A human rights document for Asean
Two weeks back, the Asean Intergovernmental Commission on Human Rights convened representatives of advocacy and cause-oriented groups in the Philippines and called on international law professors to talk about drawing up human rights instruments for Asean. I was called upon as a professor of international law.
Many of the precepts on human rights are now part of the corpus of customary international law, and that may just be the place to start. Asean is not going to reinvent the wheel. It is not building from the ground up. And rather than devising instruments that always entail the challenge of enforceability and enforcement, it might be the far more prudent option with what is, under the current state of international law, already obligatory on all nations. The prohibition of torture, for example, is considered by many to be “jus cogens,” one of those peremptory norms embodying fundamental values of the international community that allow of no derogation. Torture is, by no means, an idle topic in the Asean region.
One of the issues of international law is invariably that of enforcement: “superiores non recognoscentes”....States recognize no sovereignty over them. And so, really, the only enforcement scheme available is “horizontal enforcement,” the enforcement of and by peers— other sovereign states in the community of nations. This obviously limits the options available, but it also underscores the fallacy of dealing with international law as some globalized form of domestic law. I suggested, echoing several contemporary authorities of international law, that regional laws like Asean law is best enforced by domestic operators rather than regional structures and mechanisms. In consequence of this realization, what Asean can do is to formulate regional covenants that member-states of Asean would then be bound, as a matter of treaty obligation, to enact in their respective jurisdictions. The Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women provide ready examples—and amply demonstrate the “doability” of the proposal.
Human rights are universal. They apply whenever you deal with a human being, and while there can be debate over “natural law,” there will hardly be debate over the fact that “human dignity” does make certain demands. Undoubtedly, however, there are human rights issues—or clusters of issues —peculiar to the Asean region. When we recall that there are military regimes in this part of the world, then such issues as state responsibility, command responsibility in respect to enforced disappearances, detentions and even extra-judicial executions, the obligations of armed, rebel, and belligerency groups, the rights of displaced persons and the obligations of states towards refugees—all these should be addressed in their particularity by regional instruments.
Then, in view of Asean integration, human rights should not take a back seat to economic and trade integration. It makes very little sense to promote the free mobility of professionals and of skilled labor if the rights of laborers in some countries of the region cannot be guaranteed! Then, too, a system of reportage and monitoring has proven effective. It would be useful, for one, to grant the AICHR the power to receive reports and complaints even from individuals, and to be able to refer these to the State involved. Coupled with periodic reports on compliance by member-states with human rights obligations, as well as noting egregious violations and recording complaints as well as government response, some benign but no less effective version of “praising and shaming”
may yet prove to be helpful to the cause of an Asean that is exemplarily respectful of the rights of the human person.