Need
for a human rights mechanism for the Asia-Pacific region
Human
Rights Features
The
Asia-Pacific region currently exists as the only continent without a
regional human rights mechanism to adjudicate over the protection of
human rights by member states. All efforts taken to establish such a
mechanism, most notably perhaps through the annual workshops arranged
by the UN Office of the High Commissioner for Human Rights, have been
hampered by traditionalist concepts of state sovereignty emphasising
the schism between "western' and "non-western" values.
Ordinarily, these regional co-operation workshops follow the pattern
adopted by the 1998 Tehran 'Framework for Regional Technical Cooperation
in the Asian and Pacific Region' by discussing national capacity building,
human rights education, the role of national institutions, and economic,
social and cultural rights. Whilst these are commendable issues, the
framework, intentionally or otherwise, has driven a trench between the
above issues and addressing the question of establishing a permanent
regional mechanism for human rights. Beyond the guise of a "step-by-step",
"building blocks" approach, these developments have heightened
the suspicion that the UN annual workshops are instead a means for states
to avoid establishing any such permanent arrangement under the pretext
of appearing committed to the ideal.
The latest in the
series of workshops ended Qatar on 4 March 2004. The conclusions adopted
by the state parties at the twelfth workshop on Regional Cooperation
for the Promotion and Protection of Human Rights are brilliant in their
sophistry and attempt to obfuscate real issues.
The fact that 20
years of round-table discussions have produced no tangible results in
this regard signifies that any expectations of a regional mechanism
comparable to that of the European or Inter-American Courts on Human
Rights are unrealistic. Attempts at drafting non-official Asian Charters
for Human Rights have invariably failed, being inconsistent with the
obligations of international customary or conventional law, or hijacked
by self-appointed enforcing authorities such as the Association of Asian
Parliaments for Peace. Accepting a "building blocks" approach
as the agreed means towards progress, and "mindful of the vastness
of, and diversities within, the Asia-Pacific region", the Asia
Pacific Human Rights Network (APHRN) reiterates that attempts to set
up a regional human rights arrangement must be shifted towards those
institutions already functioning in the Asia Pacific region and capable
of moving incrementally towards such an undertaking. One possibility
is through enhancing the work of the Asia Pacific Forum of National
Human Rights Institutions (APF), and particularly, its Advisory Council
of Jurists (ACJ).
The APF constitutes
the most cohesive regional human rights body in the Asia-Pacific region.
Under the limited but useful guidance of the Paris Principles, the APF
intends to co-ordinate the functioning of national human rights institutions
in accordance with international best practice. Unlike in Europe or
the Americas, which have adopted regional human rights conventions and
courts that arguably surpass the protections afforded by the UN international
bill of rights, national human rights institutions still represent the
best means to monitor, investigate, and seek redress for human rights
abuses in Asia. As the organisation charged with the task of ensuring
that these national human rights institutions meet international standards
of independence and competency, the APF is the best-positioned intermediary
in the region between individual state policy and/or behaviour and their
respective monitoring bodies.
In order for the
APF to operate in the manner of a regional human rights mechanism, a
strengthening of its mandate and operating powers are required. The
mandates of national institutions in the Asia Pacific region have largely
been determined by the political context in which they are created,
and thus an imperative must firstly be placed on establishing a centralised
and uniform policy binding on all national institutions, plus a system
of assessment for effective implementation of the Paris Principles.
Whilst these principles only exist as a 'lowest common-denominator',
their provisions are yet rarely adhered to by respective national institutions.
This problem is compounded by the fact that the APF permits such concessions
in its rules of membership. This allows for less than perfect institutions
to gain membership. This also damages the legitimacy of the APF as a
forum concerned with independence, transparency and accountability,
all fundamental prerequisites of a regional human rights body, and needs
to be quickly rectified.
Most importantly
the APF must take initiatives beyond the Paris Principles to stress
the role of the quasi-judicial capacity of national institutions. As
mere commentators on human rights, national institutions capabilities
are severely weakened, but as investigative bodies they serve as a vital
connection to any regional sphere. To date, Asia-Pacific national institutions
have been deficient in recognising their role in the international arena.
A broader mandate adopted by the APF, which would not only specify national
institutions' spheres of competence and jurisdiction but also encourage
them to intervene in relevant court cases, would empower the APF to
address human rights violations as an independent regional adjudicator.
The ACJ was established
following its endorsement at the Third Annual Meeting of the APF held
in Jakarta, Indonesia, in September 1998. It acts as "a specialist
advisory body to provide, on request, jurisprudential guidance to the
Forum and its member institutions." Its jurisdiction is to "provide
comment, opinion and advice on the interpretation and application of
relevant international human rights standards, upon request, having
regard to settled principles of international law and the treaty obligations
of the concerned states." Requests may be taken from national institutions
that are members of the Forum, provided the subject relates only to
their national jurisdiction, yet it has no jurisdiction to receive requests
from individuals, organisations, domestic judiciaries or governments.
APHRN proposes that
the Terms of Reference of the Council be extended to strengthen its
judicial capacity, for the purpose of establishing the ACJ as an Asian-Pacific
referral body with quasi-judicial powers akin to a UN human rights treaty
monitoring body, with concomitant powers of regional interpretation
or consultation. The Asia-Pacific region at present lacks any higher
means of appeal of legal decision-making beyond the highest national
courts, thus protecting national sovereignty from the scrutiny of international
law.
A recent case in
hand is that of the People's Union for Civil Liberties v. Union of India,
which challenged the legislative competence of India's Prevention of
Terrorism Act. The Supreme Court upheld the constitutionality of POTA
in every instance, thus closing the door on the subject in India. However,
NGOs remain united in their condemnation of the Act as an insidious
and retrogressive attempt to rid India of all fundamental legal safeguards
pertaining to due process and fair trial. The decision by the Supreme
Court has likewise been dismissed as a "concession" to a "panic-stricken
state unable to handle terrorism through the normal legal process."
In this instance,
no recourse may be taken to any higher appellate court in Asia to challenge
the Supreme Courts decision from the standpoint of India's obligations
under international customary and treaty law. It is in cases such as
these that national institutions could immediately refer the issue to
the Advisory Council. Whilst it is unrealistic in the current political
climate to expect Asian states to cede sovereignty to a body whose judgements
would be legally binding, a referral body which may issue authoritative
observations and recommendations would offer a firmer regional means
of human rights protection than any that currently exist. Also, an appeal
of a Supreme Court judgement on the basis of international obligations
offers an alternate means of redress, as opposed to questioning such
a judgement on the basis of former national jurisprudence.
Requests to the
ACJ may also be made at the unanimous decision of the APF on any issues
of common concern, and it is this capacity that the ACJ have been most
productive thus far. APHRN is of the view that collective responses
present the most viable solutions to regional and global problems, and
that the recommendations of the ACJ should be respected and acted upon
by all States concerned. The matter of cross-border adjudication is
intrinsic to the success of a regional arrangement for the Asia-Pacific
region.
To date, the ACJ
has published detailed reports on trafficking, child pornography, use
of the death penalty in Asia, and the rule of law and terrorism. To
take one example, the report on trafficking explains the significance
of the UN Trafficking Protocol 2000, and urges states to ratify in order
to "prevent and combat trafficking, to assist the victims of trafficking
and to promote cooperation among the party States to achieve these objectives."
It also outlines the sources and methods of international law and other
recommended principles. The January 2004 update of the report on the
rule of law and terrorism presents a critical cross-examination of the
inconsistency of Asian anti-terrorist legislation and its impact on
human rights, challenged from the perspective of international obligations
and safeguards. Unsurprisingly, few Asian countries can be congratulated
on their present performances.
These are notable
contributions aimed at establishing a uniform regional approach to human
rights concerns, and are commended by APHRN as such. However, a strengthening
of the judicial capacity of the ACJ, as recommended above, would add
considerable persuasion to their recommendations. Otherwise, as with
all the examples given in this report, the Asia-Pacific region will
continue to exist as the poor cousin of international community in the
protection of universal human rights.
Human
Rights Features, an initiative of SAHRDC, Delhi, is an independent,
objective and analytical attempt to look comprehensively at issues behind
the headlines from a human rights perspective
