International human rights: prescription and enforcement

In September 1968 the Council of the League of Arab States created the Arab Commission on Human Rights. Its main purposes were to inform the Arab public about and otherwise promote human rights, not to monitor the human rights practices of the Arab states or to challenge their violations of human rights when found. Primarily the commission has been preoccupied with the rights of Arabs living in Israeli-occupied territories.

On May 22, 2004, however, the Arab League adopted the Arab Charter on Human Rights, which entered into force on March 15, 2008. The charter affirms the principles set forth in the International Bill of Human Rights—including, for example, the right to liberty and security of persons, equality of persons before the law, protection of persons from torture, the right to own private property, freedom to practice religion, and freedom of peaceful assembly and association.

At the same time, the charter does not prohibit cruel, inhuman, or degrading punishments, fails to extend rights to noncitizens in many areas, and authorizes restrictions on freedom of thought, conscience, and religion that exceed what is deemed permissible under international human rights law. Furthermore, the charter relegates many important rights issues to the discretion of national legislation—e.g., the death penalty against children and the rights of men and women in marriage.

Additionally, the charter affirms the principles set forth in the 1990 Cairo Declaration on Human Rights in Islam, a declaration of the member states of the Organisation of the Islamic Conference that provides an Islamic perspective on human rights and affirms that all the rights and freedoms mentioned in the declaration are subject to Sharīʿah, or Islamic law, stated in Article 25 to be “the only source of reference for the explanation or clarification of any of the articles of [the] Declaration.” Accordingly, though using universalist language akin to that found in the International Bill of Human Rights, the Arab charter is imbued with an “Islamic particularity.” It also expresses Arab concern regarding territorial disputes between Israel and the Palestinians. Thus, its controversial Article 2(3) provides that

all forms of racism, Zionism and foreign occupation and domination constitute an impediment to human dignity and a major barrier to the exercise of the fundamental rights of peoples; all such practices must be condemned and efforts must be deployed for their elimination.

The charter also provides for the election of a seven-person Committee of Experts on Human Rights, which is empowered to request and study reports and to submit its own findings to the commission. No other institutions or procedures for monitoring human rights are specified in the charter, however. In this sense as well as others, the Arab human rights system compares unfavourably with its European, Inter-American, and African counterparts.

Human rights in Asia

Despite efforts by NGOs and the United Nations, Asian states were at best ambivalent—and at worst hostile—to human rights concerns over many years, thus precluding agreement on almost all regional human rights initiatives. But in early 1993, anticipating the World Conference on Human Rights held in Vienna later that year, a conference of Asia-Pacific NGOs adopted an Asia-Pacific Declaration of Human Rights, and in 1998 another meeting of NGOs adopted an Asian Human Rights Charter. Both of these initiatives supported the universality and indivisibility of human rights. However, while the first initiative called for the creation of a regional human rights regime, the second urged instead the establishment of national human rights commissions and so-called “People’s Tribunals,” which would be based more on moral and spiritual foundations rather than on legal ones.

The states of Asia were slow to respond to these initiatives. Their positions were indicated at a UN-sponsored workshop in 1996, where the 30 participating states concluded that “it was premature…to discuss specific arrangements relating to the setting up of a formal human rights mechanism in the Asian and Pacific region.” The same states agreed, however, to “[explore] the options available and the process necessary for establishing a regional mechanism”—a promise that echoed a similar pledge made by ASEAN (the Association of Southeast Asian Nations) following the 1993 UN World Conference on Human Rights.

More than 14 years later, in November 2007, ASEAN’s 10 member states adopted the ASEAN Charter, which, following its entry into force in December 2008, gave ASEAN legal personality, established its organizational framework and procedures, and provided for a human rights body that would promote and protect human rights as signaled in the charter’s preamble, purposes, and principles. In October 2009 ASEAN’s member states formally established the ASEAN Intergovernmental Commission on Human Rights, and in November 2012 they adopted ASEAN’s first-ever Human Rights Declaration.

In Southeast Asia and around the world, however, ASEAN’s declaration has been greeted with skepticism. Many respected rights groups, including Amnesty International , criticized the declaration for being an unhappy compromise between ASEAN’s communist and noncommunist member state; for containing language both too broad and too restrictive to guarantee people’s rights; and for otherwise falling short of international human rights standards. Of particular concern were provisions that called for rights to be enjoyed in a “balanced” way, subject to “national and regional contexts” and deferential to “different cultural, religious and historical backgrounds,” thus challenging the quintessential universality of human rights. Additionally, critics challenged the declaration for having been drafted in a non-inclusive, non-transparent manner, and they faulted ASEAN’s charter for failing to mandate powers sufficient for its enforcement. Accordingly, they called upon ASEAN leaders to return the declaration to the ASEAN Intergovernmental Commission on Human Rights explicitly to redraft the declaration in an inclusive and transparent manner and in keeping with internationally recognized human rights law and standards.

Not to be overlooked, however, are other developments bearing upon human rights instruments and mechanisms in Southeast Asia, specifically in relation to particular groups of people. In January 2007 members of ASEAN adopted a common declaration in which they recognized the need for a new instrument to protect and promote the rights of migrant workers. In April 2010, the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children was inaugurated in Hanoi.