The Role Of Civil Society Organitations In The Development Of a Regional Human Rights Mechanism In SouthEast Asia

ELSAM, Bangkok – On 19-20 August 2015, the Institute for Policy Research and Advocacy (ELSAM) was invited as a representative of Indonesian civil society organisations to attend the “Dialogue between the ASEAN and Civil Society Organizations on the Development of a Regional Human Rights Mechanism” held in Bangkok, Thailand, and attended by about 40 participants from civil society organisations in Southeast Asia, representatives from the ASEAN Intergovernmental Commision on Human Rights (AICHR), representatives from the ASEAN Secretariat, and representatives of the government and National Human Rights Institutions from ASEAN Member States.

Unlike in other regions, the human rights mechanism in ASEAN is relatively new. Dr. Sriprapha Petcharamesree, Co-Chairperson of the Working Group for an ASEAN Human Rights Mechanism (Working Group), stated that the ASEAN human rights mechanism began from the Vienna Declaration on Programme and Action (VDPA) 1993, which underlined the importance of regional ruling to promote and protect human rights. “The urgency of a regional mechanism is crucial to support an international organisation, including the United Nations, in ensuring that international human rights instruments can be properly implemented,” said Santiago Canton, Executive Director of Robert F. Kennedy Center for Justice and Human Rights in his presentation. This then encouraged the Working Group to propose the formation of the ASEAN Human Rights Commission, which was manifested through the Term of Reference of the AICHR in 2009.

However, Emerlynne Gil, International Legal Adviser for Southeast Asia from theInternational Commission of Jurists (ICJ), noted several challenges in the implementation of the human rights mechanism in Southeast Asia. First, ASEAN Member States have a varied political background, from democratic to autocratic. For the authoritarian regimes, civil society organisations are limited from delivering the aspirations of communities whose rights are being violated. As a consequence of the lack of balance of power for the stakeholders, the involvement of all parties in the regional level remains a pipe dream. Another obstacle is the basic values of ASEAN such as the non-intervention principle, which allows the limitation of individual rights for the sake of economic development and social cohesion, in the maintenance of harmony of the states in Southeast Asia.

In view of these real challenges, the ICJ and the Working Group, as the organisers of the dialogue, also invited representatives from Africa, Americas, Middle East and Europe to share their best practices on the role of civil society organisations in ensuring respect, protection and fulfillment of human rights in their respective countries.

Africa: the role of the civil society organisations in the human rights system is more advanced, compared to Southeast Asia. The African Regional Program Director of ICJ, Arnold Tsunga, noted that 477 civil society organisations have obtained observer/consultative status from the African Union. This status means that they are given the opportunity to share opinions and consult as partners of the African Union in advancing human rights in Africa. Not only that, the role of the civil society organisations in the regional human rights mechanism is seen from the possibility of their filing charges on behalf of victims to the African Human Rights Commission in Banjul, Gambia.

Americas: Maria Leoni from the Center for Justice and International Law (CEJIL) explained that as a region with a long history of regional human rights mechanisms, the involvement of civil society organisations in the human rights system of the region is reflected in the formation of the Coalición de ONGs de las Américas. The coalition, whose members are American civil society organisations, is active in raising public interest to utilise the inter-American human rights system through dissemination and public training. Besides, the role of the organisation on an individual basis in supporting the upholding of human rights is also seen in their work program in recommending the Inter-American Human Rights Commission to create a regional human rights instrument and deliver initiatives of consultation to the Special Rapporteur.

Middle East: the weakness of the human rights system in the Middle East, according to Alice Goodenough, ICJ Legal Adviser for the Middle East and North Africa, is caused by the ineffectiveness of civil society organisation participation in the system of the Arab League. The participation is difficult in the system of the Arab Charter of Human Rights. Alice also stated that the role of the civil society organisations remains indirect, and only supported the report to the United Nations task force. Alice also noted that much political will is necessary for the governments to utilise the reports and recommendations of the civil society organisations to improve the human rights condition in the Middle East.

Europe: compared to the mechanisms in other regions, Europe is a success story of regional human rights mechanisms. According to the founder of the International Protection Center and also member of the ICJ Executive Committee Karinna Moskalenko, the European human rights mechanism is more popular than the United Nations’, as decisions from the European Court of Human Rights have a legally binding nature, and public access is widely allowed, including for civil society organisations, to forward petitions on a pro bono basis.

At the ASEAN level, the role of civil society organisations have begun since the formulation of the Guidelines on Accreditation of Civil Society Organisations (CSOs) by the ASEAN Coordinating Council (ACC) in 1986 in Manila, Philippines. In its development, to strengthen cooperation and promote and protect human rights and ASEAN through constructive engagement and interaction with all stakeholders, in February 2015, the Guidelines on the AICHR’s Relations with Civil Society Organisations was formulated. However, the instrument was not immune from a number of criticism of dialogue partners, pertaining to the contents of the document.

Thus, in order to respond and face the challenge in advancing the ASEAN human rights mechanism, in relation to AICHR, Prof. Vitit Muntarbhorn, ICJ commissioner and professor at the Chulalongkorn University, recommended that the ASEAN human rights mechanism share his idea of “Bangkok Principles,” which has five basic principles as follows:

  1. Universality
    The principle stresses the importance of the ASEAN human rights mechanism to be responsible to the standard provisions of internationally-recognised human rights.
  2. Efficacy
    The principle stresses the importance of revising the AICHR ToR to allow widening of its mandate in promoting and protecting human rights in Southeast Asia in a more concrete manner.
  3. Independence/autonomy
    Independence and autonomy of AICHR members in implementing their mandate is also given attention, as AICHR members undeniably represent their respective ASEAN Member States. The decision on the working program of the AICHR could also be set by ASEAN Member States through the ASEAN Foreign Ministers’ Meeting, as set out in Paragraph 4.14 of the AICHR ToR.
  4. Inclusivity
    This principle stresses that the AICHR membership has to be plural. It means that AICHR members appointed by the government do not have to be exclusively government officials: non-governmental figures should also be allowed to represent the country in the AICHR. This can be seen in the Indonesian representation to AICHR, Rafendi Djamin, who has an civil society organisation background. The principle of inclusivity should also include the gender balance of the AICHR, as currently the AICHR representatives are dominated by males.
  5. Accessibility
    In essence, the principle of accessibility will allow individuals or groups to communicate through dialogue and consultation directly with AICHR representatives, including access to AICHR documents and publications.

To realise the Bangkok Principles, Prof. Vitit proposed a step-by-step approach, beginning with public hearings, followed by amendment of the AICHR ToR, to provide it with a mandate for investigation and fact finding, and then followed with expanding the mandate to receive complaints from the community. Also, in the revision of the ToR of the AICHR, it should also be given the authority to perform field work/country visits, whose results can be the basis for recommendation reports that has to be implemented by ASEAN Member States.

Writter: Benhard RF Sumigar