Human Rights in the Asia-Pacific Region

Towards Institution Building

Hitoshi Nasu, Ben Saul, Hitoshi Nasu, Ben Saul

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136717086
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Asia-Pacific is known for having the least developed regional mechanisms for protecting human rights. This edited collection makes a timely and distinctive contribution to contemporary debates about building institutions for human rights protection in the Asia-Pacific region, in the wake of ASEAN's establishment in 2009 of a sub-regional human rights commission.

Drawing together leading scholarly voices, the book focuses on the systemic issue of institutionalising human rights protection in the Asia-Pacific. It critically examines the prospects for deepening and widening human rights institutions in the region, challenging the orthodox scepticism about whether the Asia-Pacific is "ready" for stronger human rights institutions and exploring the variety of possible forms that regional and sub-regional institutions might take. The volume also analyses the impediments to new institutions, whilst questioning the justifications for them. The collection provides a range of perspectives on the issues and many of the chapters bring interdisciplinary insights to bear. As such, the collection will be of interest to scholarly, practitioner, and student audiences in law, as well as to readers in international relations, political science, Asian studies, and human rights.

Part I

International institutions

1 The Engagement of Asia-Pacific States with the UN Human Rights Committee: Reporting and Individual Petitions

Ivan Shearer and Naomi Hart

Introduction

The commitments of states under international instruments declaring human rights are monitored in a number of ways. Most of those instruments contain provisions establishing committees of independent experts which periodically examine the reports submitted to them by the states parties.¹ More recently the UN Human Rights Council, which replaced the Commission on Human Rights in 2006, instituted the process of Universal Periodic Review (‘UPR’). This procedure surveys the observance of human rights in all UN member states, irrespective of their party status to particular treaty instruments, but does not replace the reporting obligations under those instruments. It is important to note also the unofficial monitoring mechanisms represented by the many non-governmental organizations active in the field of promoting human rights, at the national and international levels, which draw attention to breaches of them.

This brief study will examine the position of Asia-Pacific states in relation to their acceptance of the most general of the human rights treaty instruments, the ICCPR. Unlike its twin Covenant of 1966 relating to economic, social and cultural rights, which is aspirational and programmatic in nature, the ICCPR is largely peremptory in its declaration of traditional ‘negative’² human rights and fundamental freedoms and thus does not admit to a gradual implementation taking account of economic, social and cultural stages of development. This chapter will examine the record of their consequent acceptance of the obligation under the ICCPR to report to the Human Rights Committee at regular intervals on their implementation of the rights secured by the ICCPR. Account will also be taken of the acceptance by some of them of the additional obligations under the Optional Protocol to the ICCPR, allowing individuals to petition the Committee where they allege that a violation of the ICCPR has occurred for which no remedy has been given after the exhaustion of the domestic remedies available.

The Adherence of Asia-Pacific States to the ICCPR

There are (as of late 2010) 165 states parties to the ICCPR, representing 80 per cent of UN members and thus an impressive degree of recognition and acceptance of ICCPR rights and freedoms. The United Nations-defined region of Asia comprises 54 states and is the most heterogeneous and geographically sprawling of the five UN region groups, ranging as it does from Cyprus and the former ‘Asia Minor’ in the west to Fiji and other Pacific islands in the east (although anomalously excluding Australia and New Zealand).

As of February 2010, a total of 34 Asia Group states were parties to the ICCPR. As a proportion of the total membership of the Asia Group this measure of adherence (some 61 per cent) is lower than that of the other UN regional groups, and particularly low amongst the Pacific Island states. However, there has been a recent upward trend towards acceptance of the ICCPR.³ It should be noted that, although China is not a party to the ICCPR in respect of its entire territory, it has maintained the former colonial powers’ application of the ICCPR to Hong Kong (formerly British) and Macau (formerly Portuguese). France has also applied the ICCPR to its Pacific Island territories.

Rather than to attempt to assess the situation of human rights in the states of the entire Asia Group, it is intended to confine the present study to the area of the ‘Asia-Pacific’, as that region is more commonly regarded from a geographical perspective, ie North and South Asia, Southeast Asia, Australasia and the island states of the Pacific Ocean. Among this informal Asia-Pacific grouping of 38 states, the record of adherence to the ICCPR is not high: approximately 60 per cent. Of these Asia-Pacific states, 16 are non-parties to the ICCPR.⁴ A trend towards wider acceptance of the ICCPR, however, is evident through the recent ratifications by seven states since 2003.⁵

It is well known that some states in Asia have been reluctant to embrace international human rights standards and mechanisms because of a concern that human rights must be adapted to ‘Asian values’.⁶ Yet, it is worth recalling that recognition of cultural diversity goes back to the drafting of the Universal Declaration of Human Rights in 1947–48, where the composition of the drafting committee reflected considerable diversity⁷ and ensured that a purely Western perspective would not prevail. Indeed, the Chinese Vice-Chairman, Chang Peng-Chun insisted that the Declaration avoid an excessively Western orientation.⁸

During the Cold War, the influence of the European Convention on Human Rights of 1950 on the subsequent drafting of the ICCPR in 1966 may have served, however, to support a view of the ICCPR as reflecting ‘Western values’. At the Bandung Conference of African and Asian states in 1955, some states expressed hesitations about human rights, while the Premier of China, Chou Enlai, reserved China’s position towards the UDHR on the grounds that communist ‘People’s China’ had been excluded from the UN and had thus had no opportunity to participate in the drafting.⁹ When ASEAN was formed a decade later, there was no mention of human rights in its constitutive instrument. The ensuing division over ‘Asian values’ following the Bangkok Declaration in 1993 is well known, and has only eased somewhat with the ASEAN Charter of 2007 and the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR).

Whether there can be said to be a presently detectable Pacific Islands approach to human rights, or in particular to the international instruments proclaiming them, is for others to examine. At all events, the island states of the Pacific had not yet acceded to independence when these debates occurred in the Human Rights Commission between 1947 and 1966. Their record of adherence to the ICCPR, in particular, has been sparse: only Papua New Guinea, Samoa, and Vanuatu have become states parties.

The Human Rights Committee

The Human Rights Committee was established upon the entry into force of the ICCPR in March 1976, pursuant to article 28 of the ICCPR. It consists of 18 members, elected by the states parties to the ICCPR, for terms of four years. Members may be re-elected to further terms. Members of the Committee, ‘who shall be persons of high moral character and recognized competence in the field of human rights’, are proposed for election by their national states, but ‘serve in their personal capacity’. Article 28 further directs that consideration be given ‘to the usefulness of the participation of some persons having legal experience’.

Article 31 of the ICCPR provides that the Committee shall not include more than one national of the same state and that, in the election of the Committee, ‘consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems’. Asia has been relatively underrepresented in the composition of the Human Rights Committee. At present there are only two Asian members of the Committee, from India and Japan, and there have never been more than two Asian representatives at one time.¹⁰

The Human Rights Committee has three principal functions: (1) to receive reports by states parties on the measures they have adopted to give effect to the ICCPR (article 40); (2) to consider any complaint it may have received from one state party that another state party is not fulfilling its obligations (article 41); and (3) to consider communications from individuals that a state party has violated its obligations towards them personally, and that they have exhausted all available domestic remedies (Optional Protocol to ICCPR). The second of these functions has never been invoked.¹¹ A fourth function of the Committee is to issue General Comments on aspects of the ICCPR and the working methods of the Committee (article 40(3)).

The Reporting Record of Asia-Pacific States

Article 40 of the ICCPR requires all states parties, within one year of ratification or accession, to furnish an initial report on the measures they have taken to implement the ICCPR. Thereafter, periodic reports are to be supplied at such times as the Committee may request (usually at intervals of three to five years). The Committee then sets a date for the consideration of the report in the presence of a delegation from the state party, normally about 12 months after receipt of the report. The hearing may be held in Geneva or New York, and is open to the public. If the state party is grossly overdue in its reporting obligations, the Committee may consider the situation of human rights in that country in the absence of a report and/or the presence of a delegation, but then the hearing is private.¹² Following the oral hearing (which typically occupies three half-days for an initial report, and two half-days for periodic reports) the Committee publishes its Concluding Observations containing comments and recommendations.

The Committee obtains its information about human rights in each reporting state not only from the report of the state party itself but also from general UN sources, and from the reports or submissions of international and local NGOs. Information gathered from the latter sources is not automatically accepted as accurate but is put to the delegation of the reporting state during its oral examination for possible refutation, comment or explanation.

The standards of the ICCPR are applied evenly by the Committee in relation to all states parties and no differential standard is applied depending on economic, political, social or cultural circumstances. Attention is usually confined to the most serious matters of concern in the case of reporting states with a relatively low level of compliance with the ICCPR, while less serious matters may be taken up only in respect of the reports of those states that have attained a higher standard of achievement. The practice of the Committee is to restrict its observations and recommendations to less than 30 items.

Some Asia-Pacific states parties have been tardy in submitting their reports. For example, Afghanistan has submitted no report since it became a party to the ICCPR in 1983 (although its circumstances were exceptional). No initial reports, required within 12 months of ratification of the ICCPR, have been furnished by Bangladesh (which ratified in 2000), Indonesia (2006), the Macao SAR of China (1997) or Timor-Leste (2003). It would be unduly strict – and the Committee allows leeway – to demand the immediate fulfilment of their reporting obligations by states that have ratified only within the past three years, such as Lao PDR, Papua New Guinea, Samoa and Vanuatu.

The rest of the 21 Asia-Pacific states parties to the ICCPR have furnished one or more reports. The following summaries of the Concluding Observations of the Committee in relation to the reports of Asia-Pacific states illustra...

Table of contents

• Cover Page
• Half Title page
• Series
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Abbreviations
• Treaties and other international instruments
• List of Contributors
• Introduction Regional integration and human rights monitoring institution
• International institutions
• The Engagement of Asia-Pacific States with the UN Human Rights Committee: Reporting and Individual Petitions
• Human Rights Monitoring Institutions and Multiculturalism
• Challenges to a Human Rights Mechanism in the Asia-Pacific Region: The Experience of the Universal Periodic Review of the UN Human Rights Council
• Innovations in Institution-Building and Fresh Challenges: The Optional Protocol to the Convention Against Torture and the Convention on the Rights of Persons with Disabilities
• Chinese Practice in UN Treaty Monitoring Bodies: Principled Sovereignty and Slow Appreciation
• Regional institutions: evolving mechanisms
• Resistance to Regional Human Rights Cooperation in the Asia-Pacific: Demythologizing Regional Exceptionalism by Learning From the Americas, Europe and Africa
• Persistent Engagement and Insistent Persuasion: The Role of the Working Group for an ASEAN Human Rights Mechanism in Institutionalizing Human Rights in the Region
• ASEAN: Setting the Agenda for the Rights of Migrant Workers?
• Challenges for ASEAN Human Rights Mechanisms: The Case of Lao PDR from a Gender Perspective
• Transnational and national institutions
• The Role of Networks in the Implementation of Human Rights in the Asia Pacific Region
• Human Rights Commissions in Times of Trouble and Transition: The Case of the National Human Rights Commission of Nepal
• Corporate Human Rights Abuses: What Role for the National Human Rights Institutions?
• Rethinking Human Rights in China: Towards a Receptor Framework
• Index