ASEAN member states appear poised to enter a new human rights regime mechanism by setting up a foundation framed under the ASEAN declaration on human rights.
Aside from several criticisms conveyed by pundits and human rights activists around the region in relation to the substance of the rights preserved, such a step could be regarded as advanced goodwill in protecting human rights among ASEAN states.
But one might question if it is necessary for ASEAN to create its own human rights protection mechanism. Wouldn’t it be superfluous to create a stronger regional body while human rights protection works more effectively and legitimately under national authority rather than international authority?
Questioning a regional human rights protection mechanism might stem from an understanding that the system of international relations is state-centered both in character and function. Dated back to the 16th century, Jean Bodin, in his best-known work Les Six Livres de la Republique, conceptualizes the state’s sovereignty as the highest authority, hence denying any higher authorities outside the state.
Such logic is apparently also applied to international law in practice. The International Tribunal for the Former Yugoslavia (ICTY) subpoena decision in the Blaskic case, for instance, stated that, “the international community primarily consists of sovereign states; each jealous of its own sovereign attributes and prerogatives, each insisting on its right to equality and demanding full respect, by all other states, for its domestic jurisdiction.”
From the tribunal’s suggestion, we can assume that equal sovereignty is a right and shall be respected among states. Consequently, a state may invoke such exclusive rights in entering into international relations with other states.
Furthermore, the ICTY in the Blaskic case also argued that “under customary international law, states, as a matter of principle, cannot be ‘ordered’ either by other states or by international bodies.” At this point, how can we rely on human rights protection in the proposed ASEAN human rights protection regime while member states cannot intervene in the internal issues of other states? Should we rely on member states’ goodwill to fulfill this obligation reciprocally?
One should bear in mind, however, that the reciprocal conduct of member states in international relations relates to how an international system may pose sanctions against state(s). Again, I quote the Blaskic case that, “under current international law states you can only be the subject of countermeasures taken by other states or of sanctions visited upon them by the organized international community, i.e., the United Nations or other intergovernmental organizations.”
Hence, it would be plausible that the proliferation of international and regional human rights norms and bodies, the invocation of humanitarian intervention and the emerging discourse of the responsibility to protect concept, all seem to support the above mentioned argument.
In this sense, it is thus undeniable that the concept of human rights and dignity has indirectly created a common interest of world citizens. Such a moral foundation of present international law, nevertheless, could be best described under a liberal cosmopolitan point of view.
By following such perspectives, Fernando Téson separates liberal cosmopolitanism into three assumptions.
“First, persons have equal rights and freedom, and the major justification of the political power of states as well as other institutions.
“Second, all human beings equally possess these rights and freedoms. Not merely the members of particular states or of particular ethnic, religious or other groups.
“Third, the protection of individual rights and freedoms is a concern for all individuals, states and national and international organizations alike.”
Departing from this moral reasoning, I would argue that the future ASEAN human rights protection regime ought to be seen from such point of view, as it endorses member states not to merely bring peace among the region, but instead, to work hand-in-hand to create justice for every individual in the region.
Under the drafted ASEAN declaration on the human rights framework, member states consequently shall not base their involvement solely on pursuing the national interest unilaterally, but rather on a non-reciprocal common interest in protecting human rights.
Moreover, if the member states are convinced that the establishment of an ASEAN human rights protection mechanism may help to ensure human rights protection, they ought to ensure the effectiveness of the functioning of the current human rights body, because otherwise, such common commitments shall be superfluous.
The current ASEAN human rights body should have a distinct will apart from each member state’s interest. To be more specific, legally speaking, the future the ASEAN human rights protection mechanism shall endow the human rights body with the authority to justify human rights protection, as the International Court of Justice once opined in the World Health Organization’s nuclear weapon advisory opinion, that “the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.”
Such a “certain autonomy” of a “future” ASEAN human rights body should be able to ensure human rights protection effectively, which to some extent covers the justifiability of the rights. Hence, the impact of such logic would be quite obvious.
Overall, under a human rights regime, sovereignty apparently would no longer be sacrosanct. As Vaclav Havel once said at a NATO Summit in 2002, “human life, human freedom and human dignity represent higher values than state sovereignty.”
The writer is a researcher at the Human Rights Research and Development Agency in the Law and Human Rights Ministry. The opinions expressed are his own. -Harison Citrawan, Jakarta
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