ASEAN Charter and Human Rights Body

ASEAN Charter and Human Rights Body

Talk by Prof Kevin Boyle and discussion with NGOs

on the ASEAN Charter and ASEAN Human Rights Body



Prof Kevin BoyleKUALA LUMPUR: A dialogue session was held with Prof Kevin Boyle on regional human rights mechanisms on 11 November 2008. It was jointly organized by Suaram and the Bar Council Human Rights Committee.

Prof Kevin Boyle has been teaching at the Human Rights Centre of University of Essex for many years. He is also a practising international lawyer and has extensive litigation experience before the European Court of Human Rights. 

Prof Kevin Boyle gave an account of the development of Human Rights in Europe as well as in the international arena. He posited that Human Rights developed as a result of increasing economic development. In the European Union, for example, the concept of the free market led to various side issues mushrooming, and it was out of these that the present development of human rights grew from the 1950s.

Nonetheless the present Human Rights position and machinery took about 40-50 years to evolve. He said this in response to questions from participants about the very low ambition being articulated by the High Level Panel with respect to the ASEAN Human Rights Body. The development of human rights was not the central element in the development of the European Union. Political union and economic integration were the key focus. But as a result of political union and economic integration, the question of Human Rights of this ever-expanding collection of nations, and its inhabitants, had to be addressed.

Even in the European Union, the development of the rights of individuals was not altogether speedy. For example, as recently as 1989 it was still optional for a member of the European Union to permit individual complainants to the European Court of Human Rights (ECHR). However that has since changed and the right of the individual to file a case against his own government has now been recognized and constitutes an integral part of the rights of a European resident. 

A parallel was drawn with the development of human rights within ASEAN, and the possibility of a simillar set of rights eventually arising for residents of ASEAN member countries was discussed. 

The development of a possible ASEAN human rights convention or charter was also considered by looking at the example of the Arab League and the Organisation of African States. In both these groupings, there was no attempt to define an Arab or African set of human rights situation. Both groupings accepted the universality of the Universal Declaration of Human Rights (UDHR). What instead occurred was to attempt to come up with indigenous expressions on how to give effect to the UDHR. However this attempt was interrupted by political considerations as countries tended to distort a well-crafted draft charter to suit their own needs. A similar problem was faced in respect of the African Charter on Human and People’s Rights. The resulting document contained too many loopholes and such loopholes gave rise to room for abuse. As such the Charter could not achieve its basic purpose.

Prof Boyle further gave an account of the development of the complaint mechanism in the European Union. Today all disputes were handled by the ECHR. 800 million people could now complain against a member state in this court. The court had the power to order financial compensation, restitution and even to make an order against a defaulting member state. However under the principle of complementarity a complainant must first exhaust all domestic remedies before he could take a case to the ECHR. Today the ECHR had become a victim of its own success. The ECHR was drowning with a backlog of over 100,000 cases to-date. As a result of the Russia-Georgia crisis, 2500 new individual cases had been filed. 

In addition to the ECHR, the Europeans had gone on to develop further conventions, for example on (the abolition of ) torture, a framework for the charter for protection of minorities and a European Charter on Protection of Languages.

The key issue was how such mechanisms could evolve in ASEAN. Human Rights in ASEAN would be affected by cultural, religious and political views. No doubt the struggle will be a tough one, but Prof Boyle saw Human Rights as getting stronger in ASEAN. He expressed great surprise however when told that Malaysia had not yet even signed the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. He also expressed disappointment that Malaysian judges were not giving full effect to the UDHR in their decisions. In his view, the principles of the UDHR were customary international law and did not require the prior adoption of domestic legislation to give it legal effect.

The example of the struggle and gradual development of Human Rights in Europe was a sign to those of us in ASEAN to persevere. After all, it was from little acorns that big oaks grew, he said.



Contributed by Rachel Vanuja Suppiah and Andrew Khoo, MALAYSIAN BAR COUNCIL


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