, has the responsibility to protect human rights and to meet the necessary conditions; Article 14 of the ASEAN Charter established the AICHR as its human rights body (ASEAN Charter, 2008, p. 19). The AICHR was mainly tasked to promote human rights and the fundamental freedoms of the ASEAN community: “AICHR also takes care of the increasing rights of the ASEAN people to live in peace, dignity and prosperity” (Thamrin 2018, p. 19).
Despite this remarkable step, the Terms of Reference of the AICHR are limited and do not include an authorizing and independent steering capacity to “investigate, monitor or enforce” human rights (Wahyuningrum 2014, p. 14; Hara 2019; p. 7). During the earlier years of the ASEAN Charter, leaders of the ASEAN member states have expressed different perspectives towards their understanding of and position towards human rights. Several leaders have been reluctant to strictly enforce Article 14 for fear of it potentially being detrimental to national sovereignty; thus, in order to preserve national sovereignty and avoid foreign interference, it was proposed that ASEAN should have its own unique human rights standards (Nguyen 2009, p. 103).
The weakness of AICHR translates to the quality of action and responses it has developed towards human rights violations in the region; notable examples include the incapacity of AICHR to address the Rohingya crisis in Myanmar (Hanara, 2019; Limsiritong, 2018), little to no action having been taken against the bloody “war on drugs” under President Duterte’s administration in the Philippines, and regionally speaking, the lacking responses to problems exacerbated by COVID-19 across ASEAN. For a considerable time, and especially during the pandemic, various ASEAN communities – particularly those most vulnerable to human rights abuses – have not benefitted nearly enough from the promotional role of the AICHR.
In June 2020, the FORUM-ASIA, SAPA, and SHAPE-SEA launched a “Rapid Assessment of Civil Society Organisations on the effectiveness of ASEAN during COVID-19” to evaluate ASEAN and the AICHR’s role in responding to the COVID-19 pandemic crisis. There were 26 ASEAN respondents in the assessment conducted. As a result, “more than 80% of the respondents were of the view that the human rights situation in the region is severely deteriorating. 40% of respondents strongly disagreed that ASEAN leaders have successfully protected the rights of people during the pandemic. In addition, 40% of the respondents strongly disagreed that the ASEAN Human Rights Mechanism has ensured the adoption and implementation of a human rights based approach in the ASEAN pandemic response” (Forum-Asia, 2020). Moreover, the paper also highlighted a comparative analysis which exposed the apparent lack of capacity of the AICHR relative to other regional human rights institution in the world.
Based on previous analysis, thus far, the AICHR has failed to act as the protector and promoter of human rights to which the ASEAN region has aspired. Collectively, however, there have been efforts to improve the status quo. The COVID-19 pandemic has prompted progressive Commissioners to underline the urgency of improving human rights protection. To illustrate, the AICHR released a statement on COVID-19 in May 2020, urging ASEAN member states to integrate and put human rights at the forefront of their recovery response actions (AICHR, 2020). Additionally, in November 2021, the AICHR held a Special Meeting to discuss the progress of their 2021 Priority Programmes and, significantly, the development of the Monitoring and Evaluation (M&E) framework of the AICHR Five-Year Work Plan 2021-2025. In the meeting, recommendations from several civil society organizations were taken into account as well, which is promising (ASEAN, 2021).
The AICHR might have a limited power for now due to its Terms of Reference and several other factors, but it is not a hopeless case; these limits should not impede its duty to promote and protect human rights within ASEAN, especially as the region continues to fight the pandemic. It must continue its work in the region, considering grassroot communities and organizations, civil society, and national human rights institutions, and taking their recommendations seriously. In these trying times, there might be a glimpse of hope in strengthening the role of the AICHR. Ultimately, ASEAN should take the path which lends itself most to developing into a legitimate and dependable human rights institution.
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