Sovereignty Over Rights? Realism and Regime Theory Analysis of the ASEAN Intergovernmental Commission on Human Rights

The reasons why states come together and create regional or international human rights institutions have puzzled scholars of both international law and international relations. In many ways, it does not make obvious sense for states to create such institutions: their focus is not on interstate relations but instead on the domestic relationship between a state and its citizens, and they impose sovereignty costs without conferring obvious benefits. In response to this theoretical puzzle, a number of theoretical propositions have been suggested in the literature. The newly-established ASEAN Intergovernmental Commission on Human Rights (AICHR) offers a topical case study to test which theory can best explain the creation of interstate human rights mechanisms. Not only does this article analyse why ASEAN member states created the AICHR, but also seeks to link this ‘why’ question to our understanding the regime design of the AICHR. This article thus takes four major features of the AICHR and illustrates how our understanding of their efficacy depends upon how we understand the reasons why ASEAN created this body in the first instance. While this article concludes that the complex matrix of forces at play in ASEAN make it impossible in practice to advance a generalised theory for why states create interstate human rights institutions, ASEAN's intense interest in conforming to global cultural scripts illustrates how regional human rights institutions have become a ‘normal’ part of the regional community-building process.

In 2009 ASEAN established a human rights body—the ASEAN Intergovernmental Commission on Human Rights (AICHR)—and tasked it with promoting and protecting human rights in Southeast Asia within ASEAN’s framework of cooperation and to encourage member states to ratify international human rights treaties and act in accordance with them. AICHR has ten Representatives, one for each ASEAN member, and these individuals are tasked with fulfilling AICHR’s mandate. In this article, we utilise the mechanisms and scope conditions contained in the revised Spiral Model to assess the opportunities and challenges that exist in aiding and frustrating their attempts to fulfil AICHR’s mandate to promote and protect human rights. Although routinely dismissed as irrelevant in the fight for human rights in Southeast Asia, we identify that there are reasons for cautious optimism that some Representatives are making headway in making AICHR fit-for-purpose.

ASEAN Intergovernmental Commission on Human Rights (AICHR) was established in 2009. Its main functions are to promote and to protect human rights and fundamental freedoms of the people of ASEAN. Since the beginning of its formation, AICHR has been criticized for being a toothless institution. This is because of the weak nature and power given to this body. This paper analyzes what the future lies for AICHR. Will it continue to become a partial human rights mechanism or will it transform into an independent human rights body. It is argues that several factors will determine the future of AICHR. Firstly, is the ability of AICHR in internalizing human rights norms. Secondly, is the commitment of ASEAN countries to human rights promotion and protection. Thirdly, is the endless endeavor coming from civil society not only criticizing but also supporting AICHR. The structure of this paper is as follows. The first section elaborates theories on why states join or signing human rights regime or treaties. This will be followed by providing a brief profile of ASEAN and emphasizing on the organization norms. Next, the paper explains the anatomy of AICHR and provides brief comparison between AICHR and several regional human rights systems. The origin and the development of AICHR are discussed in the next section, followed by analyzing the future of AICHR.

This study analyzes how the ASEAN Intergovernmental Commission on Human Rights (AICHR) functions as an outcome of limited norm localization in the protection of human rights for the Rohingya ethnic group. Employing Acharya’s (2004) norm localization theory, the study traces the process of adapting global human rights norms into the ASEAN framework, which faces challenges due to the principles of non-interference and state sovereignty among member countries. The findings reveal that although AICHR was established to promote and protect human rights, it faces structural and functional limitations. its consultative mandate, absence of investigative mechanisms, and the dominance of the ASEAN Way, particularly consensus and non-intervention, render AICHR ineffective in responding to the Rohingya crisis. Analysis through the four stages of localization (contestation, local initiative, adaptation, and amplification) indicates that AICHR functions more as a symbolic commitment to human rights within ASEAN rather than as a genuine protective mechanism. The study concludes that without mandate reform and adjustments to ASEAN principles, AICHR will continue to fall short in addressing systematic human rights violations such as those experienced by the Rohingya. This implies the need for a redefinition of global human rights norms that are more contextually grounded in regional values

ABSTRACTThis paper examines the role of international human rights institutions and their designs by bringing to bear evidence from the ASEAN Intergovernmental Commission on Human Rights (AICHR). It draws attention to the distinction between the protective and the promotional design aspects of this institution, showing that the AICHR is, by design, not a protective mechanism. The paper argues, however, that the significance of the AICHR’s promotional function should not be dismissed. The paper identifies a number of promotional initiatives that the AICHR has undertaken in its first ten years of operation, including developing regional human rights standards, spreading human rights norms and facilitating dialogues and debates across ASEAN on the rights of women, children and persons with disabilities. The promotional work of the Commission, albeit still limited in scope, can provide the initial foundation for the long-term goal of building a protective human rights mechanism for Southeast Asia.

The ASEAN Intergovernmental Commission on Human Rights (AICHR) is often regarded unfavourably, depicted at best as irrelevant in the battle to promote and protect human rights in Southeast Asia, and at worst, complicit in the abuse of human rights by its silence in the face of the region's human rights' tragedies. While AICHR has many limitations, we regard it as a work-in-progress, evolving as it was always meant to. To understand this evolution, we conceive of AICHR as a participatory space in which contestation of what AICHR can, and cannot, do is being undertaken by its Representatives. This contestation includes exposing its secretive face of power by revealing: the space human rights can be discussed in; who can participate and who is excluded in this discussion; and how malleable the norms that operate within this space are to change. The latter aspect of contestation engages with the thorny ‘problem’ of consensus. We argue that the presence of Representatives from outside of government has introduced a desire in AICHR for change; a dynamism that makes it a participatory space witnessing contestation that has the potential to enable AICHR to evolve. A space, therefore, that for all its shortcomings is worth watching.

ASEAN Intergovernmental Commission on Human Rights (AICHR)is an inter-governmental organization under the auspices ofASEAN, which focuses on human rights at the regional level.AICHR was established in 2009 and consists of 10representatives from each ASEAN countries. Broadly speakingAICHR has two primary mandates which are function to promoteand to perform protection against human rights.The general objective of this research is to describe AICHR as aregional human rights commission, and the specific objectives ofthis research are to describe and analyze the Inhibiting factors ofAICHR In Enforcement of Human Rights in Southeast Asia.Researcher used qualitative research methods and descriptiveanalysis research type. The technique of collecting primary datawas conducted through some interviews and secondary datacollection techniques by literature study. Researcher applied theapproach of Institutional Neoliberalism, the InternationalOrganization Theory, Regime Theory, and Concept of HumanRights as an analytical tool.In this research it can be concluded that there are four inhibitingfactors of the AICHR in Enforcement of Human Rights inSoutheast Asia, including Principles of ASEAN Way which thereare the principle of non-intervention and state sovereignty;Decision Making based on Consensus; Lack mandate of functionto protection in the ToR of AICHR; and the last, there are PoliticalInterests of Each Countries of ASEAN which includes DifferingViews of Each ASEAN Countries against Human Rights and theirCommitment to Human Rights.

The human rights mentioned in the Universal Declaration on Human Rights (UDHR) are universal values agreed upon countries in the world. This is reflected by the fact that no state rejects the United Nations General Assembly Resolution in 1948. It is even strengthened by the ratification of two major international human rights covenants, which have binding legal powers. They are the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights in 1966. European states are legally bound to human rights through the European Human Rights Convention that is signed in 1950 and come into force in 1953. On the other hand, ASEAN states are bound to human rights as parties of ICCPR, ICESCR, and their commitment to the regional level ASEAN Declaration of Human Rights. Both in European Union and ASEAN have their own human rights mechanisms: the European Court of Human Rights (ECtHR) and ASEAN Intergovernmental Commission on Human Rights (AICHR). This study employed a comparison method with a normative legal research approach to compare the human rights mechanisms in Europe and in ASEAN. It also deals with the implementation of human rights protection by the states in the two regional organizations. As a result, although the two regional organizations have human rights mechanisms applied in their areas, with experiences through cases appealing to European Human Rights Courts, Europe provides more assurance and legal certainty towards individuals when a state commit human rights violations against individuals. On the other hand, the AICHR, as the equal commission in ASEAN region, tends not to have sufficient legal power in handling human rights cases occurred in its territory.

This paper examines the ASEAN Intergovernmental Commission on Human Rights’ (AICHR) role in upholding human rights by using the perspective of the human rights regime theory. In this perspective, AICHR is still behind other regional human rights bodies, such as the Inter-American Commission on Human Rights (IACHR). The AICHR has passed the declaratory regime, but has not been in the stages of implementation or enforcement regime. Efforts from human rights proponents are expected to elevate the role of the AICHR.

The 2017 Rohingya ethnic’s mass massacre that happened in Rakhine states, Myanmar had been paid ASEAN attention in which ASEAN has established a specific body that can handle the concerning matters in this case. This body is called AICHR (ASEAN Intergovernmental Commission on Human Rights), with its particular function to address human rights issues to maintain the harmony between goals and principles of ASEAN Charter. Concerning ASEAN Charter, surely, AICHR is expected to align with the non-intervention principle of ASEAN. Consequently, it is inevitable for AICHR to undergo this mission with uncertainty to decide AICHR’s way to handle this case. Through using the qualitative research method in this paper, we could at least understand this case easily by being described enough from our collected data, then synchronously we could picture these two major ideas in this paper, namely AICHR and ASEAN Way whether in a partial or impartial technique to know how AICHR contribute while under the influence of ASEAN Way in this Rohingya Case, and to thoroughly solve this Rohingya case, it is our main goal to make this paper as considerable as possible to be discussed.

The Terms of Reference (TOR) of the ASEAN Intergovernmental Commission on Human Rights (AICHR) include a provision to allow the body to evolve by review every five years. There were huge expectations from civil society that this process would rectify the lack of a protection mandate for human rights. I argue that the TOR review should not be seen as the only way to enable AICHR to evolve. AICHR's evolution can also be accelerated through the development and implementation of its work plans and projects. Furthermore, the ability of AICHR's country Representatives to recognise political opportunities and to creatively interpret AICHR's TOR have significantly strengthened AICHR's ability to promote and protect human rights in the last ten years. Accordingly, this paper examines AICHR's scope and power as stated in its (unreviewed) TOR and the five-year work plans to promote and protect human rights in the region from 2009 to 2019. This paper applies qualitative data collection combining desk research, interviews with key actors, and my own experiences as a human rights activist advocating for human rights in ASEAN since 2008 and as the Representative of Indonesia to AICHR for 2019-2021.

The deliberation on a Southeast Asian human rights regime dates back to the 1993 World Conference on Human Rights in Vienna. From then, the emergence of an idea on regional institutional human rights development arose to address the absence of human rights mechanisms in the region. This chapter offers a critical analysis on the human rights institutional development in ASEAN. The initial focus of the chapter is on illustrating the step by step progress toward the establishment of an ASEAN human rights institution. This progress will lead to the understanding of how the demand for a human rights institution has been made by ASEAN. The arguments here are supported by the analysis of the Joint Communiqués of the ASEAN Ministerial Meetings (AMM) from 1993 to 2010 and the Workshop statements of the Working Group for an ASEAN Human Rights Mechanism (Working Group) which documents ASEAN elite’s official speeches and opinions. The analysis on this point demonstrates ASEAN’s attempt to build regional agents in terms of human rights. The principal-agent theory is applied to offer understanding on the logical relationship between member states (principal) and regional human rights institutions (agent). Institutional theory is applied with respect to the second point of this analysis, which is to scrutinize the creation of a human rights institution known as the ASEAN Intergovernmental Commission on Human Rights (AICHR). The functions of the AICHR are illustrated through an investigation of its mandates, work plans and statements of meetings since the year of establishment to clarify why regional human rights institutions have been vital and particularly how the AICHR has expanded its role and power over time to increasingly improve human rights in ASEAN.KeywordsHuman rightsRegional institutional developmentASEAN Intergovernmental Commission on Human Rights (AICHR)Principal-agent theory

The inauguration of the ASEAN Declaration of Human Rights was inseparable from criticism from several parties, especially human rights organizations both within and outside ASEAN member states. This paper focuses on the function and mandate of the AICHR (ASEAN Intergovernmental Commission on Human Rights) and its influence on the effectiveness of the fulfillment of human rights obligations ASEAN member states. The results showed that within its mandate AICHR there is no balance between the functions of promotion and protection function because of the ambiguity of vision for an ASEAN Human Rights set the standard, which is between universal standards and particularist that maintains the principle of "Asian values" and "non-interference". These different points of view led to the implementation of human rights obligations fulfillment by member states of ASEAN to be very varied

Citizens of ASEAN states appear to be increasingly involved, through Information Communication Technologies (ICTs), in pushing for greater openness and accountability of their political leaders and public institutions. In particular, ICTs afford citizens of ASEAN States and like-minded counterparts around the world in the human rights community to push for greater accountability of ASEAN’s human rights institutions. With the adoption of the ASEAN Charter in 2007, ASEAN states embarked on a process of crafting a regional ASEAN Intergovernmental Commission on Human Rights (AICHR), eighteen years after the World Conference on Human Rights in Vienna, Austria. While the World Conference had reaffirmed the universality of human rights, ASEAN states have moved grudgingly and gradually, egged on by greater global concern for human rights and by the pressures of globalization, towards the protection of human rights. The Terms of Reference (TORs) of the AICHR, adopted in July 2009 and favouring promotion rather than protection of human rights did not provide for an institutionalised role for the media. Subsequent drafting by AICHR of a proposed ASEAN Human Rights Declaration (AHRD) has excluded mainstream news media and civil society organizations (CSOs) from the process. In the absence of reporting and substantive reporting by most mainstream media in the region civil society, most importantly the new ICT based media, has played a vital role in seeking to advance the protection of human rights. This includes scrutiny of the specific rights that will be included in the forthcoming AHRD to ensure that international human rights standards are upheld and that ASEAN states honour their existing commitments under international instruments. The new media-environment provides a platform for a multitude of actors to disseminate human rights related information, to document human rights abuses and thereby enhance the protection of human rights in the region.

The institutional gap of regional human rights mechanisms in Asia represents a notable inconsistency with the global trend of human rights protection. Recently, efforts to promote regional cooperation have finally begun to move forward. The first governmental human rights institution, the ASEAN Intergovernmental Commission on Human Rights (AICHR), began to operate in 2010. This article investigates this important development. Additionally, a historical review of various attempts for regional human rights protection in Asia is included. My examination shows a different path toward regime formation in Southeast Asia versus other regional counterparts. This article notes that the creation of AICHR has been deeply entangled with the development of ASEAN. Research suggests AICHR would not have emerged without the support of ASEAN, and that its capacity and future prospect is significantly constrained by the institutional framework of the association.