Asian Human Rights System

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Author: Adamantia Rachovitsa

Required knowledge: sources of international law; individuals; recurring themes in human rights doctrine

Learning objectives: to understand the reasons that the Asian human rights system takes a different path comparing to other regions; to get familiarised with the notion of Asian values in human rights law; to highlight the major human rights developments in the ASEAN.

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A. Introduction[edit | edit source]

Asia is one of the regions in the world which lacks a regional system for the protection of human rights. A few remarks are warranted so as to understand why this is so. Any hastiness of the non-Asian observer in expecting of Asia what may be expected of other regions in the world may be misguided. Conceptualising Asia as a region, that is, a geographical area with sufficient historical, economic, social, religious and cultural cohesion, is a complex matter.[2] Asia consists of a great number of States: fifty-three members of the Asia-Pacific Group at the UN, out of a hundred and ninety-three UN member States, Asia is by far the most populous region in the world: 4.5 billion people out of 7.6 billion on the planet. Asia's self-identification as a continent is also subject to discussion.[3] Despite commonalities among States and peoples, the diversity within Asia is remarkable, perhaps inhibiting a systematic, coherent approach to regional development, at least in the form that this is witnessed in other regions.[4]

The absence of regional human rights instruments and institutions needs to be also understood within the broader framework of Asian States' engagement with international law. Asian States are the least likely to accept international obligations. They tend to be mistrustful of delegating sovereignty, either on an international or regional basis. This is due to the diversity in the continent and the influences of the great powers (China, India and Japan). Historical and cultural reasons[5] as well as the experience(s) of colonialism should not be understated either (e.g., India and colonialism, China and unequal treaties,[6] the trials that followed the Second World War in Japan).[7] These experiences have cemented the perception that international law is primarily an instrument of political power to be used selectively.[8]

Against this background, regional human rights law in Asia is considerably less developed and amorphous compared to other regions. The deepening of human rights law is more likely to occur at the sub-regional level in smaller and more coherent groupings of States. Notably, the recent growth of national human rights institutions in the region (e.g., the Human Rights Commission in Malaysia, formed in 2000; or the National Human Rights Commission in Thailand, formed in 2001), in accordance with the Principles relating to the Status of National Institutions,[9] is another significant piece of the puzzle of the advancement and implementation of human rights.[10] At the same time, Asian States have existing human rights obligations under customary international law and under the UN human rights framework (the UN Periodic Review and obligations stemming from the ratification of UN human rights treaties).[11]

This sub-chapter, first, briefly explains the concept and role of Asian values in human rights law and discourse. The discussion subsequently focuses on the sub-regional level for protecting human rights and, more specifically, the bodies and human rights instruments created by the Association of Southeast Nations.

B. The "Asian Values" Debate[edit | edit source]

An infrequent occasion when Asian States formed and presented a united front on their position on human rights was their contribution to the 1993 World Conference on Human Rights. They drafted and submitted the Bangkok Declaration,[12] which embodies the so-called "Asian values". Asian values is a term coined by Asian officials to contest the Western conceptualisation of civil and political freedoms.[13] A major claim raised in this regard is that communitarian values and duties of the individual towards society should be placed on an equal footing to (or even take precedence over) individual freedoms. Paragraph 8 of the Bangkok Declaration reads:

While human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.

The provision asserts the need for a certain deference to national and regional particularities. It suggests that international lawmaking or the interpretation and application of human rights provides room for deviations from universal human rights norms. The compromise that made its way into the final text of the Vienna Declaration and Programme of Action, adopted by consensus by the World Conference on Human Rights and subsequently by UNGA Res 48/121, reads:

While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be born in mind, it is the duty of States regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (para 5).[14]

The 1998 Asian Charter on Human Rights,[15] which is a peoples' charter drafted by civil society in response to the Bangkok Declaration, holds that the idea of "Asian values" legitimises the 'deprivation of the rights and freedoms of [...] citizens, which are denounced as foreign ideas inappropriate to the religious and cultural traditions of Asia'.[16] A distinction is also drawn between Asian values as a 'thin disguise for [...] authoritarianism',[17] on the one hand, and the relevance of bearing in mind the social, economic and cultural contexts in which rights are to be enjoyed, on the other[18]. In other words, it is not debated whether social, economic and cultural contexts have a bearing on the enjoyment of rights (they do) but rather the specific weight of this bearing on the protective scope of rights as well as this weight's potentially disguised abuse for political purposes.

C. Developments in the Association of Southeast Asian Nations (ASEAN)[edit | edit source]

While the number of human rights developments have taken place (e.g., South Asian Association for Regional Cooperation)[19] or are likely to take place (e.g., Pacific Islands Forum) in specific sub-regional corners of Asia, the Association of Southeast Asian Nations (ASEAN) stands out for its progress. ASEAN is a political and economic union created in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand, which were subsequently joined by Brunei, Vietnam, Laos, Myanmar and Cambodia. In 2007, ASEAN member States decided to deepen their political, security-related, economic and socio-cultural cooperation by creating the ASEAN Charter. Respect for sovereignty, non-interference in domestic affairs and the consensus approach remain the foundational principles of States' engagement.[20] In a surprising move, the protection of human rights and social justice features prominently in the Purposes and Principles of the ASEAN Charter. It was additionally agreed that a human rights body would be established, which eventually became the ASEAN Intergovernmental Commission on Human Rights (AICHR). The decision to create a human rights body was politically controversial: member States were divided into three camps: Indonesia and Thailand were favourable; Cambodia, Laos, Myanmar and Vietnam were opposed; and Brunei, Malaysia, the Philippines and Singapore kept a moderate position.

I. The ASEAN Intergovernmental Commission on Human Rights[edit | edit source]

The AICHR, established in 2009, is an intergovernmental, consultative body. Its decision-making is based on consultation and consensus, following a non-confrontational approach. The AICHR's mandate is to promote and protect human rights in the regional context, bearing in mind different cultural and religious backgrounds. Its tasks are promotional of human rights with no remit for receiving individual complaints or conducting investigations. According to its Terms of Reference,[21] the AICHR is tasked with:

  • developing strategies and capacity-building;
  • consulting, and engaging in dialogue with other bodies and institutions, including civil society; and
  • enhancing public awareness of human rights.

The AICHR has been criticised for lack of engagement with civil society organisations and the general public.[22] Looking to the future, pursuant to its existing mandate the AICHR enjoys leeway to engage more thoroughly with the development of human rights norms and standards in ASEAN.[23]

II. The ASEAN Human Rights Declaration[edit | edit source]

Since the 1993 Bangkok Declaration, States in Asian and ASEAN fora have made many unsuccessful attempts to form a consensus on drafting a human rights instrument. These attempts came to fruition in 2012, in the context of ASEAN, with the adoption of the ASEAN Human Rights Declaration.[24] The drafting of the Declaration is an achievement of the AICHR. The Declaration - a non-binding instrument - provides for both civil and political rights (articles 10-25) and economic, social and cultural rights (articles 26-34), plus the right to development (articles 35-37) and the right to peace (article 38). Following in the footsteps of the Bangkok Declaration, the ASEAN Human Rights Declaration stresses that 'the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds' (article 7). The Declaration also emphasises that the enjoyment of human rights must be balanced with the performance of corresponding duties towards other individual and the community (article 6). The rights are drafted almost telegraphically as to their protective scope, and the limitations on human rights provided are broad (article 8). This may be understandable, since declaration are not commonly drafted in the same detail as treaties. Some of the foregoing characteristics are reminiscent of the features of the African Charter on Human and Peoples' Rights.[25] Notwithstanding the non-binding nature of the ASEAN Human Rights Declaration, different facets of its potential impact should not be disregarded.[26]

Advanced: Potential normative, legal and political impact of the ASEAN Human Rights Declaration

Notwithstanding the absence of international obligations stemming from a declaration, the potential impact of non-binding instruments (soft-law) should not be dismissed altogether. Other well-known examples of non-binding instruments (e.g., the Helsinki Act, the Universal Declaration on Human Rights) have developed a significant normative impact. In this way, the ASEAN Human Rights Declaration, first, transforms human rights from a solely domestic concern into an issue to be addressed in interstate relations; second, may form the basis for a treaty in the future; third, can be referenced and used before/by national bodies and in international practice; and fourth, legitimises human rights language for political debate at the domestic level.


III. Other ASEAN Human Rights Bodies and Instruments[edit | edit source]

A few other developments in the ASEAN should be noted.[27] The ASEAN Commission on the Promotion and Protection of the Rights of Women and Children, formally established in 2010, is a consultative, intergovernmental human rights body. It is tasked with promoting and protecting the human rights of women and children upholding rights contained in the Convention on the Elimination of Violence Against Women[28] and the Convention on the Rights of the Child[29] (all ASEAN member States have ratified both treaties). Its functions are very similar to those of the AICHR and include:

  • promoting the implementation of international and ASEAN instruments on the rights of women and children;
  • advocating on behalf of women and children;
  • promoting public awareness and education about the rights of women and children in ASEAN;
  • assisting, upon request by ASEAN Member States, in fulfilling their international human rights reporting obligations on women and child rights;
  • encouraging ASEAN Member States to collect and analyse sex disaggregated data, and undertake periodic reviews of national legislation, policies, and practices related to the rights of women and children; and
  • facilitating the sharing of experiences and good practices among ASEAN Member States.[30]

Like the AICHR, the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children does not have a specific mandate to receive and investigate (individual) complaints of human rights violations. Decision-making in the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children is based on consultation and consensus (see article 20 of the ASEAN Charter) which means that the Commission cannot act without the full agreement of all representatives.[31]

Finally, in 2007, representatives of the ASEAN member States adopted the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers.[32] Soon thereafter the same year, the ASEAN Committee in the Implementation of the Declaration on the Protection and Promotion of the Rights of Migrant Workers was created, mandated to ensure the implementation of commitments made under the previously-mentioned Declaration as well as to develop an ASEAN instrument on the protection and promotion of the rights of migrant workers.[33] In 2017, following ten years of negotiations, ASEAN States did adopt the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers, a treaty that sets out standards for the treatment of migrant workers in source and destination countries.

Further Readings[edit | edit source]

  • A Anghie, 'Identifying Regions in the History of International Law', in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) 1058
  • T Hsien-Li, 'Adaptive Protection of Human Rights: Stealth Institutionalisation of Scrutiny Functions in ASEAN’s Limited Regime' (2022) 22 Human Rights Law Review 1
  • Y Wahyuningrum, 'A Decade of Institutionalizing Human Rights in ASEAN: Progress and Challenges' (2021) 21 Journal of Human Rights 158

Further Resources[edit | edit source]

  • The ASEAN Intergovernmental Commission on Human Rights publishes Annual Reports, Thematic Studies and Annual Activity Reports.
  • YouTube video, Quick facts about the protection of human rights in ASEAN and by the ASEAN Intergovernmental Commission on Human Rights.

Conclusion[edit | edit source]

  • Asia is one of the regions in the world which lacks a regional, coherent system for the protection of human rights. This is due to a variety of reasons, including Asia’s diversity, influences of the great powers and the experience(s) of colonialism as well as historical and cultural circumstances.
  • Human rights law in Asia is likely to grow on the domestic level, through national human rights institutions, and sub-regionally.
  • The Bangkok Declaration and the ASEAN Human Rights Declaration bring to the fore major claims contesting the Western conceptualisation of civil and political freedoms: communitarian values, the role of duties of the individual towards society vis-à-vis individual freedoms and deference to national and regional particularities. The precise normative scope and content of these claims remain unclear and, in certain instances, are conducive to political abuse.
  • The standing human rights bodies are set up only on a sub-regional basis, including the ASEAN Intergovernmental Commission on Human Rights, the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children and the ASEAN Committee in the Implementation of the Declaration on the Protection and Promotion of the Rights of Migrant Worker, and they have a consultative, intergovernmental function.

Table of Contents[edit source]

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. ↑ The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. ↑ A Anghie, 'Identifying Regions in the History of International Law', in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) 1058.
  3. ↑ T Ruskola, 'Where Is Asia? When Is Asia? Theorizing Comparative Law and International Law' (2011) 44 University of California at Davis Law Review 879, 882; S Chesterman, 'Asia's Ambivalence about International Law and Institutions: Past, Present and Futures' (2016) 27 European Journal of International Law 945, 965.
  4. ↑ For discussion of the interplay between diversity and coherence and the notion of overlapping geographies in the context of the development of the Arab and Islamic Human Rights System, see Adamantia Rachovitsa, § 21.2.5 in this textbook. Cf also the development of the European and Inter-American systems on human rights; see, Jens Theilen, § 21.2.3 and Verena Kahl, Walter Arévalo-Ramírez, Andres Rousset-Siri, § 21.2.4 respectively in this textbook.
  5. ↑ 'Culture', in S Marks and A Clapham, International Human Rights Lexicon (Oxford University Press, 2005) 33, 39.
  6. ↑ For the concept of unequal treaties and their function in the context of colonialism, see, M Craven, 'What Happened to Unequal Treaties? The Continuities of Informal Empire' (2005) 74 Nordic Journal of International Law 335-382; M Chan, 'Rule of Law and China's Unequal Treaties: Conceptions of the Rule of Law and Its Role in Chinese International Law and Diplomatic Relations in the Early Twentieth Century' (2018) 25 Penn History Review 9.
  7. ↑ S Chesterman, 'Asia's Ambivalence about International Law and Institutions: Past, Present and Futures' (2016) 27 European Journal of International Law 945, 962-965. For discussion on the Third World approaches in international law (TWAIL), see Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan, § 4.2 in this textbook. For critique on human rights and discussion of human rights as a colonial construction see Thamil Venthan Ananthavinayagan and Jens Theilen, § 21.3 in this textbook.
  8. ↑ S Chesterman, 'Asia's Ambivalence about International Law and Institutions: Past, Present and Futures' (2016) 27 European Journal of International Law 945, 962-965.
  9. ↑ Principles relating to the Status of National Institutions (The Paris Principles), adopted by UNGA Res 48/134, UN Doc A/RES/48/134, 4 March 1994.
  10. ↑ A Durbach, C Renshaw and A Byrnes, 'A Tongue but No Teeth: The Emergence of a Regional Human Rights Mechanism in the Asian Pacific Region' (2009) 31 Sydney Law Review 211, 221; J Gomez and R Ramcharan (eds), National Human Rights Institutions in Southeast Asia - Selected Case Studies (Palgrave Macmillan, 2000).
  11. ↑ For the ratification record of the main UN human rights treaties by Asian States, see Office of the United Nations High Commissioner for Human Rights, OHCHR Management Plan 2022-2023, Asia - Pacific, 154-155.
  12. ↑ Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok Declaration), Bangkok, 7 April 1993, UN Doc UNGA A/CONF.157/ASRM/8A/CONF.157/PC/59.
  13. ↑ For critique on human rights and discussion of human rights as a colonial construction see Thamil Venthan Ananthavinayagan and Jens Theilen, § 21.3 in this textbook.
  14. ↑ UNGA Res 48/121, UN Doc A/RES/48/121, 14 February 1994.
  15. ↑ Asian Charter on Human Rights – A Peoples’ Charter, Kwangju - South Korea, 17 May 1998.
  16. ↑ Article 1(5).
  17. ↑ Article 1(5).
  18. ↑ Article 2(3).
  19. ↑ Human rights treaties adopted under the auspices of the South Asian Association for Regional Cooperation are: the Social Charter, (adopted 4 January 2004); the Convention on Regional Arrangements for the Promotion of the Child Welfare in South Asia (adopted 5 January 2002); and the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (adopted 5 January 2022).
  20. ↑ V Muntarbhorn, 'The South East Asian System for Human Rights Protection', in S Sheeran and N Rodley (eds) Routledge Handbook of International Human Rights Law (Routledge, 2013) 467.
  21. ↑ See, articles 1-4, 2009 Terms of Reference, adopted pursuant to Article 14 of the ASEAN Charter.
  22. ↑ Y Wahyuningrum, 'A Decade of Institutionalizing Human Rights in ASEAN: Progress and Challenges' (2021) 20 Journal of Human Rights 158.
  23. ↑ See article 2(5), Terms of Reference.
  24. ↑ Association of Southeast Asian Nations, ASEAN Human Rights Declaration, adopted by the Phnom-Penh Statement, 18 November 2012.
  25. ↑ On the African system of human rights and the African Charter on Human and Peoples' Rights, see Adamantia Rachovitsa, § 21.2.2 in this textbook.
  26. ↑ A J Langlois, 'Human Rights in Southeast Asia: ASEAN's Rights Regime After Its First Decade' (2021) 20 Journal of Human Rights 151.
  27. ↑ For discussion on how the ASEAN human rights system informally evolves, see T Hsien-Li, 'Adaptive Protection of Human Rights: Stealth Institutionalisation of Scrutiny Functions in ASEAN’s Limited Regime' (2022) 22 Human Rights Law Review 1.
  28. ↑ Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
  29. ↑ Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
  30. ↑ ASEAN Commission on the Promotion and Protection of the Rights of Women and Children, article 5, Terms of Reference, ASEAN Secretariat 2010.
  31. ↑ Ibid, article 3.6.
  32. ↑ ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, Cebu - Philippines, 13 January 2007.
  33. ↑ Statement of the Establishment of the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, Manila - Philippines, 31 July 2007.
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