Hao Duy Phan

THE ASEAN INTER-GOVERNMENTAL COMMISSION ON HUMAN RIGHTSAND BEYOND

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The Case for a Southeast Asian Court of Human Rights (SEACHR)

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ASEAN human rights cooperation and the ASEAN Inter-Governmental Commission on Human Rights (AICHR)

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Inclusive Approach

Selective Approach

Different Approaches to Regional Human Rights Cooperation in Southeast Asia: Inclusive vs. Selective

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-Institutionalization of HR cooperation framework-Development of HR norms at the regional level

AICHR2

ASEAN Inclusive Approach of HR Coop3

Proposal for a Selective Approach4

1 Major Aspects of the Case for SEACHR5

ASEAN Human Rights Cooperation11

Rights of Migrant Workers 2006

40 YEARS:Declarations

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Timeline Content

ASEAN Human Rights Cooperation

Before1990s

After1990s

A group of rights

Political# Legal

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Monitoring Body

Current: N/A

Future:ACWCR AICHR

AICHR (2009)

20072005

1995

1993

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“1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body.

2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.”

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1

Step forward in promoting universal human rights in the region (AICHR covers all ASEAN member states)

2

Step forward in moving the organizations from being state-centric to being more people-oriented, although at initial stage.

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HR cannot be considered as a solely domestic issue under ASEAN.At least, there is a forum on HR within ASEAN.

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ASEAN Human Rights Cooperation

The Evolution towards AICHR

ASEAN Charter

Human Rights Discourse

The Case of Myanmar

Indicators

AICHR

B

E

C

D

AStatus

Principles

MandatesAuthority

Decisions Composition

Survey Report

Do you think the AICHR will be a strong body?

Do you think the AICHRwill have the authority to issuebinding decisions?

Do you think the AICHRwill be an independent body?

APolitical Context

BDiversity

CASEAN’s Principles & Ways

Human Rights under ASEAN

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D

There is a group of nations that may be more ready than the other for a stronger HRM. They may want and have conditions to establish a more effective HRM that their people deserve to have. Realistically, they do not have to wait until the latter is ready.

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Inclusive Approach to ASEAN Human Rights Cooperation -> Necessitate a Different Approach of Human Rights Cooperation in Southeast Asia

AICHR(Inclusive)

1. Under ASEAN2. Subject to ASEAN Principles3. Promotional Mandates4. Government Representatives5. Consensus6. Political Statements7. Political Body

Proposed Mechanism(Selective)

1. Not Under ASEAN 2. Not Subject to ASEAN Principles3. Protective Mandates4. Experts Acting Independently5. Majority-Rule6. Binding Decisions7. Judicial Body

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Among others:- Offering authoritative interpretation and obligatory application. - Delivering stronger message, leading to a deeper understanding and more sensitive treatment of HR. - Assisting regional countries in addressing shortcomings of their national HRP.- Better influencing state behavior - causing national leaders to think more carefully -> prevention.- Raise awareness.- Building peaceful and rule-of-law SEA.

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Philippines

IndonesiaThailand

Timor-Leste

Malaysia

SEACHR

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Regional Cooperation

NGOs

NHRIs

Participation into Intl HR Framework

Human Rights Policy

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More Relaxed Understanding of NI

Receptiveness to Norm Changes

Positionin AICHR +ASEAN Charter

HR Initiatives

Political Statements

Legislature Role and Receptiveness

Political Will?

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Accession to/Ratification of International Human Rights Treaties

PROSPECTIVE MEMBERS

Active Participation in the Work of Global Human Rights Institutions

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NetworkNHRIs

1 KOMNAS HAM (Indonesia):

SUHAKAM (Malaysia)2

3 CHRP (Philippines)

KHAMAKAM SIT (Thailand)4

5 PROVEDOR (Timor-Leste)

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National NGOs

International NGOs: AI, HRW, ICJ, etc.

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Regional NGOs: Forum-Asia; SAPA, ATLASEAN; AHRC, etc.

Stronger Important

ASA MALPHILINDO ASEAN COMMUNICATION PROCEDURES SECURITY; AIR FORCE TRAINING PIRACY MILITARY INFORMATION EXCHANGE NAVAL/AIR FORCE EXERCISES

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Conditions + Interests + Political Will Selective Mechanisms

Europe Americas Africa

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1. Court (before Protocol No. 11: Court + Commission)2. Other bodies: European Committee of Social Rights, Commission

against Racism and Intolerance, Committee for the Prevention of Torture, Commissioner of Human Rights...

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1. Commission: OAS organ for all OAS member states.2. Court: optional.3. Other bodies: Inter-American Commission of women, Committee for the Elimination of All Forms of Discrimination against Persons with Disability...

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1. Commission: all AU member states.2. Court: optional.3. Other bodies: African Committee of Experts on the Rights and

Welfare of the Child.

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Lesson 1

All have regional human rights courts. IA - A began process to establish HR courts in an environment not entirely favorable for HR.

All started with a compulsory + optional approach.

All have multiple mechanisms.

Lesson 2 Lesson 3

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Is it necessary to establish SEACHR?

Most important factor?

Do you really believe that SEACHR can be a long-term possibility?

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Founding Treaty

Contentious Jurisdiction

Advisory Jurisdiction

Composition

Structure

Procedure

Enforcement

Funding + Administration

Relationship

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Treaty

SEACHR must be established by a treaty.

Treaty on procedural issues?

Treaty

Treaty

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Treaty on substantive rights and procedural issues?

States? AHRB + NGOs?

Cases

SEACHR

Individuals?

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1. Requirements

2. Numbers 4. Status

3. Terms

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StructureSingle Court or Chamber-divided?

FundingAdministration (Location, Language)

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-Bearing obligation to implement;- Reporting to Meeting of State Parties

- Issuing binding judgments;-Hearing on implementation;- Reporting to Meeting of State Parties

- Monitoring;- Adopting Resolution

SEACHR StatesMeeting of State Parties

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Political Will

Aware-ness

TechnicalResources

Money

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