Category Archives: asean

Updates from Burma

A few years ago, I wrote an op-ed discussing the African Union’s advances in protecting human rights on a regional level, and suggested ASEAN could learn from them. Did Aung San Suu Kyi read it? Probably not, but I found it interesting that she recently told a Philippine senator that ASEAN’s human rights involvement in Myanmar should be modeled on that of the A.U. She cited the A.U. in Cote d’Ivoire, which I hadn’t emphasized in my op-ed (at the time, SAARC and Zimbabwe seemed more relevant). Either way, I think she’s onto something in drawing the comparison to Africa rather than the E.U.

According to Democratic Voice of Burma, three men from Mon State who claim to have been tortured and arrested are petitioning the Supreme Court for their release. Of course, Burma’s Supreme Court doesn’t have a great track record on these types of cases. Still, the plaintiffs’ family members are taking an interesting approach. According to one:

“We are not looking to put the blame on anyone or to get compensation. As Buddhists, we just blame it on karma. We just want our loved one released from prison and the family of [San Shwe] be informed about his death so they can hold a funeral.

Basically, they seem to hope that they can at least get their loved ones released from prison if they promise not to threaten elite interests. It will be interesting to see if this approach works.

Unfortunately, the approach of several farmers in Kachin State seeking takings compensation did not work.  Yuzana construction company initially offered the farmers approximately $100 per acre of land. The farmers sued, obviously hoping to obtain more compensation. Instead, the court awarded less – just $8 per acre. This is a valuable and tragic lesson in the unpredictable nature of law and legal institutions in Burma.

In other news, according to Irrawaddy, Rangoon’s government bookstore started selling books containing the new parliamentary laws and bylaws yesterday, but almost immediately ran out. Despite disillusionment with the November 7 elections, it seems people want to understand the political process.

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China, ASEAN issue joint statement on legal assistance

According to Xinhua, late last month, China and ASEAN issued a joint statement declaring their intent to cooperate in the fight against organized crime. The statement came out of the China-ASEAN Prosecutors-General Conference, established in 2004 to provide prosecutors a regional forum to discuss mutual legal cooperation.

While the statement itself isn’t revolutionary, it could well be harbinger of changes to come. Some Western law and development specialists are already speculating that the emergence of China could change the rules of the game. Indeed, Western law and development assistance often comes with strings attached, whether a new institution or liberal ideology. China could offer legal assistance to non-democratic countries that seek to professionalize their services but have not desire to unleash an activist court. Indeed, in China the capacity and professionalism of judges has risen markably since Deng Xiaoping’s reforms in the early 1980s, but the Communist Party has retained effective political control over courts (indeed, China was criticized last year for appointing a party apparatchik as Chief Justice). For other countries in the region, including Burma and Vietnam, this combination might sound much more attractive than the American Bar Association’s Rule of Law Initiative.

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Can ASEAN Learn about Human Rights from Africa? Part Deux

Sorry I haven’t published much on the blog lately. I’ve been getting bogged down in Ph.D. applications and other work. I promise to have a few posts on Burmese legal history up soon. In the meantime, here is a revised version of my surprisingly popular article comparing ASEAN’s Intergovernmental Commission on Human Rights with Africa’s Human and People’s Rights Commission. It was recently published in the foreign policy newsletter PacNet.

PacNet #70A – Wednesday, Oct. 28, 2009

Can ASEAN Learn about Human Rights from Africa?Dominic J. Nardi, Jr. (freedom4@mac.com) is a visiting research fellow with the Governance Institute, a legal think-tank dedicated to promoting the rule of law. He has worked with human rights organizations in Southeast Asia and advised women’s’ rights NGOs in East Africa. In addition, he has a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS.

Even before its birth this past weekend at the 15th ASEAN Summit in Cha-am, Thailand, many commentators expressed disappointment with the ASEAN Intergovernmental Commission on Human Rights (AICHR). Human rights activists allege that ASEAN stripped the commission of any “teeth” in order to appease perennial human rights violators, such as Burma. Defenders counter that the result was a necessary political compromise in accord with the “ASEAN Way.” Indeed, measuring the AICHR against the European Court of Human Rights would seem unfair because Europe consists exclusively of liberal democracies. However, even when compared to the rest of the developing world, ASEAN still has much to learn about much about establishing an effective human rights body from – of all places – Africa.

Despite the continent’s many challenges, the African Union has developed a fairly advanced human rights system. During the 1980s, African leaders adopted the Banjul Charter on Human and People’s Rights. Since then, the region has also adopted treaties protecting children’s and women’s rights, as well as a charter on democratic governance. Africa’s human rights system exists not only on paper, but also has teeth: the African Commission on Human and People’s Rights. African Union member countries elect 11 commissioners for a six-year renewable term. These commissioners are independent from their respective governments and must be human rights experts of the “highest reputation.”

Impressively, the Commission has both the mandate and political will to rule against African governments for discrimination, censorship, arbitrary detention, torture, and a variety of other rights violations. In the late 1990s, the Commission ordered Nigeria’s military junta to release a journalist who had been arrested without a warrant and prosecuted in a military tribunal. In 2004, it ruled that the president of Guinea violated the Banjul Charter by inciting solders to evict, rape, and torture Sierra Leonean refugees. The Commission has interpreted African treaties broadly, proclaiming that a state of emergency does not justify violating human rights. It has even ventured into political disputes, condemning the king of Swaziland for prohibiting political parties. According to one study, African governments have either fully or partially complied with over 70 percent of Commission decisions issued between 1987 and 2003.

Admittedly, the African human rights system is far from perfect. The Commission has no independent enforcement mechanisms against those governments that refuse to comply. Also, the Commission’s docket has become backlogged as it only meets for two 15-day sessions each year. However, the Commission has taken important steps toward not only supporting individual human rights victims, but also promoting human rights norms throughout the continent. Despite Africa’s concern for national sovereignty after the horrors of European colonialism, many Africans now consider it appropriate to intervene in order to protect human rights. In 2005, the African Union even suspended Togo in response to an unconstitutional seizure of power, which convinced the government to call new elections. Moreover, the African Union is currently establishing an African Court of Justice and Human Rights with enforcement powers that will work alongside the Commission. As a result, according to Freedom House, Africans on the whole currently enjoy more civil and political freedom than Southeast Asians. While Africa still faces many challenges, human rights violations are no longer considered acceptable thanks in part to the African Commission on Human and People’s Rights.

By contrast, ASEAN has yet to adopt a regional human rights treaty and struggles to condemn gross rights violations committed by members. Unlike African human rights treaties, neither the ASEAN Charter nor the AICHR Terms of Reference detail specific rights, but rather list vague principles, such as “non-discrimination.” ASEAN’s human rights declarations only cover migrant workers and human trafficking. Furthermore, the AICHR will not be able to rely upon international human rights conventions because only two have been ratified by all ten members: the Convention on the Rights of the Child and Committee on the Elimination of Discrimination against Women. Thus, it is not even clear whether Southeast Asians possess the same human rights that Africans currently enjoy.

Moreover, the AICHR will not be nearly as strong as its African counterpart. It cannot hear individual complaints from ASEAN citizens whose rights have been violated. In addition, the Commission has no power to monitor or investigate abuses in ASEAN countries. Rather, its main function appears to be merely promoting human rights awareness. The Terms of Reference provides little guidance on the qualifications for commissioners – a far cry from the Africa Union’s requirement that its commissioners be human rights experts of the “highest reputation.” All of the commissioners appointed during the ASEAN summit were government representatives, except for those of Thailand and Indonesia. More ominously, should a commissioner become too vocal, the Terms of Reference allows the government to remove him at any time.

ASEAN and the Africa Union are two very different regions. Nonetheless, the comparison provides some useful lessons for the AICHR. First, a strong regional human body can coexist with political diversity, conservative cultures, and national sovereignty. The African Commission hears individual complaints from human rights victims who live under authoritarian governments. This may embarrass politicians, but has certainly not threatened the regimes of dictators such as Zimbabwe’s Robert Mugabe. It is likewise difficult to see how a stronger AICHR would topple Burma’s Than Shwe.

Part of the African Commission’s success derives from its application of nuanced legal interpretations to balance the concerns of sovereign governments with the imperative of protecting rights. For example, under the principle of exhaustion of local remedies, the Commission requires human rights victims to work within their country’s own justice system before appealing to the Commission. This allows governments the first chance to redress any rights violations and prevent embarrassing litigation. Moreover, the principle of progressive realization acknowledges that some governments may not have the institutional or financial capacity to implement all human rights immediately, but requires that they at least respect rights and remedy any violations.

Rather than formulating a similar compromise, ASEAN seems to have simply hid behind the mantra of the “ASEAN Way.” Indeed, the AIHRC got off to a poor start when the Thai Foreign Ministry refused to allow several civil society delegates to attend the Cha-am summit. As a possible path to compromise, Southeast Asian policymakers and human rights activists should study other regional human rights bodies, particularly Africa’s, in order to appreciate the variety of models available. ASEAN itself has admitted that the AIHRC is a “work in progress” and plans to review the Terms of Reference every five years. In the next draft, ASEAN could adopt the principles of exhaustion of remedies, progressive realization, or “ASEAN minus X” in order to strengthen the AICHR. Doing so will help create a stronger ASEAN Community and provide both ASEAN and its member governments more legitimacy in the eyes of their citizens. In fact, given Africa’s relative experience with human rights, perhaps we will soon see African Union legal advisors sent to Southeast Asia in order to help the AICHR comply with international human rights standards.

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ASEAN can take a leaf out of African Union

Here is a recent op-ed I wrote about ASEAN’s new Human Rights Body. It was published on Mizzima, as well as Bernama, Malaysiakini, and a few other news sites…

Mizzima News
Wednesday, September 16, 2009


As the Association of Southeast Asian Nations prepares to appoint its first set of human rights commissioners to the new ASEAN Human Rights Body at the 15th ASEAN Summit this October, the commission itself faces skepticism and uncertainty about its future. Human rights activists allege that ASEAN stripped the commission of any teeth in order to appease perennial human rights violators such as Burma.

Defenders counter that, given ASEAN’s concerns over national sovereignty (the infamous “ASEAN Way”), the result was a necessary political compromise. Indeed, comparing the ASEAN Human Rights Body to the European Court of Human Rights would seem unfair, given that Europe consists exclusively of liberal democracies. However, even if we look to the rest of the developing world, ASEAN still has much to learn about much about establishing an effective human rights body from – of all places – Africa.


Historically Africa has had more petty dictators, more xenophobic governments, more genocides, and more overall human rights problems than ASEAN. Despite these challenges, the African Union has developed a fairly advanced human rights system. During the 1980s, African leaders adopted the Banjul Charter on Human and People’s Rights. Since then, the region has also adopted treaties protecting children’s and women’s rights, as well as a charter on democratic governance. Africa’s human rights system exists not only on paper, but also has teeth: the African Commission on Human and People’s Rights.

African Union member countries elect 11 commissioners for a six-year renewable term. These commissioners are independent from their respective governments and must be human rights experts of the “highest reputation.” Impressively, the Commission has both the mandate and political will to rule against African governments for discrimination, free speech, arbitrary detention, torture, and a variety of other rights violations. When a military junta still ruled Nigeria in the late 1990s, the Commission ordered the government to release a journalist who had been arrested without a warrant and prosecuted in a military tribunal. Several years ago, it ruled that the Republic of Guinea violated the Banjul Charter by inciting solders to evict, rape, and torture Sierra Leonean refugees. The Commission has interpreted African human rights broadly, finding that a state of emergency does not justify violating human rights. It has even ventured into political disputes, condemning the government of Mauritania for dissolving the opposition party in 2000.

Admittedly, the African human rights system is far from perfect. The African Commission has no independent enforcement mechanisms. Some countries do comply voluntarily, but, even when governments refuse to, a favourable decision from the commission can constitute a powerful moral victory. Also, the Commission’s docket is backlogged since it can only meet for two 15-day sessions each year. However, the Commission has taken important steps toward not only supporting individual human rights victims, but also promoting human rights ideals throughout the continent. Despite Africa’s sensitivity over their national sovereignty after being colonized by Europe, many African governments now consider it appropriate to intervene in order to protect human rights. Last year, when Zimbabwe’s Robert Mugabe won an election through violence and fraud, the Southern African Development Community strongly criticized his actions and successfully pressured him to form a coalition government with the opposition. In 2005, the African Union even suspended Togo in response to an unconstitutional seizure of power, which convinced the government to call new elections. Moreover, the African Union is currently establishing a stronger African Court of Justice and Human Rights to hear human rights cases. As a result, according to the U.S. think-tank Freedom House, Africans on the whole currently enjoy more civil and political freedom than Southeast Asians. While Africa still faces many challenges, human rights violations are no longer accepted as the norm thanks in part to efforts of the African Commission on Human and People’s Rights.

By contrast, ASEAN has yet to adopt a single human rights treaty and struggles to condemn gross rights violations committed by its member. Unlike African human rights treaties, neither the ASEAN Charter nor the ASEAN Human Rights Body’s Terms of Reference detail specific rights, but rather list vague principles, such as non-discrimination and the rule of law. Thus, it is not even clear whether Southeast Asians possess the same human rights that Africans currently enjoy. Moreover, the ASEAN Human Rights Body will not be nearly as strong as its African counterpart. It cannot hear individual complaints from ASEAN citizens whose rights have been violated. In addition, the commission has no power to monitor or investigate abuses in ASEAN countries. Rather, its main function appears to be merely promoting human rights awareness. The ASEAN Terms of Reference also provides little guidance on the qualifications for commissioners – a far cry from the Africa Union’s requirement that its commissioners be human rights experts of the “highest reputation.” ASEAN’s commissioners will have no independence, serving merely as “representatives” of their respective governments. Should a commissioner become too vocal, the government can remove him at its discretion at any time.

ASEAN and the Africa Union are two very different regions, but nonetheless the comparison provides some useful lessons as ASEAN prepares to appoint the first human rights commissioners. First of all, a strong regional human body can coexist with political diversity, conservative cultures, and national sovereignty. The African Commission hears individual complaints from human rights victims who live under authoritarian governments. This may embarrass some politicians, but has certainly not threatened the regimes of dictators such as Zimbabwe’s Robert Mugabe. It is likewise difficult to see how a stronger ASEAN Human Rights Body would topple Burma’s Than Shwe. Indeed, part of the African Commission’s success derives from using nuanced legal interpretations to balance the concerns of sovereign governments with the imperative of protecting human rights. For example, it requires human rights victims to work within their country’s own justice system before appealing to the Commission. This allows governments the first chance to redress any human rights violations and save face.

Rather than trying to find a similar compromise, ASEAN seems to have simply hid behind the mantra of the “ASEAN Way.” Southeast Asian leaders should take a closer look at other regional human rights bodies, particularly Africa’s, in order to learn how to balance meaningful protection of human rights with national sovereignty. In the longer run, doing so will help create a stronger ASEAN Community and give both ASEAN and its member governments more legitimacy in the eyes of their citizens. In fact, given Africa’s relative experience with human rights, perhaps we will soon see African Union legal advisors sent to Southeast Asia in order to help the ASEAN Human Rights Body comply with international human rights standards.


http://www.mizzima.com/edop/commentary/2769-asean-can-take-a-leaf-out-of-african-union-.html

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