The ASEAN Human Rights System: A Critical Analysis

This paper analyses the effectiveness of ASEAN human rights regime. When the organization was first established in 1967, human rights was never part of the discussion among ASEAN’s founding fathers. ASEAN was originally built to reduce the political tension among its members through economic and social cooperation. It was not until 1990s, when ASEAN member countries experienced domestic as well as international pressures to pay attention to human rights issues that ASEAN began to address human rights seriously. With the establishment of ASEAN Intergovernmental Commission on Human Rights in 2009, and the adoption of ASEAN Human Rights Declaration in 2012, ASEAN has achieved a milestone in setting up its own human rights mechanisms. This paper will apply theory on regime effectiveness in evaluating ASEAN human rights regime. Several exogenous and endogenous factors will be assessed, such as: the design features of AICHR and the ability of AICHR in arranging or initiating programs for its members. The research shows that the effectiveness of ASEAN human rights mechanisms is being constrained by several factors, including the poorly constructed design features and the lack of capacity to comply with human rights norms.

2014

While the ASEAN Charter of 2007 heralded an era of improved democracy, human rights protection and good governance in accordance with the rule of law, the reality on the ground tells a different story. While all of the trappings of a human rights mechanism are in place, the normative and protective capacity of the regime is ambiguous at best. The adoption of core international human rights treaties by ASEAN member states presents an ambiguous picture, one which reveals significant variations between the ten countries. The purported institutionalisation of international human rights standards since 2007 in the region via the creation of an ASEAN human rights mechanism in that year is betrayed by the poor condition of actual protection of human rights at the national and regional level. The article analyses the situation on the ground in light of the normative obligations and aspirations of the states. " Manuscript

Northwestern Journal of International Human Rights, 2012

Loyola of Los Angeles law review, 2018

I. INTRODUCTION With regards to international human rights law, academics have described Asia as a "black hole," 1 or "the last frontier" 2 in regional human rights cooperation, and perhaps with good reason. Whereas Europe, Africa, and the Americas have had regional legal systems for human rights enforcement for years, Asia has yet to establish a concrete and legally binding regional mechanism to redress human rights violations. This may, however, be poised to change. Within the last decade, the Association of Southeast Asian 3 Nations ("ASEAN" or "Association") has increasingly made human rights a priority in their regional operations. The Association created a human rights

LEGAL ANALYSIS OF HUMAN RIGHTS PROTECTION IN ASEAN: BALANCING ECONOMIC INTERESTS, HUMANITY AND GOVERNANCE, 2024

This academic article delves into the intricate relationship between economic interests and human rights within the context of Southeast Asian countries, focusing on the Association of Southeast Asian Nations (ASEAN). With the total GDP of ASEAN surpassing 3.66 trillion US dollars in 2022, juxtaposed against below-average human rights protection scores, the study endeavors to elucidate the extent to which states are inclined to prioritize economic gains over safeguarding human rights. Two original theories are presented by the author, challenging conventional notions of state sovereignty in the face of economic globalization. The first theory posits that the erosion of sovereignty, driven by economic imperatives, compromises states' capacity to effectively uphold human rights. The second theory contends that contemporary world trade policies often aim not to directly promote human rights, but rather to avoid detrimentally impacting them, resulting in a regression in the creation of binding treaties for human rights protection. The study scrutinizes the historical foundations of ASEAN, emphasizing its unique regionalism framework distinct from supranational bodies like the EU. The incorporation of human rights in the ASEAN Charter and the subsequent establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) are analyzed in depth. The mandates and functions of AICHR are evaluated, shedding light on its role as a regional platform for dialogue on human rights among member states. Furthermore, the article assesses the legal nature of the ASEAN Declaration on Human Rights and its implications for the protection of human rights within the ASEAN community. The absence of a formal treaty monitoring mechanism within ASEAN is highlighted, underscoring the aspirational nature of many agreements. The study also delves into the examination of existing guarantees of human rights within ASEAN trade agreements, specifically the ASEAN Trade in Goods Agreement and the ASEAN Trade in Services Agreement. In conclusion, this comprehensive study aims to provide nuanced answers to critical questions concerning the intersection of economic interests and human rights within ASEAN. By examining historical, legal, and institutional dimensions, the article contributes to a deeper understanding of the complex dynamics at play in this crucial region.

Journal of Alternative Perspectives in the Social Sciences, 2015

The ASEAN Intergovernmental Commission on Human Rights set up in 2009 signaled a path breaking achievement for human rights. It was the first of its kind, in the last region of the world to adopt a mechanism for human rights protection. However, with the ASEAN Human Rights Declaration of 2012 hopes of a robust and effective regional mechanism for the promotion and protection of human rights in Southeast Asia were essentially dashed. The perplexing question to which an increasing number of academics and scholars are asking is why establish a mechanism that only promotes and offers little or no human rights protection? This paper seeks to provide a theoretical framework for future research and analytical conceptualization of regional human rights and its attendant mechanisms in ASEAN. Beginning with a critique of mainstream theories realism and constructivism, this paper will move on to offer a blended version of regime analysis for studying AICHR. Hopefully this will provide clarity and a theoretical pathway for future substantive research on the absence of human rights protection in the newly established regional human rights mechanism.

2009

In late 2008 the Association of Southeast Asian Nations (ASEAN) committed to creating a human rights body, which emerged as the Intergovernmental Commission on Human Rights (ICHR), the terms of reference (TOR) for which have since been adopted. Although the TOR for the commission currently outlines a primarily advisory rather than an enforcement role, the very existence of the ICHR has the potential to act as a trigger to further discussion on human rights issues in member states and open avenues for further action. To take maximum advantage of this opportunity to further the human rights agenda in ASEAN member states, it is essential that critical early decisions are made carefully so as to leave the most latitude for future action. While some observers are concerned that the ICHR lacks teeth, the fact that all ten ASEAN governments have agreed to implement a human rights commission is remarkable and is an essential first step toward ASEAN's stated goal of respecting and protecting human rights. The East-West Center promotes better relations and understanding among the people

Human Rights Law Review, 2014

Since the signature and ratification of the Association of Southeast Asian Nations (ASEAN) Charter in 2007, Southeast Asia and its regional organisation, ASEAN, have been transitioning at great speed towards creating and implementing its pillar structure of three 'communities' in economy, political-security and socio-cultural aspects of integration. Of particular interest is the mainstreaming of human rights within the ASEAN Charter, thereby implicitly linking economic, security and human rights issues among others in parallel legal standing. It goes without saying that human rights in Southeast Asia are both contentious and highly contested. This is evidenced first by the fact that the 'Asian' region is the last region of the world to have a human rights body. Secondly, the very long period of time between the emergence , or rather intersection, of rights discourse in 1993 with the World Conference on Human Rights and the document produced from it, the Vienna Declaration and Programme of Action, to the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009. Lastly, the frequently publicised and disturbing reports of human rights abuses throughout the region which continue up to the present. Given the newly emerging regional framework for the promotion and protection of human rights in Southeast Asia, there is a shortage of literature specifically on the subject of the AICHR. As such this book is timely and constitutes a substantial attempt to provide a specific account of the regional context for later scholarly work. The volume substantively begins with a discussion of national human rights institutions (NHRIs), of which ASEAN currently has four (Indonesia, Malaysia, Thailand and the Philippines). It provides a contextual understanding of the problems, limitations , possibilities and development of these NHRIs. What comes to the fore very quickly is the varying nature of NHRIs in terms of their independence, capacity and ability to act, which directly correlates to the differing national historical contexts in which these institutions came about. It is noted that some NHRIs have evolved into entities with substantial ability to protect individuals and act upon violations in a quasi-judicial capacity such as the Philippines, whereas others are hampered by a lack

2005

Asia-Pacific - Annual Research Journal of Far East & South East Asia

Since its inception, ASEAN has constantly faced criticism from western countries and international human rights organizations. This paper particularly focuses on ASEAN human rights and non-interference policy. ASEAN has established two new commissions: Intergovernmental Human Rights Commission and Protection of Women and Children. This study focuses on the current state of human rights in ASEAN and addresses the following key questions: how ASEAN deals with human rights problems? Why ASEAN response to human rights has been considered as insufficient to handle/tackle human rights problems effectively? Hence, a qualitative approach was applied to this study using secondary sources of data. This study is based on thorough literature review and critical analysis of ASEAN human rights situation, by reviewing the relevant studies on human rights challenges in ASEAN, and its strategies in tackling this challenge. This study concludes that although the problem of human rights is recognized ...

European Journal of Comparative Law and Governance

This paper analyses and compares the protection capacity of National Human Rights Institutions (nhris) in the Philippines and Thailand, as well as the impact of governmental action on their performances. Here, protection capacity means the extent to which the law authorizes the nhris to carry out protective functions in dealing with human rights violations. This comparison evidences that the Philippines’ nhri has greater protection capacity and much more stable mandates than the Thai nhri. Moreover, although the two nhris share the same core mandates to receive complaints of human rights violations, to investigate them, recommendation of remedial measures to the concerned parties, and referral to legal channels, the ways in which these mandates are carried out in the two countries differ. Also the legal and political means by which the governments of both countries have impacted the nhris’ performances, differ considerably.

Indonesian Journal of International Law, 2015

Regional mechanism on the protection of human rights in ASEAN formally has been developed since 2007 through the adoption of the ASEAN Charter in 2007 and the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009. Nevertheless, efforts on the law enforcement for human rights violations committed by ASEAN citizens and/or within ASEAN territory by establishing ASEAN human rights court is hardly to achieve due to national interest of each member states. Accordingly, for the objective of achieving justice and certainty of law, cooperation among ASEAN member states should be developed through other mechanism. This article tries to identify existing situations with respect to the protection and fulfillment of human rights particularly in regards to criminal matters in the ASEAN countries. Accordingly, the article examines the responses of the Member States to the development of human rights mechanism in ASEAN. Finally, we try to propose other mechanism in...

Rochdi Nazala, 2019

Albeit an ample of analysis has been given to the establishment of ASEAN Declaration on Human Right (ADHR), the fact that none of them have assessed the development of ADHR from an ethical point of view is somewhat peculiar. Therefore, this paper aims to fill the gap; that is to use an ethical framework of analysis to critically examine the process through which States in the region finally comes to that agreement. It asserts that the ASEAN’s affirmation toward international human rights norms is a reflection of the working of “ethics of responsibility”. The writing also covers an assessment addressing the likely of ADHR in helping to improve the quality of human rights situation in Southeast Asia. A suggestion can be made here is that it is possible for the ASEAN’s human rights mechanism to be developed further as to be effective in the future as long as there is one condition; domestic, regional and transnational activism should be working in concert not only to perform monitoring and evaluating the implementation of ADHR, but also to continue completing the “internalization” process of human rights norm in the region.