Human Rights

Online Scholarship, Perspectives

Crimes Against International Humanitarian Law in Myanmar: Will the Philippines Impose Universal Jurisdiction on behalf of Burmese Refugees?

Lorenz Dantes

I. Introduction

On October 25, 2023, a first-of-its-kind legal effort began in the Philippines. The “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity,” Republic Act (RA) No. 9851, was invoked as a means of prosecuting and achieving justice for atrocities that occurred outside of the Philippines. Burmese refugees who fled to the Philippines initiated criminal proceedings against members of the ruling junta regime in Myanmar for violations of International Humanitarian Law before the Philippine Department of Justice.  According to one Burmese refugee, “[w]e can’t find justice in our own country[,] and we are expecting that the Philippines is the place where we can find some form of justice from the atrocities we have suffered.” Philippine prosecutors must first determine the existence of “probable cause” before the case can proceed to court.

The charges against the junta primarily involve violations of RA 9851’s Section 4(b)(1), Section 4(c)(2), Section 4(c)(7) and  Section 4(c)(10). RA 9851 is often referred to as the Philippine version of the 1998 Rome Statute and was enacted in 2009 to enable the Philippines to prosecute “serious crimes of concern to the international community” such as genocide, crimes against humanity, and war crimes, especially since it is not a member of the International Criminal Court (“ICC”). Section 4(b)(1) covers situations of non-international armed conflicts wherein “serious violations of common Article 3 to the four Geneva Conventions of 12 August 1949” occurred, through the infliction of violent acts against persons taking no active part in the hostilities. Sections 4(c)(2), 4(c)(7), and 4(c)(10), on the other hand, penalize “serious violations of the laws and customs applicable in armed conflict.” This includes intentional attacks on civilian (non-military) objectives, bombardment of undefended towns, and attacks on buildings dedicated to “religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.”

One main feature of RA 9851 that Burmese refugees sought to use is Section 17, which states that jurisdiction can be exercised:

[O]ver persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

In assessing its applicability, it is important to remember that the accused, in this case, are the members of the military junta. The complaint includes Dr. Vung Suang Thang (Chief Minister of the State of Chin), Lt. Gen. Min Naing (chair of the Cyclone Mocha Emergency Response in the State of Chin), Lt. Gen. Tay Zar Kyaw (chief of the Bureau of Special Operations), Maj. Gen. Phyo Thant and Than Htike, Brig. Gen.  Myo Htut Hlaing, Col. Saw Tun, Lt. Col. Myo Zin Tun, and Maj. Nay Myo Oo. Notably, it also includes Gen. Min Aung Hlaing, the overall head of the ruling military junta and the commander in chief of the Tatmadaw, the military forces of Myanmar.

The Burmese refugees stated in their complaint that these members of the military junta bear criminal liability for the murder of civilians and the torching of houses in Myanmar’s Chin state, one of the least developed regions in Myanmar. They also narrated that following a clash between the Tatmadaw and rebel groups that resulted in the deaths of 30 Tatmadaw soldiers, the Tatmadaw took revenge on the residents of the town of Thantlang by burning their houses and firing on villagers and members of a Baptist church group delivering medical supplies and putting out the fires. This violence then produced a massive forced displacement of the town’s villagers into neighboring India’s Mizoram state. To support these factual allegations, the complaint cites a report dated February 25, 2022, from the United Nations High Commissioner of Human Rights, which states that the Tatmadaw Light Infantry Brigade burned down over 900 buildings in Thantlang through at least 23 successive attacks on churches, houses, schools, churches, and offices of non-governmental organizations.

According to the Filipino lawyers of the Burmese refugees, RA 9851 is sufficient to provide the Philippine legal system with universal jurisdiction over these incidents. They contend that “universal jurisdiction means that any state can prosecute a crime … This is not an ordinary crime. It’s considered a crime against the entire international community.” The lawyers also argued that since the military junta “do not represent the legitimate government of the people of Myanmar under international law,” they cannot invoke sovereign or diplomatic immunity. Coincidentally, this complaint also corroborates the damning evidence released last August by a group of investigators from the United Nations known as the Investigative Mechanism for Myanmar, which indicates that the Tatmadaw deliberately targeted civilians with bombs and carried out mass executions of detained people during its operations. This includes dropping fuel-air explosives on a village in the Sagaing region that resulted in the deaths of numerous children.

With the filing of this case, the Philippines has now become the fifth country after Germany, Turkey, Indonesia, and Argentina where legal cases have been sought to be initiated over the crimes committed by the Tatmadaw against a number of civilian population groups in Myanmar. In addition, proceedings are also ongoing at the ICC and at the International Court of Justice (“ICJ”). The lawyers of the Burmese refugees in the Philippines note, however, that the combination of the Philippines having its own domestic law over crimes against International Humanitarian Law as well as being geographically conducive towards getting testimony from witnesses in Myanmar makes it a crucial legal jurisdiction for pursuing international justice over the crimes committed in Myanmar.

It remains unclear whether the existing domestic legal framework in the Philippines is sufficient to pursue international justice over the alleged atrocities committed in Myanmar. To answer this question, we must examine relevant legal and policy considerations.

II. Relevant Philippine Legal Framework

As early as 1952, the Philippines had already ratified the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War. As such, Article 146 of the Fourth Geneva Convention, which has been described as an explicit reference to universal jurisdiction, has the force and effect of a domestic statute within the Philippine jurisdiction. According to this provision, “[e]ach High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed” grave breaches of the convention, as well as to “bring such persons, regardless of their nationality, before its own courts.”

In the case of Bayan Muna v. Romulo, the Philippine Supreme Court (“The Court”) described the relationship between “jus cogens crimes” and universal jurisdiction. According to the Court, jus cogens crimes are so fundamental to the existence of a just international legal order that

[A]ny state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists. The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community and thus granting every State jurisdiction over the crime.

Thus, the Court concluded that even if a particular country does not have domestic legislation on crimes against humanity and war crimes, it would still have jurisdiction to try these crimes due to the principle of universality. According to the Court, this is even more so in countries that adhere to the doctrine of incorporation or those that “recognize [ ] international law as part of the law of the land, necessarily including international crimes, even without any local statute,” since international legal principles on genocide, war crimes, and crimes against humanity have already attained the status of customary international law (“CIL”). Through this pronouncement, therefore, the Court recognized that universal jurisdiction can indeed be utilized within the Philippines’ domestic legal system.

However, a right to try does not mean a duty or obligation to do so, especially for an accused that is in absentia. As stated by the Court in another case, “notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an obligation to prosecute international crimes.” Moreover, the Court added that an invocation of the concept of erga omnes obligations, or those obligations which are “owed by States towards the community of states as a whole,” will not alter this analysis because it cannot be shown yet that the “duty to prosecute perpetrators of international crimes is an erga omnes obligation.”

Fittingly, the Court has thus described universal jurisdiction as being an “accepted” concept in international law, but only applying in special circumstances, rather than absolutely or unconditionally. Accordingly, before Section 17 of RA 9851 can give rise to universal jurisdiction within the Philippine domestic legal framework, it must first comply with the conditions set forth therein. In the case of the Myanmar junta, these conditions can never be satisfied as long as they are in absentia (outside the Philippines). As stated by the Court, universal jurisdiction confers authority unto the forum only after physical custody of the perpetrator of offenses considered particularly heinous and harmful to humanity is obtained.

Considering the above, both Section 17 of RA 9851 and the Philippine Supreme Court’s pronouncements on universal jurisdiction constitute a significant hurdle to the exercise of jurisdiction by Philippine courts as the perpetrators, the Myanmar junta, are outside the Philippines. Theoretically, it may be true, as one legal observer pointed out, that R.A. 9851 also states that the provisions of the Geneva Convention and the rules and principles of CIL are also to be considered in the application and interpretation of RA 9851. Nonetheless, it is also arguable that the limited enumeration of instances under the law where jurisdiction can be exercised operates to preclude any notion of an expansive grant of universal jurisdiction under the interpretative legal maxim of Expressio unius est exclusio alterius. Moreover, even if the supplementary application of the principles of the Geneva Convention and CIL are interpreted as granting an implied universal jurisdiction to Philippine courts beyond what Section 17(b) provides, it would still not solve the quandary of the lack of obligation to assume jurisdiction and try a case against persons who are in absentia. As mentioned in the commentary provided by the International Committee of the Red Cross on the Geneva Convention, the “decision whether or not to prosecute an alleged perpetrator should be taken by competent authorities in line with national legal requirements.” According to the commentary, the words “bring such persons, regardless of their nationality, before its own courts,” which can be found in both Article 49 of the First Geneva Convention and Article 146 of the Fourth Geneva Convention, conceivably “does not imply an absolute duty to prosecute or to punish.” While the principle of Aut Dedere Aut Judicare may provide an important argument in favor of the obligation to assume jurisdiction over the case, doubts about the consistent and widespread state practice of this principle, in the absence of treaty obligations, raise uncertainty and debates over its status as CIL. It is worth remembering the observation made by the former President of the ICJ, Gilbert Guillaume, in a Separate Opinion that “Universal jurisdiction in absentia […] is unknown to international law.”

III. Foreign Comparisons?

Curiously, the filing of this criminal complaint is also being compared to the prosecution and sentencing by Senegal of former Chad leader Hissène Habré. While universal jurisdiction was also invoked in that case, the similarities are more surface level. Senegal had to institute “constitutional and legal amendments that removed the obstacles to holding Hissène Habré’s trial in Senegal, as well as to the establishment of the Extraordinary African Chambers within the Senegalese judicial system to judge Hissène Habré.” Senegal likewise signed a judicial cooperation agreement with Chad to facilitate investigations in Chad. None of these circumstances are present here. As highlighted by one observer, “the Habré case was made possible by different movements, both political and judicial, key of which was the African Union supporting the creation and funding of a special court, then pushing Senegal to amend its law so they could clearly obtain universal jurisdiction.” Moreover, even taking into account the ruling of the ICJ in Belgium v. Senegal, the comparison would still not square with the legal action in the Philippines. In Belgium v. Senegal, Belgium submitted that Senegal failed to prosecute the former President of Chad, Mr. Hissène Habré, for large-scale human rights violations that he allegedly committed during his presidency in Chad.  At that time, Mr. Habré was already a resident of Senegal. The ICJ then ruled that Senegal breached its obligations under Article 6(2) and  Article 7 (1) of the Convention Against Torture (“CAT”).  Article 6(2) requires Senegal to “immediately make a preliminary inquiry into the facts” against “a person alleged to have committed acts of torture” that is within its territory. Article 7 (1), on the other hand,  requires Senegal to “submit the case to its competent authorities for the purpose of prosecution.”

Evidently, the legal ruling in Belgium v. Senegal relates more specifically to the interpretation of the provisions of the CAT rather than on crimes against humanity and war crimes. More importantly, Mr. Habré was present in the territorial jurisdiction of Senegal at that time, while General Min Aung Hlaing and the members of the Myanmar junta are not within Philippine territory, nor will they be in the foreseeable future. This is essentially the same reason why the requirement under Section 17(b) of RA 9851 for the presence of the accused within Philippine territory is so important. While universal jurisdiction can present an important tool for pursuing international justice and accountability, RA 9851’s conditional view of it asserts that it cannot come at the expense of the accused’s fundamental due process rights. Even in Germany, a country that has been frequently described as a model of universal jurisdiction through its Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB), it has been noted that “a trial can never be initiated without the accused being before the court” because it is a “mandatory requirement for a lawful process that defendants have the chance to defend themselves against the accusations brought against them.”

Relevantly, it was reported in 2014 that Spain moved away from absolute, unconditional universal jurisdiction by enacting reform legislation that adopted a restrictive model of universal jurisdiction, just like the Philippines’ RA 9851. This reform legislation thus excluded the possibility of conducting investigations, prosecutions, and trials in absentia, and limited “the exercise of universal jurisdiction to the circumstance that the suspect is present in the territory of Spain.” When this change was questioned before the Supreme Court of Spain, the Spanish Supreme Court rejected the challenge by stating that an absolute and unconditional exercise of universal jurisdiction is not mandated by international law, whether through international treaties such as the Geneva Conventions or by CIL. This ruling from the Supreme Court of Spain is persuasive authority within the Philippine legal jurisdiction, and there is a strong possibility that Philippine prosecutors and courts may interpret Section 17 of RA 9851 similarly to the Spanish Court.

Concomitantly, RA 9851 also provides that the relevant Philippine authorities may dispense with the assumption of jurisdiction if another court or international tribunal is already conducting such an investigation or undertaking the prosecution. As noted previously, legal proceedings over atrocities in Myanmar have been initiated in Argentina, Turkey, Indonesia, and Germany and also in the ICC and the ICJ. While some of these cases may deal with completely different egregious acts committed by the Myanmar military, such as those against the Rohingyas, the possibility of an overlap and connection between these cases can present another challenge to any assumption of jurisdiction by Philippine authorities.

IV. Policy Considerations

Under the Philippine legal system, it is the executive branch, through the Secretary of Justice and the prosecutors, that first determines the existence of probable cause before the case can proceed in court, akin to grand juries in the American legal system. As an executive function, it would be hardly surprising if other factors beyond just the legal questions are also investigated by Philippine executive officials in making their determination. Current Philippine foreign policy, for example, may increase the hesitancy of Philippine authorities to assume jurisdiction on behalf Burmese refugees. The Philippines, as a member of the Association of Southeast Asian Nations, or ASEAN, is expected to observe the long-standing principle of non-interference in the internal affairs of other member countries. While this principle has not stopped the Philippines from issuing and supporting critical statements on the atrocities in Myanmar, allowing criminal proceedings to progress and possibly result in Philippine courts issuing arrest warrants for the members of the ruling junta regime can altogether become a step too far for the Philippines in terms of non-interference. Two years ago, it was essentially this very same principle that prevented the Philippines from even joining the call made by the United Nations’ Human Rights Council that the military junta should release detained Myanmar leader Aung San Suu Kyi.

Additionally, an executive determination by the Philippine Department of Justice must also consider any potential reprisals by the ruling Junta regime against the Filipino population in Myanmar. For instance,  it was reported previously that the arrest of a British national in Myanmar was possibly made in retaliation to the imposition of sanctions by the United Kingdom on Myanmar. Since the welfare of Filipino nationals overseas continues to play a significant and primary role in the country’s foreign policy dealings with other states, any executive decision on the Myanmar cases would therefore have to take into account its potential ramifications for the Filipino nationals that are residing in Myanmar.

V. Conclusion

While not entirely implausible, there are a number of legal and policy obstacles to the Philippines assuming universal jurisdiction over the case filed by the Burmese refugees. These obstacles could impede possible investigations and court hearings conducted by relevant Philippine authorities. As such we should not expect the existing legal framework in the Philippines to become the go-to destination for pursuing international justice over atrocities committed in Myanmar anytime soon.

However, the Philippine domestic legal framework may still be useful to the pursuit of justice by the Burmese refugees. Even if no criminal cases are tried in the Philippines, officials can assist Burmese refugees in the gathering of evidence. This is akin to structural investigations conducted in Germany, whereby investigations are “led irrespective of whether it is foreseeable that investigation proceedings on specific cases will arise.” In this manner, evidence is gathered merely for purposes of submitting it later on to a foreign or international jurisdiction that wants to assume jurisdiction over the case.

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HILJ-HIALSA International Arbitration Collaboration, Online Scholarship

Arbitrating Human Rights of Third Parties to ISDS Cases

Sebastian Sauter Odio*

I. Introduction

Investor-state dispute settlement (“ISDS”) is a mechanism for foreign investors to claim alleged damages caused by host states, primarily based on standards set by international investment agreements (“IIA”). The ISDS regime has been mostly analyzed from the perspective of the investor or the state, setting aside third parties affected by the investment projects. Beyond the investor-state relationship international investment law (“IIL”) implies a complex relationship with other stakeholders, thus obliging the reconciliation of commercial interests with social justice and environmental protection—areas related to human rights (“HR”).

HR of local communities, including indigenous peoples, workers, and consumers can be undermined by a foreign investment project, particularly concerning the extractives industry, the energy sector, and other large-scale projects. Forced displacement and material dispossession violate HR of third parties to an ISDS claim, including the right to housing, food, water, sanitation, education, and a healthy environment, as well as cultural human rights (see Bangladesh Accord Arbitrations, Bhopal Gas Case (Union Carbide Corp. v. Union of India), Myanmar Yadana Gas Field (Unocal Corp.), Nike Child Labor, Shell v. Nigeria, Philip Morris v. Uruguay, Philip Morris v. Australia, Lone Pine Inc. v. Canada, Vattenfall v. Germany, Spence v. Costa Rica, Methanex v. USA). More importantly, third parties affected by such projects are often unaware of the ISDS claims that impact their rights and thus unable to exercise such rights, including access to justice and public participation.

Even though third-party rightsholders can bring HR claims to domestic and international courts,  arbitral tribunals have indirectly ruled on HR matters, especially in cases referring to climate change and the environment (see Urbaser v. Argentina, Bear Creek v. Peru, Allard v. Barbados,  Burlington Resources v. Ecuador, Cortec Mining v. Kenya, S.D. Myers v. Canada, Perenco v. Ecuador, Biwater v. Tanzania). Thus, in this article, I explore the possibility of arbitrating HR in an ISDS procedure, thus providing third parties directly affected by an investment project with an ADR mechanism currently reserved for foreign investors.

II. A Systematic Approach to IIL

As Jean-Baptiste Racine observes in Arbitrage et droits de l’homme (2021), arbitration, as a creation of contract, is normally associated with business and trading, whilst HR pertain to humanistic, universal, and progressive values.[1] Commonly considered opposite areas of the law in the private-public spectrum, arbitrating a HR dispute may be regarded as incompatible. HR duties are, however, not only assigned to the state but also to private parties. Arbitration itself is a case of a private party making binding decisions between conflicting individuals, a power belonging to the right to justice that is generally reserved to state-court litigation. As such, arbitral tribunals shall comply with the public order and HR related to a private-led dispute resolution mechanism.

On this basis, businesses, including foreign investors, are more aware than ever of the HR implications of their operations and of their corporate social responsibility. They have adopted four main efforts to review substantive and procedural standards of IIAs from a holistic and systematic approach of the law. These efforts include incorporating provisions on sustainable development, environmental, health policy and national security in IIAs.

Firstly, the Business and Human Rights (“BHR”) movement addresses business-related HR abuses based on three main pillars that incorporate the United Nations Guiding Principles on Business and Human Rights (“UNGP”): the state’s duty to respect, protect, and fulfil HR, the role of businesses and their duty to respect HR, and the right to access to remedy of those affected by BHR violations.

Secondly, The Hague Rules on Business and Human Rights Arbitration (“The Hague Rules”) is a soft law instrument based on the UNCITRAL Arbitration Rules and the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration that attempts to “lower barriers to access to remedy” by establishing procedural rules that respond to the unique nature of the interests involved in BHR disputes.

Moreover, the UNCITRAL Working Group III’s discussions on the reform of ISDS rules have considered a greater role for HR provisions in IIL, including the right to access to justice and its corresponding rights to trial and to due process. UNCTAD’S Work Program on IIAs also addresses the rulemaking of IIA by advising stakeholders to include sustainable development and inclusive growth provisions in IIAs.

Within this framework of increasing consciousness of the interconnectedness of the law, providing access to third-party rightsholders to bring their HR claims to ISDS arbitral tribunals would not only be compliant with recent efforts regarding the normative review of IIAs, but also address power imbalances in ISDS of investors with regards to third parties—especially the privilege of overpassing local state courts.

III.  Addressing ISDS Disparities

ISDS provides investors a dispute settlement mechanism to claim reparations from breaches of IIA standards by host states, including non-compliance of most-favored nation treatment, fair and equitable treatment, and prohibitions to expropriation provisions. Meanwhile, affected third parties, including those whose HR have been violated by foreign investors themselves, must exhaust internal state mechanisms—for example, obtaining a court ruling with the effects of res judicata—prior to resorting to a standing international HR court. ISDS therefore affords foreign investors a privileged dispute resolution mechanism, to such an extent they can “bypass local courts” and directly resort to an international ad-hoc tribunal, whilst affected third parties must follow the cumbersome procedure of first exhausting internal state mechanisms. This restricts their right to access to justice in relation to the ISDS claim filed by the foreign investor.

In this sense, providing access to ISDS to affected HR third parties would not only rebalance the asymmetries this mechanism has in respect to the investor claimant and third-party rightsholders, but also reinforce their right to access to justice, in accordance with SDG Goal 16. Furthermore, the flexibility of arbitration as an ADR mechanism could enhance the parties’ procedural rights. For instance, if the tribunal is seated in the jurisdiction the HR violation took place, the affected party—usually being local communities—, the foreign investor, and local authorities relevant to the claim may have more access to the knowledge and the functioning of social and cultural relations of local communities, or even receive support from local organizations, and thus enjoy more equal access to communication and effective remedy adjusted to the particularities of the affected party’s reality.

That said, HR claims brought to ISDS cases shall at least comply with particular procedural standards, given the nature of HR and according to the recent normative reviews set forth in section II of this article.

IV. HR Arbitration

Provided the nature and the governing principles of universality, interdependence, indivisibility, and equality of HR, IIA must include special provisions for an ISDS to rule on HR. First and most importantly, parties must agree in good faith to an arbitration clause established in the IIA and/or eventually agree on a side-agreement once the dispute arises. As a product of contract, a dispute may be arbitrable only if the parties have reached such an agreement. Given that a HR dispute relates to fundamental rights, special consideration should be given to the will of the investor and the host state to resolve HR disputes through arbitration. In any case, to be arbitrable, the event that gives origin to the HR violation must be caused by the foreign state and relate to its duties set forth in the IIA.

That said, HR claims should be brought before an ISDS tribunal only if its members have specialized knowledge to interpret and rule on HR. Most ISDS cases are filed before the International Centre for the Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration, the International Chamber of Commerce, the London Court of International Arbitration, and the Stockholm Chamber of Commerce. Filing ISDS cases before unspecialized HR tribunals may result in investment and HR claims being heard separately by different tribunals, thus, fragmenting dispute settlement proceedings. For instance, local activists often file HR claims before national courts or international HR organizations, which are ruled separately from the investment claim.

Concerning transparency and publicity, the IIA shall include provisions that ensure public access to the award, hence, complying with the state’s international HR obligations regarding the respect, protection, and fulfilment of HR. Current efforts to improve the transparency and neutrality of ISDS include: (1) the creation of the Multilateral Investment Court, a permanent court of standing suggested by the E.U.; and, (2) the Mauritius Convention on Transparency, which provides parties to IIA executed prior to April 1st, 2014, to consent on the application of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, setting procedural rules for making publicly available information on ISDS. Amici participation (non-party submissions), public hearings, allowance of observers, as well as the publication of the hearing recordings and transcripts, are other aspects that should be taken into account to guarantee the transparency and neutrality of an ISDS HR procedure.

In terms of remedies, ISDS focuses on economic reparations (compensation), whilst HR requires a broader set of reparations beyond compensation. HR requires, for instance, protective measures for the victim, restitution, rehabilitation, satisfaction and guarantees of non-repetition, as well as collective reparations, or even transitional justice.

On the other hand, the absence of precedent and of an appellate body in arbitration may threaten HR awards and the right to appeal of the parties to the claim. Although an arbitral award is final and binding on the parties (res judicata), it does not set a precedent applicable to other cases. This generates difficulty in predicting outcomes, added to the fact that ISDS tribunals have ruled differently on similar IIA provisions. Moreover, the lack of an appellate body also adds difficulty to the predictability and interpretation of the IIA, insofar as the review of awards sets rules on correcting first instance rulings and provides legal certainty.

Furthermore, the enforcement of an HR award will ultimately depend on the local jurisdiction of and the applicable law to the arbitration agreement. Despite awards being practically enforceable worldwide following the 1958 New York Convention (“NYC”), according to Article 1.3, State Parties may use reservations and hence limit the application of the NYC to commercial matters. As long as HR claims are not defined as commercial matters, states are free to exclude HR disputes from the scope of the application of the NYC and therefore reserve HR claims to domestic courts; as such, the enforcement of an HR award is often a matter of politics.

Even when IIAs respond to the matters mentioned above, the absence of precedent and of an appellate court, compounded by issues regarding the enforcement of the award and specialization of the ISDS tribunal, challenge the possibility of arbitrating HR of affected third parties to ISDS claims.

IV. Conclusion

While ISDS was initially created to protect foreign investors against arbitrary state measures, the increasing awareness of businesses of their corporate and social responsibilities, including HR violations caused by foreign investors, have resulted in exploring alternative ways of providing affected third parties with an ADR mechanism that corresponds to the privilege ISDS entails for foreign investors.

Arbitrating HR of local communities, workers, and consumers breached by foreign investors would not only conform to the systematic approach IIL demands and to the efforts on the normative review of IIAs (including UNGP, The Hague Rules, and UNCITRAL Working Group III and UNCTAD’S Work Program’ discussions), but also enhance the state’s international HR duties and the parties’ right to access to justice.

In this regard, arbitrating HR of third parties to ISDS cases can be feasible if (1) the investor and the host states have executed a valid arbitration agreement; (2) the tribunal is specialized in HR; (3) the publicity and/or transparency of the arbitration proceedings are guaranteed; and (4) the awards are enforceable in that they provide appropriate remedies to the claimant. If the arbitration procedure complies with these requirements, arbitral tribunals should be able to rule on HR claims. However, the absence of precedent and of an appellate tribunal remain tangible challenges to arbitrating HR of third parties to ISDS cases.

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*Sebastian Sauter Odio is a Costa Rican associate attorney and editor-in-chief of the Costa Rican Journal of International Law. In 2022 he obtained his Licenciatura en Derecho (J.D. equivalent) with honors from the University of Costa Rica. He has special interests in Private and Public International Law, Human Rights, politics, and environmental matters.

[1] Jean-Baptiste Racine, Lecture presented at The Hague Academy of International Law Online Summer Course on Private International Law on “Arbitrage et Droits de L’Homme” (2021).

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Online Scholarship, Perspectives

The Political and Legal Ambiguities of the Multilateral Security Support Mission Authorized for Haiti

Moise Jean*

Introduction

Almost a year after the Haitian government requested an international force to deal with gang violence, the United Nations Security Council adopted a resolution under Chapter VII of the United Nations Charter authorizing the formation and deployment of a Multinational Security Support (MSS) mission. This resolution came at a time when public opinion was beginning to question the inaction of the international community, and even its responsibility to protect, in situations such as this, where the state is incapable of ensuring the protection of its own population.

The resolution contains some particularly encouraging aspects: it requires the Mission to carry out its mandate in strict compliance with international law; it commits the Mission to guarantee respect for fundamental human rights, to protect children, and to prevent sexual and gender-based violence and exploitation; and it provides for the establishment of a complaint mechanism. In the event of allegations of misconduct, the Mission is required to conduct investigations and, if necessary, determine who is responsible. The resolution also requests member states participating in the MSS to adopt appropriate wastewater management and other environmental controls to guard against the introduction and spread of water-borne diseases, in accordance with the “World Health Organization’s 2001 report on water quality guidelines.”

These aspects are encouraging because international military interventions are at a high risk of violating international law, whether it be the risk of misuse of the mandate or the risk of human rights violations. In Haiti, U.N. peacekeepers were accused of human rights violations, sexual exploitation, and being responsible for the cholera epidemic that claimed thousands of victims. The formal inclusion of these provisions in the resolution is therefore a commendable initiative: it should help to dissuade the states involved and could contribute to the conduct of operations on a basis closer to the rule of law.

Beyond these positive prospects, however, the resolution raises several fundamental issues by authorizing the creation and deployment of an international military force whose legal nature is ambiguous. As we shall see, this ambiguity may have a negative impact on the smooth running and effectiveness of the authorized operation and may generate difficulties in the event of responsibility for any violations of international obligations.

I. A New Kind of Mission

The Mission to be deployed in Haiti is neither a collective security mission nor a U.N. peacekeeping mission. Although it is based on Chapter VII of the Charter, the resolution does not mention the precise article that is being invoked for authorization of the Mission. The authorized intervention, like many others before it, will not be carried out under the authority of the Security Council. It is therefore not a collective security mission. Similarly, it cannot be described as a peacekeeping mission, since the link between these types of operations and the United Nations is clear from their names––which is not the case for the Mission in question. The international force to be deployed in Haiti is therefore akin to what the doctrine calls an “authorized operation,” as was the case in Korea in 1950, Iraq in 1991, and Libya in 2011. The only difference is that, in those cases, the operation was imposed. Here, it was requested.

There are, however, distinctive features of the Mission that set it apart from authorized operations.  First, there is the question of its mandate. According to the resolution, the Mission is to “provid[e] operational support to the Haitian National Police, including building its capacity through the planning and conduct of joint security support operations.” It must also “provid[e] support[] to the Haitian National Police[] for the provision of security for critical infrastructure sites and transit locations.” In other words, it is not a direct intervention force, with a clear mission to restore security in Haiti. Rather, its mission would be to support the Haitian police in their efforts to combat crime and insecurity. The multinational force would carry out its operations in complementarity with, or even under the leadership of, the police.

This is a new feature in the history of operations authorized by the Security Council. In principle, operations authorized under Chapter VII of the Charter are intended to intervene directly to pacify a situation threatening international peace and security. They do not have to act as a complement to a national force. They are operations that are justified by a peace-threatening situation, requiring emergency military intervention to maintain or restore peace. This is their raison d’être. By deciding that the authorized operation should be carried out in conjunction with the local police, the Security Council is breaking new ground.

What’s more, and this is even more curious, the resolution asks those in charge of the Mission (Kenya, or possibly another state that would take the lead), in coordination with the Haitian government, to communicate to the Security Council information concerning “the goals of the mission and the end result sought, the rules of engagement” prior to the deployment of forces on the ground. In clear terms, this means that it is the participating states, in consultation with the Haitian authorities, who will define the Mission’s operational and final objectives.

This is unprecedented. Never before in the history of the United Nations has an authorized operation had to define its own objectives, never mind in cooperation with the authorities of the state in which it is intervening. In principle, it is up to the Security Council to define the objectives of the mandate, and to monitor and supervise its execution. It cannot delegate this power to a third party. Nor does the Council need the approval of the state concerned to determine the objectives of the mandate of an authorized operation adopted under Chapter VII of the Charter, even if it is the state that requests it. In the latter case, the Council may, if it sees fit, authorize the state concerned to participate simply as an observer in meetings of the “steering committee” for the operation, as was the case with Albania in 1997 (S/1997/362, par. 7). But the state’s participation is not decisive, still less in defining the terms of the mandate. The Security Council is therefore setting a new precedent. No previous resolution adopted in connection with the creation and deployment of a coercive international military operation contains provisions of this kind.

As a result, the nature of the Mission in Haiti is ambiguous. It is an authorized operation created under Chapter VII of the Charter, even though its main characteristics diverge from this type of mission. In reality, it is a U.N. peacekeeping operation created under the umbrella of an authorized operation. Almost all its features, from the question of operational support for the national police to the involvement of the government in determining objectives and rules of engagement, are peacekeeping in nature. It is a hybrid mission combining elements of the collective security system (Chapter VII) and the peacekeeping system but ultimately establishing an institution with an uncertain legal status, that is, a mission which in practice clearly does not fit into any of the categories of institutionalized international military intervention hitherto known.

Because of these legal uncertainties, the MSS Mission is not without its political and legal concerns.

II. Political Issues: The Question of Mission’s Effectiveness

Established on foundations as unstable as they are superficial, the operation authorized in Haiti is undoubtedly fragile. This shortcoming could undermine its effectiveness. It is hard to understand why the Security Council should so lightly authorize an international mission that will mobilize so many resources in a country that is only asking for real support from the international community to solve its problems. One of the consequences of the ambiguities in the Mission’s mandate will be that any disagreement between the operations directorate and the Haitian police or authorities will paralyze their actions. The Haitian government undoubtedly has its own agenda, its own understanding of the problems, and its own solutions. The countries involved also have their own. Compromises will have to be made every time. Will this compromise always be possible? At this stage, it is hard to say.

In the meantime, suffice it to say that while this kind of arrangement, which seems to take Haiti’s sovereignty and independence into account, is not a bad thing in itself, it is something to be wary of. We would be surprised if the Mission were effective in such circumstances. But more fundamentally, there is a risk of disempowerment. For, in the end, it will be easy for those in charge of the Mission to point to the fact that cooperation with the Haitian authorities has not worked well to justify a lack or even an absence of results. What’s more, when Security Council resolutions authorizing a mission are ambiguous, the states involved tend to interpret them for their own benefit, for example by considering their mission accomplished and withdrawing their troops, particularly if they have suffered losses on the ground, as was the case in Somalia.

The vagueness identified in the definition of the mandate of the operation authorized in Haiti can have another, even more devastating consequence: misuse of the Mission. Indeed, in this type of operation, there is always a risk of deviation or instrumentalization. However, the risk becomes even greater when the resolution authorizing its implementation does not sufficiently clarify the mandate, does not clearly spell out what is authorized and what is not, and does not precisely delimit the scope of the intervention. In Libya, for example, Resolution 1973 (2011) did not authorize the overthrow of the Libyan government, contrary to what actually happened. Intervention forces have interpreted it broadly. The lack of precision in these parameters in the resolution adopted on October 2 could lead to a deviation from the mandate of the operation authorized in Haiti, which would ultimately be a disservice to the population we are supposed to be helping.

III. Legal Issues: The Question of U.N. Responsibility

Because of these essential ambiguities, the MSS Mission also raises the fundamental legal concern of responsibility. This is an important issue, given the risks of violations of international law, in particular international humanitarian law and human rights law, during the military intervention. This is especially so in a country like Haiti, where the question of U.N. responsibility has been the subject of debate in the recent past, even though there was not a shadow of a doubt as to whether the mission responsible for the illicit acts (MINUSTAH) belonged to the United Nations. The situation therefore becomes very worrying when the intervening mission is one whose legal nature is not very clear.

And with good reason: according to the United Nations, a distinction must be made between operations authorized by the United Nations and carried out under national or regional command and control, and U.N. operations carried out under their command and control, when assessing imputability to the United Nations (A/CN.4/637/Add.1, p. 10). In the case of U.N. operations, there are two hypotheses to be considered. First, if the operations were carried out jointly by a U.N. force and a force under national command and control, such as the U.N. Operation in Somalia II (UNOSOM II) and the U.S.-led Rapid Reaction Force in Somalia, the conduct of the troops would be attributed to the entity exercising operational command and control. Second, if the operations were carried out by peacekeeping forces, as was the case with U.N. Stabilization Mission in Haiti (MINUSTAH), the Secretary-General considers that, given these forces’ status as subsidiary organs of the United Nations, the conduct would be attributed to the United Nations.

On the other hand, when it comes to operations authorized by the Security Council, as is the case with the Mission to be deployed in Haiti, the United Nations declines all responsibility. According to the venerable organization, international responsibility for operations authorized by the Security Council under Chapter VII of the Charter and conducted under national or regional command and control lies with the state or states conducting the operations in question (A/CN.4/637/Add.1, p. 10). This was the case, for example, in Somalia during Operation Restore Hope, when a car accident occurred. The United Nations declined responsibility on the grounds that the person involved in the accident was working for Operation Restore Hope and not for the UNOSOM. According to the United Nations, the troops of the Unified Task Force were not under its command.

A priori, this should not pose any particular problem if, once established, the responsibility of the state or states could be called into question without any particular difficulties. In practice, however, there is no room for optimism. In most of the authorized operations in which international obligations have been violated and lawsuits brought against the states concerned, the latter have constantly tried to absolve themselves of responsibility by insisting on the central role of the Security Council, and ultimately on the responsibility of the United Nations. This was the case, for example, with the appeals against Kosovo Force (KFOR). While for the plaintiffs, KFOR’s actions or omissions could not be attributed to the United Nations, for the targeted states, on the contrary, KFOR’s actions were indeed attributable to the United Nations. Moreover, both international and national judges have so far refused to rule on the conduct of multinational forces. This creates a gap between the principle of state responsibility for acts committed during an authorized operation and the actual implementation of their responsibility for said acts.

Hence the importance of clarifying the legal nature of the Mission. As already mentioned, the Mission to be deployed in Haiti has the appearance of a U.N. mission in terms of its characteristics, but it is officially an authorized operation. This means, therefore, that the United Nations will not be held responsible for any misadventures that may occur during operations. They automatically rule out any possibility of linking any illicit acts to them.  This is an important legal issue, particularly in a country where the United Nations has shirked its responsibility for damage committed by an international force that was its own. The Haitian government, politicians, and civil society need to be aware of this aspect of the issue.

Conclusion

Ultimately, the authorization of the international military force is not a bad thing, given the situation in Haiti. The Haitians could not take it anymore. Even the intellectuals and other actors traditionally opposed to any international military intervention were for the most part in favor or almost in favor of military intervention, subject to certain conditions. However, the mission that has been set up has shortcomings in its design that leave us perplexed and questioning. Finally, the main, if not the only real virtue of the resolution adopted by the Security Council lies in the fact that it commits the intervening states to act within the framework of the law. It remains to be seen whether this rare virtue will enable the mission to succeed in its challenge, that is, to set an example, bring peace to Haiti, and enable the Haitian people to resume the normal course of their lives, not only for the duration of the operation but beyond.

*Moise Jean is a postdoctoral researcher at the University of Geneva, in the Department of International Law and Organization. He is very grateful to Jacob Libby for his very thoughtful comments and edits.

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Online Scholarship, Perspectives

Jus Cogens v. State Sovereignty: The Battle of Discriminatory Citizenship Laws

Manasa Venkatachalam*

Introduction

With the swelling of nationalism globally, the definition of national identities is becoming increasingly restrictive. This phenomenon is extremely evident in India, where the Citizenship (Amendment) Act, 2019 (CAA) expressly relies on national origin and religion as factors to determine eligibility for citizenship. In this climate of individualistic, national identities, it is important to evaluate how this sense of belonging ties into legal frameworks governing identity, and in particular, definitions of citizenship. Given the involvement of ethnic, national, and religious factors that have become increasingly evident in the granting of citizenship in several parts of the world, the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) becomes a relevant tool to assess such issues from an international legal perspective. This article utilizes the ICERD to examine this leading question: how far can states go in creating criteria to exclude those from citizenship based on ethnic or religious grounds?

Scholars belonging to the Third World Approaches to International Law school often point out how citizenship was created to sustain a colonial and imperial order, and thus, citizenship laws are aimed at excluding “backward” peoples who were viewed as incapable of possessing property and exercising rationality (see, e.g., Bhandar, p. 35; Shahid & Turner, p. 7). The historical exclusion of indigenous communities, women, and people of color from the privilege of citizenship illustrates how citizenship status is used as a tool of “othering” (Edwards). This practice continues in the post-colonial era despite global developments like the ICERD.

The proposal to codify an international prohibition on racial discrimination emerged from the recently independent Pan-Africanist segment of the United Nations. Concerned by the othering and racist discrimination inherent in colonial imperialism, Global South states engaged in forceful multilateral human rights diplomacy to build support for an international prohibition on racial discrimination (see Schabas, p. 248-52). Their efforts resulted in the U.N. General Assembly’s approval of the ICERD in 1965 (Preamble, para. 4; Keane & Waughray, p. 4; Boyle & Baldaccini, who point out how the ICERD painted racism as being “solely about the consequences of Western imperialism”). Even the International Court of Justice (para. 86) has observed that the Convention was drafted “against the backdrop of the 1960s decolonization movement.”

In many ways, the ICERD represents law-making by and for the “Third World.” The Convention’s history makes it an interesting tool to use to examine issues of racial discrimination in the Global South. Still, the ICERD is not without its issues. One significant problem is that Article 1(3) of the ICERD excludes review of domestic nationality laws from the scope of its protection. The International Court of Justice (“ICJ”) has subsequently touched upon the ambit of the exceptions to the prohibition of racial discrimination regarding nationality in its interpretation of the term “national origin.” However, the ICJ confined its analysis to the ICERD and did not consider whether the prohibition on racial discrimination has independent customary character. The International Law Commission’s (“ILC”) recent work (p. 16) on documenting jus cogens norms has introduced a new factor to consider: whether the prohibition of racial discrimination is a peremptory norm. Since peremptory norms are non-derogable,[2] if the prohibition on racial discrimination has peremptory status, all exceptions to this prohibition become irrelevant. This makes the applicable law a lot simpler and the exceptions to the prohibition on racial discrimination in Articles 1(2) and 1(3) of the ICERD inoperative. Using India’s 2019 Citizenship (Amendment) Act (“CAA”) as an example, this article attempts to resolve the conflict between the ICERD’s prohibition of racial discrimination and the carve-out provided under ICERD Article 1(3), which exempts legal provisions concerning nationality from the scope of ICERD’s protection. In doing so, this article purposely distances itself from the explanations offered by the ICJ in Qatar v. UAE, choosing to instead focus on a different approach than the judgment: the possible peremptory nature of the prohibition of racial discrimination.

I. The ICERD and Nationality

The ICERD is one of the most widely ratified human rights treaties in the world. It has 182 states parties. This makes it a powerful tool to regulate discrimination in citizenship laws and practices (see Hoornick, p. 224). Article 1 of the ICERD prohibits racial discrimination, and Article 5(d)(iii) extends this prohibition to guarantee the enjoyment of the right to nationality regardless of race, color, or national or ethnic origin. However, there are certain exceptions to this prohibition that weaken the ICERD as a tool to combat discriminatory citizenship practices. Mainly, Article 1(3) cabins the ICERD’s scope to exclude review of legal provisions of states parties concerning nationality, citizenship, or naturalization as long as such laws do not discriminate against any specific nationality. Thus, the ICERD presents contradictory positions on the issue of discrimination in the grant and denial of citizenship.

Article 1(3), ICERD: Gaps and Relevance

Paragraphs (2) and (3) of Article 1 detail exceptions revolving around citizenship to the prohibition on racial discrimination in Article 1. Article 1(3) of the ICERD reads: “Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.” Article 1(2) excludes the application of the ICERD from “distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” While the exception provided under Article 1(2) featured more prominently in Qatar v. UAE (see para. 83), Article 1(3) has not received such jurisprudential attention. This could be an indication of states’ and courts’ attitudes towards the sovereign sacredness attached to laws governing citizenship, as emphasized in the ICJ’s Nottebohm judgement.[2] The question that has gone unanswered owing to this lack of discussion is whether grounds other than discrimination against a particular nationality can be used to maneuver around ICERD Article 1(3).

Before delving into an analysis of the ICERD, it is important to highlight the practical importance of this inquiry. The current government in India is led by the Hindu nationalist Bharatiya Janata Party. The party’s representatives, specifically the Union Home Minister, have made several statements indicating their anti-Muslim sentiment and how the CAA and the impending National Register of Citizens (“NRC”) are coordinated policies to remove Muslims from the country.[3] Consequently, the next section will highlight the disparate grant of citizenship in India and the international legal consequences of these policies.

II. India, the CAA, and the NRC

The CAA amends the Indian Citizenship Act of 1955 to make specific classes of illegal migrants eligible for citizenship. Prior to this amendment, any person who satisfied the definition of an illegal migrant would not be eligible for Indian citizenship, and neither would their children (see s. 2(b) of the 1955 Act). However, the CAA establishes that if a person (1) belongs to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community, (2) is from Afghanistan, Bangladesh, or Pakistan, or (3) entered India on or before 31st December 2014, such a person is now eligible for Indian citizenship.

The Union Government also plans on introducing a NRC for the entirety of the nation. The NRC would contain the names of all “genuine” Indian citizens, requiring persons to submit evidence to prove citizenship per the criteria in the 1955 Act (see Arts. 3 to 6). A similar system has been implemented in the Indian state of Assam. While this policy has not yet been enacted on the national level, the intention of the CAA and the NRC, as the Home Minister noted, is to “weed out” immigrants that the government deems illegal.

Data from the State of Assam illustrates the effect a nationwide NRC and CAA could have. In 2017, the first draft of the NRC was published for Assam. It excluded 19 million people out of 32.9 million applicants for citizenship. The final NRC for Assam was published in 2019 and excludes 1.9 million people from the list, deeming them all not citizens of India. While citizenship in Assam has always been regulated slightly differently ever since the influx of migrants and refugees from Bangladesh in the 1970s, this data offers insight into the impact that the CAA and NRC could have on the rest of the nation.

The Indian CAA and Discrimination Under ICERD Article 1(1)

In short, the CAA does distinguish and exclude individuals based on identities protected by the ICERD, nullifying basic human rights guaranteed to such persons.[4] It excludes any persons other than those from Afghanistan, Pakistan, and Bangladesh from the benefits of citizenship, which can be argued to amount to discrimination based on national origin.[5] As of April 2023, India hosts over 213,000 refugees and asylum seekers, most hailing from Sri Lanka, Afghanistan, China or Myanmar (UNHRC 2022, p. 9). Around 92,000 of these people originated in Sri Lanka, 72,291 from Tibet, and 30,308 from Myanmar (UNHRC 2023), and these are only those registered with the government (UNHRC 2022, p. 9). On the other hand, 14,466 refugees and asylum-seekers are from Afghanistan (UNHRC 2023), and even fewer are from Bangladesh and Pakistan. The law also clearly distinguishes between persons based on religion, as it only covers persons from Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities.

Additionally, the CAA violates several human rights, including the right to nationality and the right against statelessness. The right to a nationality, though disputed, seems to have entered today’s body of customary international law. Making its earliest appearance in Article 15 of the Universal Declaration of Human Rights, it has been transposed in varying forms into six of the nine core human rights treaties,[6] all of which have widespread ratification, strongly indicating state practice and opinio juris.[7]

The deprivation of the right to nationality has far-reaching consequences. Nationality is the “right to have rights.” Though human rights are inherent, citizenship is often the right that enables the enforcement of all rights; it is the connection between the State and its citizens that ensures the former’s protection of the latter (see Kesby). The deprivation of the right to nationality, consequently, is a deprivation of the vehicle for access to fundamental rights and protection under domestic law.

And, of course, nationality and statelessness are intimately linked. Dubbed a corollary of the right to a nationality (ILC, p. 27), the obligation to prevent and reduce statelessness is now widely considered customary (Case of the Girls Yean and Bosico, paras. 139-141; Blackman, p. 1183; Adjami & Harrington, pp. 102-3 for an in-depth explanation).[8] Statelessness, simply put, is the absence of nationality (1954 Convention, Art.1; Rütte, p. 242). For this reason, the duty to prevent statelessness has been described as a negative right arising from the right to a nationality (Blackman, p. 1176). When combined with the norm of equal and effective protection of the law (Juridical Condition and Rights of Undocumented Migrant, para. 101; UDHR, Art. 1; ICCPR, Art. 26; ICESCR, Arts. 3, 7; CRC, Art. 2; CEDAW, Art. 1), states must abstain from creating discriminatory mechanisms to grant citizenship (Case of the Girls Yean and Bosico, para. 141).

The CAA was enacted with the purpose of providing citizenship to a select few based on national origin and religion and, consequently, depriving the rest of the same. Additionally, irrespective of its purpose, the CAA certainly impeded the right to nationality of persons of national origin in countries other than the three mentioned. These distinctions imply that the CAA impairs the enjoyment of human rights on an equal footing, engaging the CERD’s definition of racial discrimination.

III. Article 1(3) ICERD: A Free Pass for India?

On a purely textual analysis, Article 1(3) of the ICERD would exclude the CAA from the ICERD’s protections. India’s law clearly covers issues of nationality and citizenship, and it does not distinguish against any nationality per se. (It does distinguish on national origin, but national origin has generally been regarded as different than nationality (ICJ, Qatar v. UAE, para. 105)).

A different way to look at the issue is to assess whether the prohibition on racial discrimination has peremptory status. The ICJ declined to take this approach in Qatar v. UAE. But the obligation to not undertake racial discrimination has been deemed erga omnes by the ICJ (see dicta in Barcelona Traction (para. 34)), and the ILC deemed it a jus cogens norm in 2022 (see Annex (e)). Treaty provisions that conflict with peremptory norms are non-derogable and void per customary treaty interpretation rules.[9] Thus, any exception to the prohibition of racial discrimination would be nullified, including Articles 1(2) and (3) of the ICERD. Unfortunately, the ICJ did not touch upon this in its judgment in UAE v. Qatar. Had it, would the outcome have been different?

An obvious reason as to why the ICJ did not venture into this territory is the severity of the approach. Recognizing ICERD’s prohibition on racial discrimination as reflective of customary international law would deal a considerable blow to the sovereign discretion of States in matters of nationality. Courts are legitimate when they are perceived as having the authority to make decisions, and the ICJ is not exempt from this idea. Legitimacy capital is thus linked to authority: when international courts act in a manner that could be perceived as exceeding the scope of authority granted to them, they lose authority (see Grossman et al., p. 5). Consequently, a decision from the ICJ that would use jus cogens as a means to override significant treaty provisions representing the sovereign will of States is highly unlikely, given the shockwaves it would generate with respect to its legitimacy. That being said, such a decision would still be a legally acceptable and effective means to expand the prohibition on racial discrimination.

Conclusion

Public international law has long recognized the State’s sovereign discretion in dictating terms for membership (Donner, p. 17). A permanent population is necessary for statehood; thus, the ability to control the membership of this population is a vital aspect of sovereignty (Mantu, p. 25). However, the focus on individual human rights is eroding this sovereignty-backed discretion. One tool contributing to this erosion has been the prohibition of racial discrimination.

Still, the untapped potential of the ICERD to evaluate selective nationality laws is striking. Selective citizenship laws deprive persons of vital fundamental rights, but remain under the international legal radar. The ICERD must be used to the fullest as a counter to such laws. With the ICERD’s growing usage in international litigation, the time for a challenge to discriminatory laws like India’s CAA may be ripe.

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*Manasa Venkatachalam completed her B.A. LL.B. (Hons.) from Gujarat National Law University, India, and an Advanced LL.M. in Public International Law from Leiden University, Netherlands. She has worked with NGOs, law firms and international organizations over the years, engaging with several facets of human rights and international law. She started working with Blue Ocean Law in July 2023 and is assisting the firm in representing Vanuatu at the International Court of Justice for the Advisory Opinion on the Obligations of States in respect of Climate Change. She is currently based out of Amsterdam. You can find her on LinkedIn and X.

[1] The ILC, for instance, defines it as follows: “A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law (jus cogens) having the same character” (see Conclusion 3).

[2] See p. 20, where the ICJ determines: “It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain.”

[3] For example, Amit Shah has commented that “[f]irst we will pass the Citizenship Amendment bill and ensure that all the refugees from the neighbouring nations get the Indian citizenship. After that NRC will be made and we will detect and deport every infiltrator from our motherland” and that “[w]e will remove every single infiltrator from the country, except Buddha, Hindus and Sikhs.”

[4] This follows the definition of racial discrimination per Article 1(1) of the ICERD, which defines racial discrimination as [a]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

[5] See Judge Robinson’s definition of “national origin” in his Qatar v. UAE dissent (paras. 7-8): “According to the ordinary meaning of the words “national” and “origin”, the term “national origin” refers to a person’s historical relationship with a country where the people to which that person belongs are living… National origin refers not only to the place from which one’s forebears came; it may also refer to the place where one was born.”

[6] ICERD, Art. 7; International Covenant on Civil and Political Rights, Art. 24(3); Convention on the Elimination of All Forms of Discrimination Against Women, Art. 9; Convention on the Rights of Persons with Disabilities, Art. 18; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art. 29.

[7] On this, see the ICJ’s judgement in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (paras. 99-100), explaining how jus cogens norms are determined.

[8] This is reinforced via the Convention on the Reduction of Statelessness, Art. 1(1); the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, Art. 29, the Convention on the Rights of the Child, Art. 7(1), and the International Covenant on Civil and Political Rights, Art. 24(3).

[9] Vienna Convention on the Law of Treaties, Art. 53; Application of Genocide Case (Further Requests for the Indication of Provisional Measures) (Separate Opinion of Judge ad hoc Lauterpacht), para. 100; ILC, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, para. 365; B. Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250(2) RdC 217–384, 289.

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Content, Online Scholarship, Perspectives

Bridging the Gap: African Countries Outpace the West in Descriptive Representation for Persons with Disabilities

Yohannes Takele Zewale*

Editors’ Note: Although HILJ Online: Perspectives typically publishes short-form scholarship, we occasionally publish exceptional longer pieces—such as this one. 

Abstract

Descriptive representation for persons with disabilities in parliaments is not as prevalent as representation based on other identities, such as gender, race, ethnicity, and youth. However, a beacon of progress has emerged from the Global South, with only five countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—constitutionally recognizing the right to descriptive representation for persons with disabilities. Although the reasons behind this recognition in underdeveloped democracies are not yet studied, this Article explores these factors by analyzing their laws and conducting interviews with politicians, advocates, and leaders of organizations for persons with disabilities in these African countries. By doing so, this Article aims to shed light on the noteworthy strides these countries have made in integrating persons with disabilities into their parliamentary bodies ahead of Western countries. The findings suggest that factors such as the lack of real power shared by their governments, cultural and systematic differences between these African countries and the West, strategic preferences of the Disability Rights Movement, recent constitutional review processes, and other similar factors contribute to the recognition of the right to descriptive representation of persons with disabilities ahead of Western democratic countries.

1. Introduction

Descriptive representation refers to a representation in which representatives have similar backgrounds to the voters they represent, with the trust that voters are more effectively represented by legislators similar to them in key demographic characteristics such as gender, ethnicity, or religion.[1] With descriptive representation, the composition of the representative body necessarily shows the demographics and experiences of the citizenry.[2] In other words, representatives are “in their own persons and lives, in some sense typical of the larger class of persons whom they represent.”[3] This type of representation occurs, for example, when legislators with disabilities represent persons with disabilities or when female legislators represent their female constituents.

In her seminal work, Hanna Pitkin argues that the model of Descriptive Representation posits that a representative of a minority group should, to some extent, reflect that group’s common experiences and outward manifestations.[4] However, as articulated by scholars like Anne Phillips, the descriptive representation model goes beyond mere external characteristics, encompassing the ideals and interests of minority groups.[5] Nonetheless, its efficacy in ensuring representation for persons with disabilities remains underrealized. Hendrik Hertzberg highlights the pitfalls of majoritarian plurality electoral systems, where voters often prioritize regional representation, potentially neglecting the specific concerns of marginalized groups.[6] This oversight becomes more pronounced in the case of persons with disabilities, whose dispersed nature is not adequately addressed by such electoral frameworks. Barbara Arneil and Nancy Hirschmann’s research underscores the slower progress in political science regarding disability, revealing a lack of attention to the needs of this substantial segment of society.[7] Stefanie Reher’s observation about the glaring oversight in the descriptive representation of persons with disabilities, constituting one-fifth of the population, emphasizes the urgent need for rectification.[8] In a society that values inclusivity and equal representation, addressing this gap in descriptive representation for persons with disabilities is not just a matter of political theory but a fundamental step toward ensuring the political well-being of a marginalized and underrepresented community.

However, descriptive representation of persons with disabilities in parliaments is less common than descriptive representation based on other identities, such as gender, race, ethnicity, and youth.[9] Yet, in recent years, some countries have begun to constitutionalize the representation of persons with disabilities.[10] These countries may surprise anyone who expects the West to take the lead in recognizing human rights, including the right to representation for persons with disabilities. When measured in indices such as electoral process and pluralism, civil liberties, government functionality, political participation, and political culture, countries like Uganda, Egypt, Kenya, Rwanda, and Zimbabwe are categorized as having lower levels of democracy.[11] Nevertheless, they are ahead of the West in terms of having an inclusive legislature and constitutionally recognized descriptive representation of persons with disabilities. Unfortunately, no research has been conducted to determine the factors behind the constitutional recognition of descriptive representation of persons with disabilities in these five African countries.[12] Thus, this Article explores the factors behind the early recognition of the right to descriptive representation for persons with disabilities by these five African countries, surpassing more developed democracies.

In the rest of this Article, Part II will provide a comprehensive summary of the laws implemented in various African countries that allocate parliamentary seats for persons with disabilities. Part III will delve into the findings derived from the collected interview data to synthesize the rationales behind these countries’ decision to grant the right to representation for persons with disabilities, especially in light of their relatively lower levels of democracy. Part IV will comprise a detailed discussion expanding upon the previous sections’ insights, exploring the legislative measures’ implications and consequences, and highlighting any challenges, successes, and potential recommendations for further improvement. And Part V will provide concluding remarks.

2. Background on Descriptive Disability Representation Laws in Africa

Based on the most comprehensive available evidence, it appears that only five countries in Africa have officially recognized and implemented descriptive representation of persons with disabilities within their parliaments. What makes these five countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—truly fascinating is not just that they recognize the right of persons with disabilities to have descriptive representation in parliament. Equally noteworthy, they consciously decided to enshrine this right directly in their constitutions rather than relying on subsidiary laws. By granting this right a constitutional status, these countries have demonstrated their firm and legally binding commitment to ensuring parliamentary inclusion for persons with disabilities.

For instance, the Ugandan Constitution established a unicameral legislature,[13] which is required to enact laws favoring historically marginalized groups.[14] As a response to this constitutional call, the parliament adopted a law reserving five of the 458 seats in parliament for persons with disabilities; accordingly, there shall be five representatives with disabilities, at least one of whom being a woman.[15] A national electoral college of persons with disabilities, with five representatives from each electoral district, selects those who will occupy the five reserved seats in parliament.[16] Furthermore, every village, parish, sub-county, and district council must include at least one man and one woman with a disability.[17]

Both the Rwandan Constitution and Zimbabwean Constitution established bicameral legislatures, with Rwanda’s Chamber of Deputies and Senate[18] and Zimbabwe’s National Assembly and Senate.[19] While Rwanda and Zimbabwe both have one and two legislative seats reserved for persons with disabilities, the former has seats in the Chamber of Deputies,[20] while the latter has seats in the Senate.[21] The method they choose for selecting these representatives is similar to that of Uganda’s national electoral college of persons with disabilities.[22]

Further, the Kenyan Constitution established a bicameral legislature consisting of the National Assembly and the Senate.[23] These two houses must reflect a fair representation of marginalized groups, including persons with disabilities,[24] requiring the state to ensure the “progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.”[25] Additionally, the Constitution sets aside a minimum number of legislative seats for marginalized groups, including persons with disabilities.[26] Accordingly, parliamentary political parties nominate 12 members, based on proportional representation, to represent special interest groups, including persons with disabilities.[27] Two senatorial seats are reserved for two members, one man and one woman, representing persons with disabilities.[28] Also, a County Assembly must consist of members of marginalized groups, at least two of whom are persons with disabilities.[29] The members representing persons with disabilities are nominated or appointed by the winning political parties.[30]

Lastly, the Egyptian Constitution established a bicameral legislature consisting of an upper house (i.e., the Senate) and a lower house (i.e., the House of Representatives).[31] The Constitution requires the state to grant appropriate representation for minorities, including persons with disabilities, in the House of Representatives and local councils.[32] The House of Representatives consists of 596 seats.[33] Of these, 448 seats are filled through majoritarian elections, 120 are filled through party lists, and the president selects 28 representatives.[34] The country is divided into four constituencies for the list component: two 15-member and two 45-member constituencies.[35] At least one person with a disability must be listed on each list in the former, while at least three must be nominated in the latter.[36] Parties that receive more than 50 percent of the vote are given all of the seats in the constituency, ensuring that at least eight candidates with disabilities are elected to parliament.[37] Apart from the eight candidates, the president may use his power of nomination to designate additional disabled representatives.[38]

The fact that these five countries allocate parliamentary seats for persons with disabilities raises a fundamental question: How did these countries realize the right to representation of persons with disabilities in parliament ahead of Western countries with more developed democracies? This question could be answered by research interviews that advance various potential justifications.[39]

3. Rationales for Early Disability Representation Recognition

Certainly, the principle of parliamentary representation is traditionally viewed as a cornerstone for ensuring the political participation rights of any group. However, this principle undergoes nuanced scrutiny in reserving parliamentary seats for persons with disabilities, particularly in countries with varying levels of democracy. Interviewees from Kenya, Uganda, Rwanda, Zimbabwe, and Egypt have shed light on a multifaceted exploration of the rationales behind this decision. Their insights delve into the intricate fabric of political cultures within their nations, the broader African continent, and Western democracies. Unveiling four key rationales, namely, the absence of genuine power-sharing, cultural and systematic disparities in political ideologies, a strategic choice by the Disability Rights Movement, and the transformative impact of recent constitutional reviews, this section synthesizes the intricate dynamics that influence the decision to grant representation rights to persons with disabilities.

3.1 No Real Power Shared

First, interviewees shed light on power-sharing dynamics in these five African countries, particularly focusing on parliamentary representation for persons with disabilities. A key theme emerged during the interviews, emphasizing that allocating parliamentary seats for persons with disabilities in these countries does not signify genuine power sharing. Instead, it is closely tied to the prevailing authoritarian rule, challenging the perception of these nations as fully democratic. The interviewees argue that, in contrast to Western democracies, the legislatures in these African countries are perceived as symbolic entities, with real power concentrated in the executive branch. They assert that these legislative bodies are, in their words, “sham institutions” where the executive branch reigns supreme. Surprisingly, persons with disabilities find representation in these symbolic legislatures rather than in the executive branch, where actual power resides. This peculiar pattern raises questions about the sincerity of political inclusion for persons with disabilities.

For example, Kenyan interviewees lament the absence of ministers or deputy ministers with disabilities in any of the 22 ministerial offices under President William Ruto. They emphasize that the representation of persons with disabilities in the Kenyan Parliament is hindered by fundamental legal gaps, preventing it from serving as a model for broader inclusion within the executive. Addressing this issue, they argue, requires substantial effort both within parliament and in executive circles. Rwandan interviewees support the “no real power shared” argument by suggesting that even if persons with disabilities secure representation in parliament, they are unlikely to challenge the power dynamics of the incumbent government. The prevailing sentiment is that obtaining a few seats in these symbolic legislatures does not threaten the government’s autocratic rule. Rwanda and Zimbabwe serve as examples where, despite political representation for persons with disabilities in parliament, real power remains concentrated in the executive branch.

Similarly, Egyptian interviewees highlight the absence of ministers or deputy ministers with disabilities in current ministerial offices, reinforcing the idea that genuine power-sharing remains elusive. Their collective perspective is that these countries cannot be considered champions of democracy simply because they allocate some parliamentary seats to persons with disabilities, placing them ahead of developed countries in terms of this specific metric. Additionally, the interviewees reference a Kenyan judge and human rights activist who cautioned against celebrating governments merely for reserving parliamentary seats for minority groups. The judge emphasized the inconsequential nature of parliamentary representation if real power remains entrenched in the executive branch. Interviewees from Uganda align with this sentiment, advocating for the simultaneous fight to involve persons with disabilities in the executive, not merely in parliament.

Contrary to the prevailing skepticism, one interviewee acknowledges the tireless efforts of the Disability Rights Movement and its legislative representatives to leverage parliamentary representation to enhance the social, economic, and political involvement of persons with disabilities. This perspective suggests a nuanced understanding of the potential impact of parliamentary inclusion despite government assumptions of no genuine power-sharing. Further, there is a glimmer of optimism regarding Uganda’s progress in political representation for persons with disabilities. Some interviewees argue that Uganda surpasses other countries in this regard, citing examples of persons with disabilities engaging at the ministerial level. They laud figures like Hellen Asamo, a renowned disability rights advocate and Member of Parliament, who also serves as the Minister of State for Gender, Labour, and Social Development (Disability Affairs).[40] This comprehensive representation in Uganda is seen as exemplary and worthy of emulation by other countries.

Generally, the interviews underscore a common thread—the perception that parliaments in these African countries hold limited authority compared to established democracies, with real power concentrated in the executive branch. However, despite this belief, the Disability Rights Movement recognizes parliamentary inclusion as an empowering tool to advocate for the rights of persons with disabilities. The challenge remains to bridge the gap between symbolic representation in parliament and substantive inclusion in the executive, ensuring that political power is genuinely shared among all citizens.

3.2 Cultural and Systematic Differences in Politics

Second, interviewees revealed intriguing insights into how different cultures and political systems approach the fundamental issue of ensuring representation for minority groups, particularly the disability community, to safeguard their interests. For instance, Egyptian interviewees provided a unique perspective, suggesting that in countries with established mechanisms safeguarding minority interests, such as many Western nations, the focus on parliamentary representation may not be as critical. Similarly, Ugandan interviewees assert that Western democracies already have robust systems, beyond parliamentary representation, dedicated to protecting minority rights, including those of the disability community. They pointed to the United States Civil Rights Act of 1964 as a prime example, emphasizing its role within the judicial system. These interviewees speculated that Western societies might not prioritize parliamentary representation for persons with disabilities, assuming their rights are already adequately protected by existing laws. This viewpoint reflects a divergence in strategies between Western and African nations regarding protecting minority rights.

However, Zimbabwean interviewees offered a different perspective, contending that while anti-discrimination laws in the West, like the Civil Rights Act, have improved the socio-economic participation of persons with disabilities, they may not necessarily enhance their parliamentary representation. They argued that parliamentary representation, if appropriately utilized, could provide comprehensive protection for persons with disabilities because the parliament, as a key decision-making body, shapes laws that directly influence socio-economic and political legislation. Dismissing the argument that Western societies neglect parliamentary representation due to the existence of civil rights laws, they stressed the unique role that parliamentary representation plays in crafting inclusive legislation.

A significant dimension highlighted by several interviewees was the cultural disparity in political philosophies between the West and Africa, specifically regarding the priority given to individual versus group rights. Western democracies typically prioritize individual rights, such as food, housing, and health, over group demands like representation. In contrast, emerging African democracies, guided by the African Charter on Human and Peoples’ Rights (ACHPR), prioritize group rights. The ACHPR, particularly in articles 19-24, underscores the importance of group rights in Africa. Yet, considering that persons with disabilities may not fit the criteria defining a specific group under the ACHPR, interviewees speculated that the collective nature of African societies and the African human rights system might have prompted the demand for representation as a group right. This distinction in approach, influenced by factors like organization, history, culture, language, psychology, territory, and political form, could explain why the representation of persons with disabilities is prioritized differently and more rapidly in African countries compared to Western democracies. The interviews suggest that acknowledging these cultural and political nuances is crucial to understanding the distinct emphasis on parliamentary representation for persons with disabilities in African democracies.

3.3 Chosen Strategy by the Disability Rights Movement

Third, interviewees considered how, in comparison to its Western counterpart, the Disability Rights Movement in Africa is a relatively recent phenomenon,[41] gaining momentum after the enforcement of numerous international human rights conventions.[42] According to insights from Zimbabwean interviewees, this movement is deeply influenced by the philosophy embedded in these conventions, particularly grasping the right to comprehensive political participation.

Further, interviewees perceive the movement to have strategically prioritized realizing the right to representation for persons with disabilities. This strategic emphasis is seen as a means to accelerate their broader advocacy efforts for various claims by persons with disabilities. A disability rights advocate from Rwanda, who is visually impaired, underscores the challenging living conditions in these countries, where persons with disabilities face multidimensional problems, surpassing challenges encountered in developed nations. The interviewees suggest that in these African countries, where persons with disabilities are marginalized across socio-economic, cultural, and political spheres, representation in decision-making bodies, especially in parliament, emerged as a crucial strategy. The rationale behind this strategic focus is articulated by one interviewee, emphasizing that parliamentary representation serves as a powerful tool to confront the manifold discrimination and marginalization faced by persons with disabilities.

By having members of the disabled community participate as representatives in parliament, the movement envisions a relatively straightforward path to demanding the respect of rights and proposing solutions to the systemic challenges encountered by persons with disabilities. The sentiment is clear—having persons with disabilities within the decision-making institution of parliament transforms them into active contributors and solution providers to the issues confronting their community. The interviewees highlight the strategic importance of parliamentary representation, who believe that being part of the decision-making process enables advocates to actively address and resolve the concerns raised by the disability community. This proactive engagement within parliament is viewed as a vital step in the broader struggle for the rights and well-being of persons with disabilities in the face of complex challenges in their respective countries.

3.4 Impact of Recent Constitutional Review Processes

Fourth, interviewees considered how, except for Uganda[43] and Rwanda,[44] several African countries, like Kenya,[45] Zimbabwe,[46] and Egypt,[47] have recently undergone constitutional reviews to foster democratic systems. These constitutional changes are viewed by interviewees as pivotal, ushering in more inclusive representation, especially for persons with disabilities. Notably, the interviewees emphasize that these constitutional shifts were influenced by the momentum gained in the Disability Rights Movement’s global campaigns. The adoption of significant human rights instruments, including the Standard Rules on the Equalization of Opportunities for Persons with Disabilities[48] and the Convention on the Rights of Persons with Disabilities (CRPD),[49] played a crucial role in shaping these inclusive constitutional provisions. Interviewees assert that these constitutional revisions, influenced by international conventions, have been instrumental in achieving disability-inclusive parliamentary representation.

For instance, Kenya introduced the reserved seat system in 2010 following the enactment of its new Constitution. Kenyan interviewees credit this constitutional change for a notable improvement in the lives of persons with disabilities. Representatives in the legislature, empowered by the Constitution, have successfully advocated for laws protecting disability rights and addressing economic challenges. Additionally, they have championed the implementation of constitutional provisions, reserving at least 5 percent of government jobs for persons with disabilities. Current efforts are focused on further legislation to increase the representation of persons with disabilities in both houses of parliament. However, Kenyan interviewees also expressed concerns about the gaps and limitations in the current parliamentary representation system, emphasizing the need for continued improvement. Despite these challenges, they acknowledge promising strides compared to countries denying persons with disabilities the right to parliamentary representation.

Further, newly enacted in 2014, the Egyptian Constitution allocates eight parliamentary seats for persons with disabilities, a notable achievement in fostering diversity and inclusivity. Interviewees highlight that this inclusive representation has catalyzed progress in promoting and protecting disability rights since its inception. Before this constitutional change, disability policies and services in Egypt were limited, but the 2014 Constitution triggered a shift towards greater recognition and inclusivity. Similarly, Uganda’s experience reveals that the representation of special interest groups, including persons with disabilities, began during the drafting of its 1995 Constitution. The government’s openness to the voices of minority groups, influenced by changes in international human rights and the impactful role of the women’s movement, played a significant role in this accomplishment. The effective leadership of disabled representatives in Uganda’s parliament has led to remarkable progress in the political, economic, and social spheres for persons with disabilities. Laws and policies on inclusive education and the recent amendment of the Persons with Disabilities Act in 2020 reflect the tangible impact of these representatives in shaping legislative agendas.

Generally, the recent constitutional reviews in these countries have provided unprecedented opportunities for persons with disabilities to hold legislative seats as recognized minority groups. The constitutional drafting and adoption processes have not only empowered disability rights advocates but have also compelled countries to reserve seats for persons with disabilities, marking a significant step toward greater inclusivity and representation.

4. Challenges, Successes, and Recommendations

Understanding descriptive representation of persons with disabilities involves looking at challenges, achievements, and how inclusivity is changing. Exploring how descriptive representation works, the diversity within the disability community, the laws around voting rights, and the group rights emphasized in African contexts reveal the evolving nature of descriptive representation and what it means for human rights.

4.1 Participation of Persons with Disabilities in the Representation Process

The recognition by these countries of the right of persons with disabilities to be represented in parliament is a commendable achievement, considering the potential challenges involved. These nations deserve applause for reaching this milestone ahead of others. Building on this success requires a collaborative effort between the disability community and the government. Given that these countries may not have as long a history of practicing democracy as the West, they are still establishing or developing their democratic institutions. In this context, acknowledging the rights of persons with disabilities to parliamentary representation offers a unique opportunity for their democracy to flourish inclusively.

Nevertheless, as highlighted by interviewees, including persons with disabilities in parliament should not be viewed in isolation. While entering parliament is a significant avenue for political participation, it is not the sole or ultimate objective. The executive must extend and implement inclusive practices observed in parliament, as these institutions are interdependent. Parliamentary representation loses its meaning if the executive cannot effectively implement the policies formulated by legislators. It is essential to work towards a system based on the rule of law rather than the rule of individuals, even if this is not the current reality. Progress in developing inclusive practices in parliament can serve as a model for other institutions in these developing democracies.

Additionally, actively involving persons with disabilities in electing and sending representatives to parliament is crucial, as the CRPD outlines. However, in some African countries, among the five under consideration, this may not be the case. For example, unlike in Uganda and Rwanda, where representatives with disabilities are elected through an electoral college involving direct participation, Kenya relies on winning political parties to nominate representatives for persons with disabilities without necessarily consulting the individuals themselves.[50] Many persons with disabilities in Kenya oppose this form of nomination, advocating for increased opportunities to be elected or nominated by their community. Two main reasons drive this preference.

Firstly, relying solely on political parties for nomination undermines the law meant to ensure the representation of persons with disabilities in parliaments. If a political party disregards persons with disabilities as a marginalized group deserving of priority, their concerns and interests are left unrepresented. Moreover, the principle of “progressive realization” stipulated in the Kenyan Constitution,[51] meant to guide the gradual implementation of inclusive representation, has been misused as an excuse for neglecting the adequate representation of persons with disabilities.

Secondly, nominated members of parliament and the Senate with disabilities are often expected to prioritize party interests over the disability agenda. Studies show that big parties are accused of being insensitive to minority concerns, focusing primarily on the majority or the wealthy.[52] Party-controlled nomination and election can negatively impact minority interests, as representatives prioritize the party’s objectives.[53] In Kenya, where persons with disabilities do not actively involve themselves in the nomination and voting process, party leaders may influence and manipulate them against their best interests. For instance, as interviewees suggest, Senator Mwaura, nominated as the representative for persons with disabilities, lost his position in 2022 due to his failure to advance the party’s agenda beyond disability-related issues.

To prevent such situations, empowering persons with disabilities to have control over the representation process is crucial, rather than relying solely on political parties for nominations. This empowerment ensures that the interests and concerns of persons with disabilities are prioritized and protected. Moreover, the active involvement of persons with disabilities in developing and implementing laws related to descriptive representation is essential for compliance with the CRPD.[54] The CRPD emphasizes close consultation and engagement with persons with disabilities and their representative organizations in developing and implementing legislation, policies, and decisions about disability issues.[55] This principle aligns with the slogan “nothing about us without us” from the Disability Rights Movement, emphasizing the importance of empowering persons with disabilities to choose their representatives.[56] This slogan not only reflects the fundamental principle of participation in the CRPD[57] but also serves as a binding obligation for state parties,[58] which is evident throughout the treaty.[59]

4.2 Diversity Among Persons with Disabilities

Representation must embrace the diversity inherent among persons with disabilities, recognizing that disability encompasses a range of sub-groups.[60] The term “disability” serves as an umbrella, covering various types, such as visual, hearing, physical, and intellectual disabilities.[61] As disability studies scholar Elizabeth Barnes notes, the diversity within this label is remarkably heterogeneous.[62] Mental disabilities differ significantly from deafness, and blindness presents distinct challenges from achondroplasia.[63]

The diversity among persons with disabilities extends beyond their specific disabilities. While they encounter oppression or discrimination in generalizable ways, the diverse nature of disabilities results in varied needs and interests. Difficulties in seeing, hearing, or walking elicit different and specific responses tailored to the type of disability.[64] Despite these differences, disability types are often unintentionally or purposely merged into a single category.[65] Persons with disabilities are aware of their differences, but a person with one disability may not fully understand the needs of someone with a different disability. For instance, a visually impaired individual may struggle to grasp the specific needs of a person who is deaf. This lack of familiarity extends to the wider community, creating challenges in mutual understanding. Active involvement in the nomination and voting process by persons with disabilities is crucial to ensuring their diverse needs are adequately represented and prioritized.

The CRPD underscores the importance of recognizing diversity among persons with disabilities in policy formulation, emphasizing that persons with disabilities constitute a diverse population[66] and acknowledging the diversity of disabilities as a crucial aspect of respecting differences.[67] Descriptive representatives should mirror this diversity, especially in legislatures where certain seats are allocated to persons with disabilities. Yet, in some African countries, the current application of descriptive representation falls short of CRPD standards. For example, in Egypt, though eight seats are reserved for disabled representatives, they are exclusively occupied by individuals with physical disabilities. Similarly, in Kenya and Uganda, the majority of representatives with disabilities have physical disabilities, with limited representation from other disability types. This homogenous approach contradicts the CRPD’s emphasis on recognizing and respecting the diversity of disabilities.[68]

Moreover, the number of seats allocated for persons with disabilities must reflect the breadth of disability diversity.[69] In countries like Rwanda[70] and Zimbabwe,[71] where only one or two seats are reserved, a single representative is expected to represent all types of disabilities, overlooking the diverse needs of persons with disabilities. Insufficient seat allocation not only results in underrepresentation of the interests of persons with disabilities but also risks perpetuating the election of representatives from the same disability group in every election cycle. This limitation undermines the fundamental principle of diversity within the disability community and leaves certain groups consistently underrepresented.

Countries that reserve seats for persons with disabilities in only one legislative house, as in the cases of Rwanda or Egypt, face additional challenges. In less democratic countries, the upper houses often lack effective law-making power, rendering representation in only one house less impactful. A balanced approach, as seen in Kenya, where persons with disabilities are represented in the National Assembly and the Senate, ensures more comprehensive and effective representation.[72] Thus, embracing the diversity among persons with disabilities is not just a moral imperative; it aligns with the principles outlined in the CRPD. Descriptive representation that reflects the varied needs and interests of persons with different disabilities is crucial for building an inclusive and equitable society.

4.3 Legal Capacity and Voting Rights

Ensuring the right to vote and run for office is paramount for all categories of persons with disabilities. The CRPD firmly establishes the right of every person with a disability to be recognized as a person before the law.[73] Unlike the International Covenant on Civil and Political Rights, its predecessor, the CRPD, refrains from outlining circumstances that could strip individuals of this right or limit their voting rights.[74] Instead, it emphasizes that persons with disabilities have the right to enjoy legal capacity on an equal basis with others in all aspects of life, including the fundamental right to vote.[75] Furthermore, the CRPD reaffirms the unwavering commitment of international human rights law to uphold the right of persons with disabilities to participate in political life.[76]

The CRPD unequivocally states that a person’s status as a person with a disability, including a mental one, cannot serve as a ground to deny the right to vote.[77] The case of Zsolt Bujdosó et al. v. Hungary (2011) further emphasized that the CRPD compels state parties to ensure the full and effective participation of persons with disabilities in political and public life on an equal basis with others, including safeguarding their right to vote.[78] The Committee on the Rights of Persons with Disabilities firmly rejected any reasonable restrictions or exceptions for specific groups of persons with disabilities, ruling that excluding the right to vote based on perceived or actual mental disabilities constitutes disability discrimination in the CRPD.[79]

Despite these clear directives, approximately 80 percent of countries globally persist in restricting or depriving persons with mental disabilities of their right to vote.[80] This is often based on the diagnosis of a disability (status approach), the perceived negative consequences of a decision (outcome approach), or the assessment of deficient decision-making skills (functional approach).[81] For example, in Uganda, an electoral college exclusively composed of persons with disabilities elects approved representatives, each of whom is required to have the right to vote.[82] However, the Parliamentary Elections Act of Uganda deems a person ineligible for election as a member of parliament if they are considered of unsound mind.[83] Consequently, Ugandans with mental disabilities are barred from participating in the electoral college, thereby denying them both the right to vote and the opportunity to stand for election.[84] This exclusion means that persons with mental disabilities remain without descriptive representation despite having unique interests and policy preferences.

Without the lifting of voting restrictions based on disabilities, persons with mental disabilities will continue to face limited opportunities for genuine descriptive representation. Furthermore, by denying specific subgroups of persons with disabilities the right to vote, we risk diminishing the overall representation of persons with disabilities in legislative bodies. The consequences extend beyond those individuals whose voting rights are curtailed, impacting the broader goal of inclusive and equitable representation.

4.4 Group Rights, Quotas, and Future Implications

In Africa, group rights for persons with disabilities take precedence, reflecting the communal nature of African societies and the African Human Rights System. Descriptive representation for persons with disabilities has been prioritized by these countries even before Western nations, as evident in both the ACHPR and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities, which recognizes descriptive representation as a group right.[85]

During the drafting of the Protocol, discussions initially considered quotas of five percent and reserved seats for persons with disabilities,[86] mirroring similar considerations during the drafting of the CRPD.[87] Although the proposal for a 5 percent quota was ultimately excluded from the final version of the Protocol, the provision ensuring descriptive representation in legislatures was retained.[88] This fact underscores the emphasis on group rights in African politics, contributing to realizing the right to representation for persons with disabilities in the studied countries. Interviewees highlighted that legislative or electoral quota laws in their respective countries supported the right to representation even before such measures were implemented in the West. The implementation of the right may require temporary measures like quotas, acknowledging that societal mindset and institutional inclusion might not be fully prepared for direct elections to ensure the representation of persons with disabilities.

Even in Western democracies, ensuring parliamentary representation for minority groups is challenging. While developed countries adopt additional measures for other minority groups, such as majority-minority districting for black minorities in the United States,[89] these approaches may not suit the unique circumstances of persons with disabilities. Disability’s inherent nature, not confined to specific categories, makes majority-minority districting impractical.[90] Countries like Uganda and Kenya grant descriptive representation for persons with disabilities constitutional status, declaring it a human right, similar to other fundamental rights. In contrast, in the Western context, descriptive representation remains a political decision or privilege rather than an explicitly asserted human right. Recognizing descriptive representation as a group right may have significant implications for shaping future human rights philosophy, expanding our understanding of political rights, and promoting inclusivity within the political process.

While international human rights mechanisms predominantly focus on safeguarding individual rights, certain treaties explicitly recognize distinct rights attributed to groups.[91] The exercise of the right to representation as a group right requires individuals representing the group to hold positions in a legislature. Persons with disabilities can assert their right to representation in legislatures by appointing representatives to occupy the seats to which they are entitled. Apart from the African Disability Protocol, no international human rights treaty currently recognizes the right to descriptive representation as a group right. However, if African countries domestically recognize this right, it may set a precedent for its establishment as a group right under international human rights law. This potential development would contribute to a more comprehensive and inclusive political process, expanding the scope of political rights.

5. Conclusion

The landscape of descriptive representation for persons with disabilities in parliaments reveals disparities compared to representation based on gender, race, ethnicity, and youth. Recently, five African countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—have constitutionally acknowledged the right to descriptive representation for persons with disabilities. This early recognition can be attributed to several factors. Interviewees highlight that including persons with disabilities in parliaments, without extending this representation to the executive branch, may indicate a perception of limited parliamentary power, providing a space for shared representation. Despite potential government beliefs, the Disability Rights Movement sees parliamentary inclusion as an empowering tool for advocating the rights of persons with disabilities.

The divergence in political and legal culture between these African countries and the West, marked by differences in the development of democracies and the prioritization of individual versus group rights, may have played a role in the early recognition of descriptive representation for persons with disabilities in African parliaments. Additionally, the preference for securing legislative seats for persons with disabilities may stem from the myriad forms of discrimination and challenges they face in Africa. Recent constitutional review processes have also influenced the recognition of descriptive representation, with these constitutions achieving higher inclusive representation than other countries. Key human rights instruments, such as the Standard Rules on the Equalization of Opportunities for Persons with Disabilities and the CRPD, have been crucial in driving positive changes.

However, challenges persist in certain African countries, where persons with disabilities are excluded from participating in the nomination and election of their representatives, and the execution of representation falls short of accommodating the diverse needs of persons with disabilities in compliance with the CRPD. In contrast, while strategies like majority-minority districting contribute to descriptive representation in the Western context, it remains a subject of political discourse. Recognizing the significance of countries that explicitly acknowledge the right to representation for persons with disabilities in their laws is crucial, as it not only marks an achievement but also holds the potential to shape the future philosophy surrounding human rights.

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* Yohannes Takele Zewale is an S.J.D. Candidate at Syracuse University College of Law.

[1] Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628, 629-30 (1999).

[2] Id.

[3] Id.

[4] Hanna Fenichel Pitkin, The Concept of Representation 90–94 (1967).

[5] Id. ; Anne Phillips, The Politics of Presence (1998).

[6] Hendrik Hertzberg, Politics: Observations and Arguments (2004).

[7] Barbara Arneil & Nancy J. Hirschmann, An Introduction, in Disability and Political Theory 1, 1–10 (Barbara Arneil & Nancy J. Hirschmann eds., 2016).

[8] Stefanie Reher, Do Disabled Candidates Represent Disabled Citizens?, 52 Brit. J. Pol. Sci. 1, 1–6 (2021).

[9] Mona Lena Krook, Electoral Quotas and Group Representation, in Research Handbook On Political Representation 198, 199 (Maurizio Cotta & Federico Russo eds., 2020).

[10] Id.

[11] Ranking of Countries by Quality of Democracy, Democracy Matrix (2020), https://www.democracymatrix.com/ranking.

[12] Krook, supra note 9 (However, while Krook underscores that certain countries, including Egypt, have begun to acknowledge descriptive representation of individuals with disabilities, she did not elaborate on the reasons why these African countries achieved recognition of such representation in their parliaments ahead of western countries).

[13] Helene Combrinck & Tobias Pieter van Reenen, The UN Convention on the Rights of Persons with Disabilities in Africa: Progress After 5 Years, 14 Sur Int’l J. Hum. Rts. 133 (2011); see also Ugandan Const. art. 77.

[14] Ugandan Const. art. 32.

[15] Id. art. 78; Ugandan Parliamentary Election Act, art. 8.

[16] Ugandan Parliamentary Election Act, art. 8(2)(d); Krook, supra note 9, at 269.

[17] Ugandan Local Government Act, arts. 10, 23.

[18] Rwandan Const. art. 64.

[19] Zimbabwean Const. art. 118.

[20] Rwandan Const. art. 75(4).

[21] Zimbabwean Const. art. 120(1)(d).

[22] Rwandan Const. art. 75(4); Zimbabwean Election Act, § 45(A)(2).

[23] Kenyan Const. art. 93.

[24] Lucianna Thuo, Realising the Inclusion of Young Persons with Disabilities in Political and Public Life in Kenya, 4 Afr. Disability Rts. Y.B. 25 (2016).

[25] Kenyan Const. art. 54(2).

[26] Id. arts. 97-98, 177.

[27] Id. arts. 90, 97(1)(C).

[28] Id. art. 98(1)(D).

[29] Kenyan Election Act art. 36(1)(F) (2011); see also Kenyan Const. art. 177(1)(C).

[30] Kenyan Const. arts. 90, 97.

[31] Egyptian Const. arts. 101, 248.

[32] Id. arts. 180, 244.

[33] Jan Claudius Völkel, Sidelined by Design: Egypt’s Parliament in Transition, 22 J. N. Afr. Studies 595, 607 (2017).

[34] Id.

[35] Egyptian Law No. 46 on the House of Representatives arts. 1-5 (2014).

[36] Id.

[37] Id.

[38] Egyptian Const. art. 102.

[39] In this Article, I present findings from a research project conducted between 2022 and 2023. Since the issue lacks prior research, qualitative methods such as interviews and observation were proposed. Accordingly, I gathered a diverse group of 15 individuals, nine men and six women, with disabilities to participate in this research. The interviewees included disability rights advocates, leaders of organizations representing persons with disabilities, and politicians with disabilities. They were from Kenya, Uganda, Rwanda, Zimbabwe, and Egypt. IRB approval was secured; informed consent was obtained from interviewees.

[40] Minister of State for Disability, Ministry of Gender, Labour and Social Development, https://mglsd.go.ug/asamo-hellen-grace/ (last visited Oct. 23, 2023).

[41] Julie Livingston, Insights from an African History of Disability, 2006 Radical Hist. Rev. 111, 111–125 (2006).

[42] Id.

[43] Uganda 1995, Constitute Project, https://www.constituteproject.org/constitution/Uganda_2005 (last visited Oct. 22, 2023).

[44] Rwanda 2003, Constitute Project, https://www.constituteproject.org/constitution/Rwanda_2015 (last visited Oct. 22, 2023).

[45] Kenya 2010, Constitute Project, https://www.constituteproject.org/constitution/Kenya_2010 (last visited Oct. 22, 2023).

[46] Zimbabwe 2013, Constitute Project, https://www.constituteproject.org/constitution/Zimbabwe_2013 (last visited Oct. 22, 2023).

[47] Egypt 2014, Constitute Project, https://www.constituteproject.org/constitution/Egypt_2014 (last visited Oct. 22, 2023).

[48] U.N. Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Res. 48/96 (Dec. 20, 1993).

[49] U.N. Convention on the Rights of Persons with Disabilities, 2515 U.N.T.S. 3 (Dec. 13, 2006) [hereinafter “CRPD”].

[50] Kenyan Const. arts. 90, 97(1)(c).

[51] Id. at art. 54.

[52] Nancy L. Rosenblum, On the Side of The Angels: An Appreciation of Parities and Partisanship 401 (2008).

[53] Julian Bernauer, Ethnic Politics, Regime Support and Conflict in Central and Eastern Europe 65 (2015).

[54] CRPD, supra note 49, at preamble.

[55] Id. at art. 4(3).

[56] Michael Ashley Stein, Disability Human Rights, William & Mary Law School Scholarship Repository 75 (2007), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1285&context=facpubs.

[57] CRPD, supra note 49, at art. 3.

[58] Id. at art. 4(3).

[59] Id. at arts. 29, 33(3).

[60] Kenjiro Sakakibara, Work Exclusion and Disability Types: The Heterogeneity of Disability as Social Exclusion in the 2011 Irish Census Microdata, 28 Irish J. Sociology 65, 66 (2020).

[61] Id.

[62] Elizabeth Barnes, The Minority Body: A Theory of Disability 9 (2016).

[63] Id.

[64] Sakakibara, supra note 66.

[65] Id.

[66] CRPD, supra note 49, at preamble.

[67] Id. at art. 3.

[68] Id. at preamble.

[69] Id. at arts. 1(2), 6.

[70] Rwandan Const. art. 75(4).

[71] Zimbabwean Const. art. 120(1)(D).

[72] Kenyan Const. arts. 97-98, 177.

[73] CRPD, supra note 49, at art. 12(1).

[74] Committee on the Rights of Persons with Disabilities, General Comment No. 1: Article 12: Equal Recognition Before the Law, ¶ 29, U.N. Doc. CRPD/C/GC/1 (May 19, 2014) [hereinafter “CRPD General Comment No. 1”).

[75] CRPD, supra note 49, at art. 12(2).

[76] Id. at art. 29.

[77] CRPD General Comment No. 1, supra note 73.

[78] Committee on the Rights of Persons with Disabilities, Communication No. 4/2011 [Zsolt Bujdosó v Hungary], U.N. Doc. CRPD/C/10/D/4/2011 (Oct. 16, 2013).

[79] Id. ¶ 9.4.

[80] Dinesh Bhugra et al., Mental Illness and the Right to Vote: A Review of Legislation Across the World, 28 Int’l Rev. Psychiatry 395, 394–99 (2016).

[81] CRPD General Comment No. 1, supra note 73.

[82] Guidelines for Election of Representatives of Persons with Disability in Parliament 2017, The Ugandan Electoral Commission, https://www.ec.or.ug/info/guidelines-election-mps-representing-persons-disabilities-pwds (last visited June 2, 2023).

[83] Id.

[84] See Ugandan Const. art. 80.

[85] A.U. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, https://au.int/sites/default/files/treaties/36440-treaty-protocol_to_the_achpr_on_the_rights_of_persons_with_disabilities_in_africa_e.pdf (last visited Mar. 23, 2023) [hereinafter “ADP”].

[86] A.U. Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, art. 16(d), https://www.achpr.org/news/viewdetail?id=129 (last visited Oct.  9, 2023).

[87] U.N. Working Group, Compilation of Proposals for Elements of a Convention (5-16 January 2004), https://www.un.org/esa/socdev/enable/rights/comp-element6.htm (last visited Mar. 21, 2023).

[88] ADP, supra note 84, at art. 21(2)(D).

[89] Majority-Minority Districts, Ballotpedia, https://ballotpedia.org/Majority-minority_districts (last visited on June 4, 2022).

[90] Willi Horner-Johnson, Disability, Intersectionality, and Inequity: Life at the Margins, in Pub. Health Persp. on Disability 91, 95–103 (Donald J. Lollar et al. eds., 2d ed. 2021).

[91] E.g., International Covenant on Civil and Political Rights of 1966, art. 27; Indigenous and Tribal Peoples Convention of 1989; and U.N. Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities of 1993.

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Content, Online Scholarship, Perspectives

Missing Questions in the ASEAN Human Rights Court Narrative

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.

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*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.

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