The last frontier of human rights protection: interrogating resistance to regional cooperation in the Asia-Pacific.

• Author: Saul, Ben

Abstract

Asia and the Pacific are the only regions in the world which are yet to establish cooperative regional mechanisms for the promotion and protection of human rights. This article briefly outlines the existing scope of human rights protections in the region. It then interrogates common explanations for the Asia-Pacific's reluctance to institutionalise regional protection of human rights, including that the region is too diverse for uniform standards; contrarily, that 'Asian values' differ from western 'international human rights standards'; that principles of sovereignty and non-intervention preclude external scrutiny; arid that Asians have a cultural preference for conciliation over adjudication, ruling out quasi-judicial methods for protecting human rights. This article draws upon the experiences of establishing regional mechanisms in the Americas, Europe and Africa to demonstrate that claims about the uniqueness of the Asian experience are often exaggerated or inaccurate. Asian exceptionalism on human rights questions is often more fruitfully explained as an expression of strategic policy choices by Asian governments to avoid strengthening human rights protections, rather than by any inherent truths about the unsuitability of rights and institutions to Asian traditions, values, diversity or cultural preferences. This article draws lessons from other regions concerning the prospects for regional and institutional cooperation on human rights in the Asia-Pacific, including as regards the establishment of regional charters, commissions and courts.

Introduction

While regional mechanisms for human rights protection were established in Europe in 1950, (1) the Americas from 1959, (2) Africa from 1981, (3) and among Arab States from 2004, (4) the Asia--Pacific has Long been the last frontier of regional cooperation. (5) Despite calls by Asian leaders in 1903 to 'explore the possibilities of establishing regional arrangements for the promotion and protection of human rights in Asia', (6) the Association of Southeast Asian Nations ('ASEAN') only committed to creating a human rights body in its Chatter of November 2007 and established the ASEAN Intergovernmental Commission on Human Rights ('AICHR') in October 2009. (7) Despite that significant step, the AICHR is entrusted with far fewer powers than the regional human rights bodies in the Americas, Europe and Africa. Beyond the limited club of South-East Asian States, there is no subregional mechanism for the Pacific, North and East Asia, or South Asia. Other intergovernmental networks in the region have devoted little attention to human rights, Whether through the South Asian Association for Regional Cooperation ('SAARC'), Asia Pacific Cooperation ('APEC'), Pacific Islands Forum ('PIF'), or Shanghai Cooperation Organisation ('SCO').

The purpose of this article is to interrogate common explanations for the Asia-Pacific's reluctance to institutionalise regional protection of human rights. Such explanations typically include that the region is too diverse to subscribe to uniform standards; contrarily, that 'Asian values' differ from western 'international human rights standards'; that principles of sovereignty and non-intervention preclude external scrutiny; and that Asians have a cultural preference for conciliation over adjudication, ruling out quasi-judicial methods for protecting human rights. This article examines these common explanations by drawing upon the experiences of establishing regional mechanisms in the Americas, Europe and Africa. The comparision with other geographical regions contextualises the debate in the Asia-Pacific and shows that claims about the uniqueness of the Asian experience are often exaggerated or inaccurate. Asian exceptionalism on human rights questions is often more fruitfully explained as an expression of strategic policy choices by Asian governments to avoid strengthening human rights protections, rather than by any inherent truths about the unsuitability of rights and institutions to Asian traditions, values, diversity or cultural preferences.

The article first briefly outlines the existing scope of human rights protections in the region before critically analysing common objection to the institutionalisation of human rights in the Asia-Pacific By considering the creation and characteristics of regional mechanisms in the Americas, Europe and Africa, the article draws lessons from those regions concerning the prospects for regional and institutional cooperation on human rights in the Asia-Pacific region.

Human rights protections in the Asia-Pacific region

In the absence of a regional human rights mechanism in Asia, the dual focus of human rights initiatives in countries in the region has been at the national and international levels. First, many countries in the region formally embed human rights (sometimes also including socio-economic rights) in their constitutions or in national legislation, and sometimes provide judicial remedies for their breach. (8) The New Zealand Law Reform Commission has highlighted the strategic advantage of focusing on existing strong constitutional protection of human rights at the domestic level. As most Pacific nations already have a bill of rights within their constitutions, these may provide a positive avenue for building local confidence and capacity to protect human rights. (9) Such an approach is equally applicable to countries in the broader Asian region. The problem, however, is not with formal legal protections, but access to them, in a region where lack of awareness about legal rights, obtaining legal representation and legal aid, access to courts, and enforcement of judgments are all frequent obstacles.

Second, an increasing number of States have established national institutions, such as human rights commissions, entrusted with a variety of functions in different contexts, from education and monitoring to complaints handling mechanisms. National commissions are capable of being sensitive to local circumstances, as in the Pacific. The New Zealand Human Rights Commission and the Pacific Islands Forum Secretariat have emphasised the importance of fostering the incremental growth of national human rights institutions in Pacific nations--as resources and capacity allow--as a first step in strengthening human rights protection in the region. (10) In practice, national institutions have been well supported since 1996 by the Asia Pacific Forum of National Human Rights Institutions ('APF'). (11) National institutions remain, however, of varying quality and some in the region (particularly the Pacific) do not meet the standards of the Paris Principles. (12)

Third, various countries in the region participate in the international human rights machinery of the United Nations (TN') system, including the Human Rights Council and treaty monitoring bodies. In general terms, these bodies play two main roles. The first is a 'policy' or 'political' role, by which these bodies develop awareness of human rights and, through political dialogue and the negotiation of international instruments, enhance their international protection. A second role is the more quasi-judicial function of the various treaty bodies in monitoring and 'enforcing' human rights standards. However, the ability of such bodies to perform this supervisory Function in the Asia-Pacific region may be limited by the low level of ratification of treaties--particularly in relation to acceptance of individual complaints mechanisms. (13)

In spite of this engagement with human rights at the national and international levels, governments in the Asia-Pacific region have long been reluctant to pursue regional cooperation on human rights issues, although the picture is more nuanced than is of thought. Regional institutions in the Asia-Pacific have tended to be smaller in membership, less ambitious in their mandates, and more tentative in their cooperation than those in other regions. Thus, ASEAN was founded with the limited aim to pursue economic cooperation and regional stability; APEC was designed to advance trade and economic matters; and SAARC was formed principally out of concern for economic and developmental matters, as well as less controversial social and political questions. Human rights vere nor seen as within the ambit of regional action, for reasons explained and critiqued in the next section.

Even so, it often happens that the limited mandates conferred upon organisations at their creation expand into new fields of activity over time In some cases, as with the European Union (EU), mandate creep has been transformative, as in the rapid movement from narrow economic cooperation to deep pan-European integration on a wide range of common political and social concerns. While developments in the Asia-Pacific region have not been as radical, institutional evolution is also part of regional history, with ASEAN, APEC and SAARC all widening the subject matter of cooperation over time. (14)

SAARC, for instance, has adopted conventions on specific human rights issues such as the trafficking of women and children, and on children's rights. (15) Many countries in the region also cooperate informally with the UN High Commissioner for Refugees, despite not being parties to the 1951 Refugee Convention. (16) Since the end of the Cold War, ASEAN has been unable to ignore the mounting pressure to protect human rights (17) and, to this end, has previously made a range of commitments in specific areas such as the rights of women, children, trafficked persons and migrant workers. (18) Under the ASEAN Charter, ASEAN now embraces not only economic, development and security cooperation, but also a commitment to democracy, good governance, the rule of law and human rights. It is also drafting a specific instrument on the right of migrant workers. Even APEC has moved beyond pure economic imperatives into certain political and security issues, (19) a...