[asia-apec 847] APPA HUMAN RIGHTs FORUM - Asia Needs Regional Human Rights Mechanisms

[Sinapan Samydorai]

ASIAN HUMAN RIGHTS COMMISSION
Unit D, 7th Floor, Mongkok Commercial Centre, 16 - 16B Argyle Street,
Kowloon, HONGKONG
Tel: +(852) - 2698-6339     Fax: +(852) - 2698-6367   
E-mail:  AHRC Programme Coordinator <ua at hk.super.net>
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Dear Friends,
Below is an article for delegates to the HUMAN RIGHTs FORUM (1998 Asia-Pacific
People's Assembly on APEC) on the human rights situation in ASEAN countries.
This
paper is forward to you for your preparation and reflections. Please forward
to us 
your country situationers [Human Rights]. 

Sincerely Yours,

Sinapan Samydorai
Programme Coordinator
Asian Human Rights Commission
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Multicultural Asia Needs Regional Human Rights Mechanisms 

by Sunil Coorey

(Ed. note: Sunil Coorey is the president of Vigil Lanka Movement. His
following views was presented at the international conference to declare the
ASIAN HUMAN RIGHTS CHARTER in Kwangju, south Korea, on 14-17 May 1998.)

Within the institutional framework created by the United Nations Charter in
1945, the Economic and Social Council (ECOSOC) has been established to
serve, subject to the ultimate authority of the General Assembly, as the
principal organ of the United Nations concerned with human rights. In 1946
the ECOSOC established the Commission on Human Rights. The Commission
frequently employs working groups and special rapporteurs to carry out its
work of promoting and monitoring human rights throughout the world.

The Universal Declaration of Human Rights was adopted by the General
Assembly of the United Nations in 1948. The International Covenant on Civil
and Political Rights (ICCPR), together with the two Optional Protocols, and
the International Covenant on Economic, Social and Cultural Rights, which
came into force in 1976, are also intended to be of universal application by
ratification by States in all parts of the world. These documents constitute
what is called the "International Bill of Human Rights."

The ICCPR has an 18-member Human Rights Committee which is concerned with
reports submitted by States that are parties to the Covenant, regarding
measures taken to give effect to the rights enumerated in the Covenant. The
Committee has jurisdiction to hear complaints between States under Article
41 of the Covenant. The Committee also has jurisdiction regarding complaints
by individuals against States which are parties to the (first) Optional
Protocol.

Apart from the International Bill of Human Rights, there are numerous other
international declarations which have declared international human rights,
such as the Declaration on the Right to Development adopted by the U.N.
General Assembly in 1986 and the Declarations of Tunis, San Jose and Bangkok
made at three regional conferences held in those cities in preparation for
the World Conference on Human Rights held in Vienna in 1993. At the
conclusion of the World Conference, the Vienna Declaration and Programme of
Action was adopted unanimously by 171 governments, representing 99 percent
of the world's population.

Acting on one of the recommendations of the World Conference on Human Rights
in Vienna, the U.N. General Assembly in 1993 established the High
Commissioner for Human Rights for the promotion and protection of all human
rights.

Thus, it is clear today that there is no real dearth of international
standards regarding human rights that are of universal application. There
are numerous agencies within the U.N. system for the protection, promotion
and propagation of human rights. The Commission on Human Rights and the
Human Rights Committee under the ICCPR are engaged in the monitoring and
enforcement of internationally recognised human rights. For the last 40
years the United Nations Programme of Advisory Services in the Field of
Human Rights has been in operation, providing assistance in the field of
human rights to governments which request same, advisory services of
experts, fellowships and scholarships and seminars.
Why Need Regional Standards and Mechanisms

In the context of the above, what, one may ask, is the need to set up
regional human rights standards and regional mechanisms for their promotion,
monitoring and enforcement? The answer, according to one jurist, Dr. Nihal
Jayawickrema of Hong Kong, is that "it is easier for a small group of States
which share a common political, legal, cultural or spiritual heritage to
agree upon institutions for the more effective scrutiny of their own
performance than it is for the mixed and varied groups that together form
the enormous international community. And within those regional institutions
it is possible for each of the member States to play a relatively more
significant role than they possibly can on the world stage."  For example,
in the absence of an institution in the nature of a regional court of human
rights, an individual who is subject to the jurisdiction of a State, which
is a party to the (first) Optional Protocol to the ICCPR, must complain to
the Human Rights Committee that sits in Geneva. Further, the monitoring,
protection and promotion of human rights by regional mechanisms could be
expected to be more prompt and effective than by mechanisms having to act
worldwide.

More recently the international community has unequivocally called for the
setting up of regional bodies for human rights. Article 37 of Part 1 of the
Vienna Declaration declares: "Regional arrangements play a fundamental role
in promoting and protecting human rights. They should reinforce universal
human rights standards, as contained in international human rights
instruments and their protection. The World Conference on Human Rights
endorses efforts under way to strengthen these arrangements and to increase
their effectiveness, while at the same time stressing the importance of
cooperation with the United Nations human rights activities. The World
Conference on Human Rights reiterates the need to consider the possibility
of establishing regional and sub-regional arrangements for the promotion and
protection of human rights where they do not already exist."     

During the 50 years that elapsed since the adoption of the Universal
Declaration of Human Rights, human rights standards have been set at
regional levels in Europe, America and Africa. Several mechanisms operating
outside the U.N. system have also been set up in those three regions for the
protection and promotion of human rights and for the enforcement of human
rights. Those mechanisms are voluntarily sponsored mainly by the States in
each such region.

Regimes in Europe

In 1950 members of the Council of Europe signed the European Convention on
Human Rights. The Convention, which came into force in 1953, contains a
comprehensive statement of the civil and political rights believed to be
common to the peoples of Europe. Although originally the Convention was the
creation of the States of Western Europe, since the end of the Cold War many
of the former Socialist European States have become parties to the Convention.

The European Convention is similar in scope to the ICCPR, but its provisions
relating to the enforcement are considerably more effective than that in the
ICCPR and the (first) Optional Protocol.

The application of the European Convention is overseen by three bodies.
First, the Commission on Human Rights, which deals with the great majority
of alleged violations of the Convention, is comprised of a number of
independent individuals in equal number to the number of parties to the
Convention. Secondly, the Committee of Ministers, which consists formally of
the foreign ministers of the members of the Council of Europe, although in
practice its powers are exercised by appointed deputies. Thirdly, the
European Court of Human Rights, situated in Strasbourg, France, comprises
judges equal in number to the members of the Council of Europe and is the
judicial arm of the Convention. The decisions of the Court are binding in
international law on the parties to the Convention according to the terms of
the Convention. A decision could include a human right provided for by the
Convention. All decisions of the Court are reported in the European Human
Rights Reports and constitute an important source of human rights law.

American Arrangements

In 1948 the Ninth Conference of American States adopted the American
Declaration of the Rights and Duties of Man. Although at that stage it
contained no enforcement provisions, it acted as an impetus to human rights
law in the Western hemisphere.

In 1960 the Inter-American Commission of Human Rights was established. In
1969 the Organisation of American States (OAS) adopted the American
Convention on Human Rights, which included provisions for the Inter-American
Court of Human Rights. The American Convention protects rights broadly
similar to those protected under the European Convention of 1950. On signing
the American Convention on Human Rights, States accept the right of
individual complaint to the Inter-American Commission of Human Rights.

Mechanisms in Africa

In 1979 a United Nations Seminar on the Establishment of Regional
Commissions on Human Rights with Special Reference to Africa was held in
Monrovia, Liberia. This was the final impetus for the adoption of an African
system for the protection of human rights. In 1981, the 18th Assembly of
Heads of State and Government of the Organisation of African Unity (OAU)
adopted the Organisation of African Unity Charter on Human and Peoples'
Rights, which came to be called the Banjul Charter. This Charter came into
force in 1986 when a majority of the OAU member States had ratified it. It
covers a wider range of rights than the European Convention and the American
Convention. It provides for political, civil, economic and cultural rights,
which are regarded as the second and third generation human rights.

The enforcement of the Charter is through the African Commission on Human
and Peoples' Rights, which has general supervisory functions and
jurisdiction under a compulsory system of inter-State complaints.

No Immediate Solution to Asian Standards

In Asia there is not yet an Asian Charter or Convention on Human Rights
which sets our human rights standards. There is no regional human rights
commission that serves as a mechanism for the study, promotion and
monitoring of human rights in the Asian region. There is no human rights
court or other agency for the enforcement of human rights in the Asian region.

Asia includes nearly 50 States showing much more cultural and religious
diversity than the States in the continent of Europe, the two Americas or
the African continent. There is not in Asia a single regional
inter-governmental organisation, unlike the Council of Europe, the OAS or
the OAU. In fact, there are several different inter-governmental
organisations within Asia, formed at different times, mostly at sub-regional
levels, for diverse purposes. Some examples are the South East Asian Treaty
Organisation (SEATO), the Association of South East Asian Nations (ASEAN)
and the more recently formed South Asian Association for Regional
Cooperation (SAARC). 

In the words of Professor Yash Ghai of Hong Kong, the heterogeneous nature
of the peoples of Asia have been described thus:

"All the world's major religions are represented in Asia and are in one
place or another State religions (or enjoy comparable status: Christianity
in the Philippines, Islam in Malaysia, Hinduism in Nepal and Buddhism in Sri
Lanka and Thailand). To this list we may add political ideologies like
socialism, democracy or feudalism which animate peoples and governments in
the region.

"Even apart from religious differences, there are other factors which have
produced a rich diversity of cultures. A culture, moreover, is not static,
and many accounts given of Asian culture are probably true of an age long
ago. Nor are the economic circumstances of all the Asian countries similar.
Japan, Singapore and Hong Kong are among the world's most prosperous
countries while there is grinding poverty in Bangladesh, India and the
Philippines. The economic and political systems in Asia likewise show a
remarkable diversity, ranging from semi-feudal kingdoms in Kuwait and Saudi
Arabia, through military dictatorships in Burma and Cambodia, effective
one-party regimes in Singapore and Indonesia, Communist regimes in China and
Vietnam, ambiguous democracies in Malaysia and Sri Lanka, to
well-established democracies like India. There are similarly differences in
their economic systems, ranging from tribal subsistence economies in parts
of Indonesia through high developed market economies of Singapore, Hong Kong
and Taiwan and the mixed economy model of India to the planned economies of
China and Vietnam. Perceptions of human rights are undoubtedly reflective of
these conditions and suggest that they would vary from country to country."
   

At the same time, other jurists have observed several traditions and
backgrounds common, if not to the Asian region as a whole, at least to
different sub-regions in Asia. Dr. Jayawickrema has observed:

"
there are in Asia threads that can yet be gathered; foundations of freedom
upon which it may still be possible to build. The first is a tradition of
legalism that stretches from the Indian sub-continent, through Sri Lanka and
Malaysia, to the Philippines. Long experience with colonial legal systems
has given these countries a strong legal profession, a relatively
independent judiciary and an ability to utilise the judicial process to
assert and vindicate individual freedom. The second is the existing
constitutional framework of several countries in the region, such as Hong
Kong, India, Kiribati, Nauru, Nepal, Papua New Guinea, the Philippines,
Republic of Korea, Solomon Islands, Sri Lanka, Tonga, Tuvalu and Vanuatu; a
justiciable bill of rights is an integral part of each national
constitution. The third is the fact that within Asia, there are sub-regional
clusters of States that have already ratified the two International
Covenants and thereby demonstrated a willingness to submit to the emerging
human rights regime and its monitoring procedures. These include
Afghanistan, Iran, Iraq, Jordan, Lebanon, Syrian Arab Republic and Yemen in
the west; India, Nepal and Sri Lanka in the south; Cambodia, the Democratic
Peoples' Republic of Korea, Japan, Hong Kong, Mongolia, Philippines,
Republic of Korea and Vietnam in the east; and of course, Australia and New
Zealand. The fourth is an abiding spiritual heritage based upon the tenets
of the four principal religions of the world which sprang forth from the
soil of Asia - Hinduism, Christianity, Buddhism and Islam." 

Due to the vast diversities in terms of the cultural, religious, political
and economic traditions among the numerous peoples of Asia, certain Asian
questions relating to human rights standards do not seem to permit of
solutions in the near future. For example, do the blasphemy laws of
Pakistan, which impose severe criminal punishment including the death
penalty for speaking against religion, offend human rights standards? Again,
do certain forms of criminal punishment to which criminals are subjected
under laws now enforced in certain Asian countries, such as the amputation
of limbs, violate human rights standards? Perhaps similar questions can be
raised on different forms of child labour in the South Asian region.

Need to Live Up to Common Minimum Standards 

At the same time, there are the basic or first generation human rights which
even in the midst of the vast diversities in the Asian continent will admit
of little doubt throughout the continent. The human rights enshrined in the
Universal Declaration of Human Rights are of universal application and
together with the human rights declared in the two International Covenants
must find a place in any regional or sub-regional standard of human rights
in any part of the world.

In dealing with human rights at a regional or sub-regional level, it must be
stressed that human rights are valid universally for all mankind in all
parts of the world, that they are interdependent and indivisible. The
content of human rights does not vary from region or sub-region to another.

It has to be emphasised that a regional mechanism for Asia is being
advocated, not because the content or concept of human rights as enshrined
in the International Bill of Human Rights is inapplicable in whole or in
part in this region. It is because we in Asia wish to ourselves restate
those same universal and inalienable human rights and to remind ourselves of
the common standards of human decency and minimum standards of acceptable
conduct towards other human beings, and to be better able to live up to
those minimum standards. We want to have an Asian body to give a better
account of ourselves periodically and to have an Asian judicial body
functioning in this region to enforce those minimum standards. We want our
own regional body to better promote, protect, propagate and monitor human
rights in our countries, instead of leaving those functions to the U.N.
systems which are functioning worldwide.

As far as regional mechanisms for the promotion, protection, study and
monitoring human rights in the Asian region are concerned, there will be
less controversy. Moreover, provision can be made for States to decide as to
what extent they wish to participate in the working of these mechanisms, and
whether they wish to submit the jurisdiction of an Asian Human Rights
Commission or an Asian Court of Human Rights, and under what conditions.

An Asian Human Rights Charter should therefore be a top priority because in
the midst of vast diversity we continue to believe in common minimum
standards of conduct, in keeping with the notion of the brotherhood of man
that all men are born free and equal in dignity and rights and that they are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood. This is especially so because over half the
population in Asia is considered to be living in abject poverty, below
acceptable living standards for human beings, often deprived of a family and
a home, and because man's inhumanity to man is so vividly to be seen in
massacres and mass murders of human being, in the ever-increasing number of
persons who are involuntarily removed and disappear and in the
ever-increasing number of persons who are subjected to arbitrary action, to
torture and cruel, inhuman and degrading treatment by the establishment.

Efforts to Proclaim an Asian Regime

Apart from the Vienna Declaration which called for regional arrangements for
the promotion, protection and enforcement of human rights, Asian assemblies
have called for the proclamation of an Asian Human Rights Charter. LAWASIA,
the foremost association of lawyers in the Asia Pacific region, held its law
conference in Colombo, Sri Lanka, in September 1993. It was unanimously
resolved at this conference that "a Human Rights Commission and/or Court of
Justice be set up in the LAWASIA region on the lines of the European
Commission or Court." Shortly before that, at the SAARC LAW Conference, a
meeting of lawyers of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan
and Sri Lanka held in Colombo, the proposal for the setting up of a Regional
Court of Justice for Human Rights was unanimously approved. A similar
proposal was made by the then Attorney General of Pakistan, Fakruddin G.
Ibrahim, at the third SAARC LAW Conference held in New Delhi, India.

A regional arrangement for human rights in Asia operating outside the U.N.
system must have to be supported entirely by the States in this region.
Without State-sponsorship it will not be a reality. In the absence of a
single regional inter-governmental organisation in Asia, an
inter-governmental meeting at ministerial level will have to be held,
perhaps preceded by one or more seminars for Asia by the United Nations
Programme of Advisory Services in the Field of Human Rights.

Asian Instrument on Refugees

Another arrangement that the Asian region sadly lacks is a regional treaty
on refugees.

The existing international instruments for the protection of refugees are
the Convention Relating to the Status of Refugees of 1951 and the Protocol
Relating to the Status of Refugees of 1967.

Several South East Asian countries have been "producing" refugees. During
the past decade or so, individuals have been fleeing from Vietnam, Burma,
Afghanistan, Cambodia, Laos, Indonesia, Bhutan, China (including Tibet) and
Sri Lanka, and they have been asking for asylum in the territories where
they land. The most prominent refugee problem has been the plight of the
Vietnamese who have been fleeing their country since 1979. India has hosted
some 120,000 Sri Lankan Tamils who fled conflict and violence in their
country. In Thailand, 300,000 of Cambodians, thousands of Laotians and some
Burmese nationals have been granted temporary asylum since 1970.

In spite of the colossal nature of the refugee problem in Asia, only a
handful of States in this region have acceded to the Convention or the
Protocol. They are China, Japan, Philippines, Australia, Fiji, New Zealand,
Papua New Guinea, Samoa and Tuvalu. In some of these countries there are
problems in implementing the Convention because they have not established
refugee status determination procedures.

Other Asian countries which have not acceded to the Convention are reluctant
to do so for fear that they would be taking over unnecessary burdens.
However, under Article 14 of the Universal Declaration of Human Rights,
"everyone has the right to seek and to enjoy in other countries asylum from
persecution."

Despite the lack of a legal basis for it, South East Asian countries
"receiving" refugees have by and large satisfactorily handled the refugee
problems in the sub-region. Responding to the problem of the Vietnamese
refugees, the "receiving" countries, namely Hong Kong, Indonesia, Japan,
Malaysia, the Philippines and Thailand, developed a multilateral response
called the Comprehensive Plan of Action. Those countries have granted
temporary refuge under the plan to over one million Vietnamese.

In keeping with basic human rights recognised by the International Bill of
Human Rights, there is today a real and pressing need for a legal basis to
solve the Asian refugee problem. This can be done by an Asian instrument on
refugees that must be acceded to by the greater majority of the States in
the Asian region.   

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