The ASEAN Intergovernmental Commission on Human Rights (AICHR) began operating in October 2009, under the auspices of the Association of Southeast Asian Nations (ASEAN), an intergovernmental organization with ten Member States: Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. The AICHR is composed of ten State representatives, one for each ASEAN Member State. Since its creation, the AICHR has held a number of meetings, workshops and conferences on human rights topics and on its own mandate. Its functions and procedures are outlined in the Terms of Reference and Guidelines on the Operations of the AICHR.
In 2008, ten individuals, one from each Member State, were appointed to a High Level Panel charged with developing the AICHR’s guiding documents. The High Level Panel completed the ACIHR’s Terms of Reference, which lay out its general duties and structure, in 2009.
Following their first meeting in March-April 2010, the ten representatives of the AICHR undertook the development of rules of procedure and a five-year work plan. The AICHR’s next substantive project was the preparation and adoption of a regional human rights declaration.
ASEAN Human Rights Declaration
On November 18, 2012, the ASEAN adopted the ASEAN Human Rights Declaration, which is described as “a roadmap for the regional human rights development.” [ASEAN] Earlier drafts of the Declaration were criticized by civil society as “fall[ing] short of international human rights law and standards” including in the area of gender identity and sexual orientation. [IGLHRC] Upon the Declaration’s adoption, widespread criticism – including from the UN High Commissioner for Human Rights – remained focused on the Declaration’s wording.
Civil society has specifically criticized Articles 6 through 8 of the Declaration for including language that limited the protection of certain fundamental rights. Article 6 states:
The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives.
Article 7 requires that rights be considered “in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.” Finally, Article 8 provided that the exercise of fundamental rights could be limited for the purpose of safeguarding public morals, thereby including a limitation rights groups said had been used in the past to justify discrimination and the deprivation of human rights on the basis of social, cultural, and religious grounds. See, e.g., APWLD, Responding to the Draft ASEAN Human Rights Declaration: What Southeast Asian Women Want to See, 12 Sept. 2012.
Recommendations made by civil society to strengthen the protections provided in the Declaration by removing such language and by explicitly recognizing the rights of specific marginalized groups were ignored and the Draft Declaration was adopted without any significant substantive changes having been made. Changes between the adopted Declaration and draft version include an additional paragraph in the preamble mentioning other ASEAN human rights initiatives, namely the Declaration of the Advancement of Women in the ASEAN Region and the Declaration on the Elimination of Violence against Women in the ASEAN Region, and an additional provision in Article 9, which reads:
The process of such realization [of the rights contained in the Declaration] shall take into account peoples’ participation, inclusivity and the need for accountability.
Article 25(2) was also modified to recognize to vote of all “citizens,” as opposed to all “persons.”
Participation of Civil Society
Throughout the Declaration drafting process, civil society had complained of a lack of transparency and engagement on the part of the AICHR. The AICHR initially refused to publish a copy of the Draft Declaration on the grounds that it was still a work in progress. See, e.g., FIDH, FIDH Submission to the European Parliament Sub-committee on Human Rights (DROI) on AICHR, 17 Sept. 2012. Prior to the draft’s eventual publication, the AICHR held only one, one-day consultation session in which participation was limited to four civil society organizations from each Member State. Id. Following publication of the draft, the AICHR held another consultation session but once again severely restricted access to the session for organizations wishing to participate. Id.
Civil society’s complaints that they were effectively shut out of the Declaration drafting process reflect longstanding criticisms of the AICHR as a whole. Article 6.7 of the Terms of Reference of the AICHR requires the Commission to keep the public periodically informed of its work and activities. However, the AICHR has consistently denied the public access to its documents, and deliberations and formal meetings are not open to the public, NGOs, or National Human Rights Institutions. See, e.g., FIDH Submission to the European Parliament Sub-committee on Human Rights on AICHR. The AICHR’s Guidelines do not obligate the Commission to make public its reports, but rather states that it “may agree to keep the public informed” and “may engage in dialogue and consultation with entities associated with ASEAN, including accredited Civil Society Organisations and other stakeholders.”
Leading up to and subsequent to the AICHR’s creation, the Working Group for an ASEAN Human Rights Mechanism – a coalition of NGOs, government representatives and other stakeholders – has promoted regional dialogue and action on human rights protection and engaged in consultations with the AICHR. Although the Working Group had proposed a draft agreement which envisioned an individual complaints procedure, as well as promotion and protection duties, the final Terms of Reference limit the Commission’s role to promotion and protection, as a consultative body of ASEAN. Accordingly, the new ASEAN body cannot be considered a fourth regional human rights tribunal, but rather a first step towards regional, inter-governmental human rights monitoring in Asia.
The Commission itself has also been criticized as politically influenced and unlikely to possess the will or means necessary to change poor human rights practices in the region. For additional detail, see the report, A Commission Shrouded in Secrecy, published in April, 2012 by the Asian Forum for Human Rights and Development. For more on the history of the AICHR, see Hsien-Li Tan, The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human Rights in Southeast Asia (2011); and Termsak Chalermpalanupap, Protecting and Promoting Human Rights in ASEAN.