Transnational Mechanism in Asia

Transnational Human Rights Oversight Mechanisms around the World

Human rights mechanism and human rights instruments such as the Bill of Rights, Human Rights Charters were devised to ensure the protection of human rights in Europe, the Americas, and Africa across the regions. For instance, the Convention for the Protection of Human Rights and Fundamental Freedoms was adopted by the then newly formed Council of Europe on 4 November 1950. In 1959, the Convention established the European Court of Human Rights (ECtHR). From then onwards, the Court has enabled individuals, feeling their rights set forth in the Convention and its protocols violated by contracting states, to take cases to the Transnational ECtHR if they had exhausted all possible legal avenues open to them under statutory laws of that country.

Taking inspirations from European human rights mechanisms, countries in the Western Hemisphere adopted the American Convention on Human Rights, also known as the Pact of San José, on 22 November 1969. Those countries subsequently established the Inter-American Court of Human Rights (IACHR) on 22 May 1979 to interpret and oversee the provisions of the American Convention on Human Rights and to establish rules and procedures governing cases brought before the IACHR.

Modelled on the European Convention on Human Rights and the Pact of San José, the African Charter on Human and Peoples’ Rights was adopted by African countries on 27 June 1981. The African Commission on Human and Peoples’ Rights was established on 2 November 2 1987 to oversee the implementation of the Charter. The African Court on Human and Peoples’ Rights (ACHPR) was then set up in 2004.

Asia, the Sole Region lacks a Transnational Oversight Mechanism

Asia appears to be the sole region in the world that lacks a Transnational mechanism to advance the cause of human rights. The absence of a Transnational human rights system renders ordinary peoples, minorities, and disadvantaged and marginalized groups in the region vulnerable to human rights violations, abuses, and discrimination based on race, ethnicity, religion, gender, and sexual orientation or other status.

Efforts in Past Decades

ASEAN Intergovernmental Commission on Human Rights

Asian countries have proposed remedial measures to mitigate the effects. For example, member states of the Association of Southeast Asian Nations (ASEAN) established the ASEAN Intergovernmental Commission on Human Rights, operating through consensus, to promote regional cooperation on human rights. In mid-2012, the Commission drafted the ASEAN Human Rights Declaration (AHRD) to uphold rights. The declaration was then adopted unanimously by ASEAN member states on 18 November 2012. The AHRD, quite limited in scope, represents a top-down understanding of rights with little public consultation during the drafting process. Issues closely associated with the adoption of the AHRD, therefore, bring to minds the debate about the universality of human rights and Asian values raised at the 1993 World Conference on Human Rights held by the UN in Vienna.

To give credit where credit’s due, although the AHRD is not legally binding, it functions a rudimentary framework for talking about and thinking about human rights situations at a Transnational level and a point of departure in the history of Southeast Asia. In this regard, the adoption of the AHRD by ASEAN and the founding of the ASEAN Intergovernmental Commission on Human Rights should be seen as concerted efforts by state authorities to foster some sort of common commitments to rights in the region.

Asian Human Rights Charter, 1988

Unlike ASEAN’s top-down approach to human rights, non-governmental organizations adopted the Asian Human Rights Charter in Kwangju, South Korea on 17 May 1998. While this charter is not legally binding, its content and principles closely resemble the core international human rights treaties that had come before it. As indicated in Article 15.1 of the charter:

constitutions, and many of them have ratified international instruments on human rights. However, there continues to be a wide gap between rights enshrined in these documents and the abject reality that denies people their rights. Asian states must take urgent action to implement the human rights of their citizens and residents.

While it is true that the Asian Human Rights Charter makes no reference to the creation of an Asian Court of Human Rights, it is also the case that the former leaves open the possibility of the establishment of a regional human rights institution to defend basic rights. Article 16.2 is worth quoting at length:

Asian states should adopt regional or sub-regional institutions for the promotion and protection of rights. There should be an inter-state Convention on Human Rights, formulated in regional forums with the collaboration of national and regional NGOs. The Convention must address the realities of Asia, particularly the obstacles that impede the enjoyment of rights. At the same time it must be fully consistent with international norms and standards. It should cover violations of rights by groups and corporations in addition to state institutions. An independent commission or a court must be established to enforce the Convention. Access to the commission or the court must be open to NGOs and other social organizations.

Phrased differently, an Asian Court of Human Rights could have emerged as a possibility.

Push for quick adoption of the AHRD and a more nuanced formulation as embodied in the Asian Human Rights Charter were respective responses from governments and civil society organizations to the universal social and democratic aspirations of the people. An interregional mechanism can be set up and then function as a Transnational body to fight for the cause of human rights in the region if governments and civil society groups across the region are to be effectively mobilized and organized.

Serving as a forum of unofficial collaboration among regional non- governmental and governmental actors, the project of Asian Human Rights Court Simulation strives to highlight obstacles to progress toward human rights.

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