Rafsi Albar*
Introduction
Southeast Asia has a grim track record on human rights. Suharto’s Indonesia killed alleged communists en masse during his 32-year reign. Pol Pot’s Khmer Rouge in Cambodia subjugated millions, and Ferdinand Marcos’s martial law in the Philippines was marked by torture, forced disappearances, and extrajudicial killings. Today, Myanmar faces a two-fold problem: first, with its oppressive military rule, which has deprived its people of fundamental rights; and second, with the Rohingya refugee crisis, which has persisted since the Rohingya genocide started in 2016. Many see the region as continuing to follow a dark path.
The Association of Southeast Asian Nations (“ASEAN”) connects these countries and six others. Born in 1967 with the mission to accelerate economic and social cooperation for collective growth and regional stability, the organization has expanded its scope to address evolving global challenges such as environmental issues and counter-terrorism. Human rights, while already included as a guiding principle in the 2007 Charter, became formally institutionalized in the ASEAN infrastructure through the establishment of the ASEAN Intergovernmental Commission on Human Rights (“AICHR”) in 2009 and the ASEAN Human Rights Declaration (“AHRD”) in 2012.
Many have voiced discontent over the Commission’s inability to provide real solutions to pressing human rights issues in the region. Some have suggested the creation of a regional human rights court. While this idea has garnered support from scholars and the public, the debate over the Court has failed to address fundamental questions about its need and feasibility.
I. The Ongoing Discourse
Many legal scholars have concluded that the present ASEAN human rights regime is insufficient to effectively respond to the increasingly rampant human rights violations occurring in member states, ranging from the silencing of political dissent to grave violations such as systemic genocide and crimes against humanity. With the Commission’s work mostly focusing on non-contentious topics that are easily agreeable by member states—which are still important—there is a growing sentiment that the Commission is unable to address the most urgent and controversial human rights issues.
To solve the problem, some have proposed the idea of a regional human rights court. Drawing inspiration from systems in Africa, the Americas, and Europe, many suggest that the best way to achieve justice for human rights violations when a state is unwilling to act is through a supranational judicial authority. In scholarly legal discussions, several proposals have emerged regarding the structure and operation of the Court. The discourse largely focuses on details such as the Court’s jurisdiction, composition of judges, and strategies for cooperation. Yet the goal is lofty: a supranational court empowered to enforce treaties and human rights, comparable even to those in the European continent.
II. The Missing Questions
Discourse about the establishment of a human rights court within the ASEAN system has not been very nuanced, especially considering the political volatility of countries in the region. “Debates”—which are in truth minor quibbles over operational details rather than substantive disagreements on underlying factors—have mostly revolved around how the court should be formed, premised on the common presumption that its formation is inevitable. The question thus arises: are the basic foundations of this presumption—that an ASEAN human rights court is needed and possible—correct?
1. Is a Court Needed?
To be clear, questioning the appropriateness of an ASEAN human rights court does not negate the claim that the region needs a human rights framework. While a Court is likely the most sophisticated option, it is far from being the only effective one. Taking examples from the United Nations’ human rights system, alternatives like employing rapporteurs, instituting special monitoring bodies, or even allocating reparation funds for victims are arguably more feasible alternatives.
The establishment of an ASEAN human rights court must be grounded in the fundamental principles of ASEAN and its member states, and attention to differences between ASEAN and other regional organizations is critical. The European Court of Human Rights, as implied in the preambulatory clauses of the Convention on Human Rights, was built on top of a shared European identity forged through centuries of war and political interactions. Its post-war creation reflected a common European aspiration for human rights and democratic governance. This codified sense of shared destiny and common values has gained the Court widespread legitimacy and respect.
However, ASEAN’s strictly intergovernmental character differentiates it from the supranational form of the European Union. As set up by the 1967 Bangkok Declaration, ASEAN is meant to help members realize their individual potential through socio-economic cooperation and the exchange of best practices while fully maintaining members’ autonomy. ASEAN and its bodies have very limited collective decision-making authority. This structural limitation necessitates innovative approaches to work around the governance gap vis-à-vis the power to compel measures on states and raises real questions about whether the organization should concern itself with human rights.
The foundations for a more comprehensive Southeast Asian human rights regime already exist, albeit not very robustly. The ASEAN Intergovernmental Commission on Human Rights (AICHR) and its landmark instrument, the ASEAN Human Rights Declaration (AHRD), could form the basis of improvements to the regional system. Global precedents have demonstrated that the viability of a judiciary in human rights enforcement is frequently aided by the establishment of a strong non-judicial arm. Therefore, before anything else, the AICHR has to undergo some level of transformation such that it serves as a solid bedrock for the development of a court. When a court is introduced, it can build upon the groundwork laid by the Commission, leading to more cohesive and coordinated efforts in upholding human rights. Creating a court requires significant political and financial capital. It should thus be pursued only after a comprehensive review and exhaustion of other options, such as enhancing the AICHR, developing regional mechanisms for monitoring and reporting, and setting up advisory bodies.
2. Is a Court Possible?
Even if a court is desirable, it might not be possible. The “ASEAN Way” is a paradigm (in)famous for how it has shaped the decisions of the organization and its member states. It dictates how international relations are done among member states, namely through less formalistic and confrontational dialogues in the interest of stability. Although well-intended as a means of showing respect to the sovereignty of states as prescribed as part of customary international law, it poses a number of problems for human rights.
The principle of non-interference, as stipulated in Article 2.2(e) of the ASEAN Charter, limits the organization’s jurisdiction to address human rights issues. The situation in Myanmar illustrates the organization’s current limits. Despite human rights abuses in Myanmar being consistently raised in ASEAN meetings, ASEAN members have yet to take concrete steps to address the crisis. Leaders openly acknowledge the organization’s inaction. But thanks to ASEAN’s overly exaggerated sense of “respect” for sovereignty, the prospect of establishing a permanent institution to address situations like Myanmar seems even more unlikely to gain member support. Moreover, the consultation and consensus-based decision-making process of the organization makes a court even more infeasible. The consultation-and-consensus model is designed to ensure strict obedience to ASEAN’s principles, but it is often blamed for ASEAN’s sluggish responses to problems. Given that some members—not just Myanmar—are still struggling to uphold human rights on their own, political unwillingness to create a human rights court will pose a significant obstacle.
Even if member states manage to put aside their individual agendas and come to a consensus on the establishment of the court, it is not clear that the Court would be able to stand the test of time. Southeast Asian nations differ widely in their political character and the region is deeply divided. Disunity can and has derailed the workings of ASEAN on various fronts. Maintaining an ASEAN human rights court in this environment may be difficult.
Concluding Remarks
The case for an ASEAN human rights court needs to return to its foundations. While the idea of having a judicial body akin to the courts in Europe, Africa, or the Americas holds a certain appeal, the region’s unique context demands tailored and contextual approaches. This article brings to light two often-overlooked basic questions: whether a court is necessary or possible in the first place. These questions do not necessarily mean a court is impossible. But they are prerequisites to further debate – and vital points of contemplation to assure the potency of the potential court should it eventually become a reality.
*Rafsi Albar is an undergraduate at Universitas Gadjah Mada, Indonesia, concentrating on public international law. He assists teaching in administrative law, conducts various public interest legal research, and serves as an editor at Juris Gentium Law Review, the country’s foremost student-run publication.
