Background: The Survey, Methods and Responses
At the 13th Summit of the Association for Southeast Asian Nations (ASEAN) in Singapore in November 2007, ASEAN leaders agreed to adopt the ASEAN Charter, Article 14 of which mandates the creation of an ASEAN human rights body. Subsequently, in July 2009, the ASEAN Ministerial Meeting adopted the Terms of Reference (TOR) for the ASEAN Inter-Governmental Commission on Human Rights (AICHR). (1) Member states appointed representatives to the body and officially launched it at the 15th ASEAN Summit in October 2009. The fact that ASEAN now has its own human rights mechanism more than forty years after its establishment represents an important step forward in terms of regional human rights cooperation in Southeast Asia. However, whether this mechanism will remain a fledging human rights body or become a strong, independent, and effective human rights mechanism is still open to question.
Nations in the region continue to face various human rights issues. Their accession to international human rights treaties is weak and uneven. Under ASEAN, collaboration and cooperation to protect and promote regional human rights remains limited. The "ASEAN Way", including the cardinal principle of non-intervention, is still strong as most recently reflected in the AICHR's terms of reference. The AICHR is envisioned to serve as a consultative intergovernmental body. While its focus on the promotional aspect of human rights is important, especially in terms of raising awareness at the official and grassroots levels, it has no power to consider human rights cases or conduct investigative country visits, and its representatives shall be accountable to the governments that appoint them. The AICHR's decisions shall be made by consensus and states are not obligated to implement them.
Given the unlikelihood that the AICHR will be effective in responding to major human rights problems in the region, it is worth exploring alternative ways to strengthen human rights cooperation in Southeast Asia. As experience from the Inter-American, European and African human rights systems indicates, multiple human rights mechanisms may be developed simultaneously to address different needs that suit the different conditions of countries in the region. Whereas the idea of a strong, independent and effective human rights mechanism for all ASEAN member states is not feasible, it may be possible to gradually establish such a mechanism for a selected number of Southeast Asian countries. This mechanism may take the form of a judicial organ outside ASEAN, operating independently and in parallel with, but not in opposition to the AICHR, to investigate human rights cases and address various legal issues relating to regional human rights protection. It would be more of a protective mechanism than a promotional one. It may be composed of independent experts who are able to do their job without political interference and its decisions may have binding force upon all member states. In fact, a blueprint for this proposed mechanism, laying out basic legal and institutional features, has already been drawn up by the author of this article for a prospective Southeast Asian Court of Human Rights (SEACHR). (2)
This survey report is based on a questionnaire completed by thirty-six individuals and representatives of organizations in Southeast Asia and elsewhere who work in the field of human rights and closely monitor regional human rights issues. The survey also draws on six interviews conducted in April and May 2009 with various interlocutors in the region. In total, it reflects the contributions of forty-two participants. The aim of the survey was two fold. The first was to explore the views of different actors regarding the AICHR, whether it can be an independent and effective human rights mechanism and to what extent its creation meets their expectations. The second was to examine the case for a selective approach to establishing a regional human rights court for a selected number of Southeast Asian countries. …