Hitoshi Nasu - Ben Saul - Human Rights in The Asia-Pacific Region - Towards Institution Building-Routledge (2013)

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Human Rights in the

Asia-Pacific Region
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 institutionalizing 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.
Hitoshi Nasu is a lecturer in law at the Australian National University and a

deputy director of the Australian Network for Japanese Law (ANJeL). He is the
author of International Law on Peacekeeping (Martinus Nijhoff, 2009).
Ben Saul is an Associate Professor and Co-Director of the Sydney Centre for
International Law at the Faculty of Law, The University of Sydney, and a barrister
specializing in human rights law. He is the author of Defining Terrorism in International
Law (Oxford, 2006).
Routledge Research in Human Rights Law
Available titles in this series include: Forthcoming titles in this series include:
The Right to Development in The European Court of Human
International Law Rights in the Post-Cold War Era

The Case of Pakistan Universality in Transition
Khurshid Iqbal James A. Sweeney
Global Health and Human Rights Children and International Human
Legal and philosophical perspectives Rights Law
John Harrington and Maria Stuttaford The Right of the Child to be Heard
Aisling Parkes
The Right to Religious Freedom in
International Law Ensuring and Enforcing Economic,
Between group rights and individual rights Social and Cultural Rights
Anat Scolnicov The Jurisprudence of the UN Committee
on Economic, Social and Cultural Rights
Emerging Areas of Human Rights in
Marco Odello and Francesco Seatzu
the 21st Century
The role of the Universal Declaration of Human Rights Monitoring
Human Rights Mechanisms of the Council of
Marco Odello and Sofia Cavandoli Europe
Gauthier de Beco
The Human Right to Water and its
Application in the Occupied The EU as a ‘Global Player’ in
Palestinian Territories Human Rights?
Amanda Cahill Jan Wetzel
International Human Rights Law Vindicating Socio-Economic Rights
and Domestic Violence International Standards and Comparative
The effectiveness of international human Experiences
rights law Paul O’Connell
Ronagh McQuigg
Corporate Human Rights Violations
Human Rights in the Asia-Pacific Overcoming Regulatory Hurdles
Region Surya Deva
Towards institution building
Jurisdiction, Immunity and
Hitoshi Nasu and Ben Saul
Transnational Human Rights
Litigation
Xiaodong Yang
The Positive Obligations of the State
under the European Convention of
Human Rights
Dimitris Xenos
Human Rights in the
Asia-Pacific Region
Towards institution building
Edited by Hitoshi Nasu

and Ben Saul
First published 2011
by Routledge
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Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2011 editorial matter and selection: Hitoshi Nasu and Ben Saul,
individual chapters: the contributors.
The right of Hitoshi Nasu and Ben Saul to be identified as the authors of
the editorial material, and of the authors for their individual chapters, has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
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or in any information storage or retrieval system, without permission in
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explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
Human rights in the Asia-Pacific region : towards institution building /
[edited by] Hitoshi Nasu, Ben Saul.
p. cm. –— (Routledge research in human rights law)
ISBN 978-0-415-60254-9 (hardback)
1. Human rights—Asia. 2. Human rights—Pacific Area. 3. National
human rights institutions—Asia. 4. National human rights institutions—
Pacific Area. I. Nasu, Hitoshi. II. Saul, Ben.
KM572.H86 2011
341.4'8095--dc22 2011003142
ISBN13: 978-0-415-60254-9 (hbk)

ISBN13: 978-0-203-81572-4 (ebk)
Typeset in Baskerville
by Keystroke, Station Road, Codsall, Wolverhampton
Contents
Acknowledgements ix
Abbreviations xi
Treaties and other international instruments xiii
Notes on contributors xvii
Introduction: regional integration and human

rights monitoring institution 1
HITOSHI NASU
PART I
International institutions 15
1. The engagement of Asia-Pacific states with the UN

Human Rights Committee: reporting and individual
petitions 17
IVAN SHEARER AND NAOMI HART
2. Human rights monitoring institutions and

multiculturalism 37
NISUKE ANDO
3. Challenges to a human rights mechanism in the

Asia-Pacific region: the experience of the Universal
Periodic Review of the UN Human Rights Council 49
SHIGEKI SAKAMOTO
vi Contents
4. 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 64
SARAH MCCOSKER
5. Chinese practice in UN treaty monitoring bodies:

principled sovereignty and slow appreciation 87
WIM MULLER
PART II
Regional institutions: evolving mechanisms 105
6. Resistance to regional human rights cooperation in

the Asia-Pacific: demythologizing regional exceptionalism
by learning from the Americas, Europe and Africa 107
BEN SAUL, JACQUELINE MOWBRAY AND IRENE BAGHOOMIANS
7. Persistent engagement and insistent persuasion: the

role of the working group for an ASEAN Human Rights
Mechanism in institutionalizing human rights in the
region 127
TAN HSIEN-LI
8. ASEAN: setting the agenda for the rights of migrant

workers? 144
SUSAN KNEEBONE
9. Challenges for ASEAN Human Rights Mechanisms:

the case of Lao PDR from a gender perspective 165
IRENE PIETROPAOLI
PART III
Transnational and national institutions 183
10. The role of networks in the implementation of human

rights in the Asia Pacific region 185
CATHERINE RENSHAW
Contents vii
11. Human rights commissions in times of trouble and
transition: the case of the National Human Rights
Commission of Nepal 209
ANDREA DURBACH
12. Corporate human rights abuses: what role for the

national human rights institutions? 234
SU RYA DEVA
13. Rethinking human rights in China: towards a receptor

framework 249
MIMI ZOU AND TOM ZWART
Index 264
Acknowledgements
This book originated at the International Conference on Human Rights in the

Asia-Pacific Region: Towards Institution Building on 27–28 November 2009 held
at the Faculty of Law, The University of Sydney. The Conference was jointly hosted
by the Australian Network for Japanese Law <http://sydney.edu.au/law/
anjel/>, the Sydney Centre for International Law at Sydney Law School
<http://sydney.edu.au/law/scil/> and the Centre for Asian and Pacific Law at
the University of Sydney <http://sydney.edu.au/law/caplus/>, in partnership
with the Australian Human Rights Centre at the Faculty of Law, The University
of New South Wales <http://www.ahrcentre.org/>. Generous financial support
was provided for the Conference by Japan Foundation Global Program for
Intellectual Exchange Conferences and by the Sydney Law School. We are grateful
to those institutions for supporting the initiative which led to this book.
We also thank the Sydney Centre for International Law for its support in the
production of this book, particularly the Centre’s Administrator, Amber Colhoun;
its Student Editors (Fayzan Bakhtiar, Melanie Brown, Jesse Buckingham, Martin
Bernhaut, Jennifer Chen, Corey Karaka, Nikila Kaushik, Greg Mikkelsen, Patrick
Weller and Chadwick Wong); and its Interns (Emily Christie, Emma Hunt, Nithya
Ramesh and Andrew Yeoum). Ben Saul especially thanks his research assistant,
Naomi Hart, for her meticulous work. Finally, we thank the anonymous referees
of this book for their insights and suggestions.
Hitoshi Nasu, Canberra
Ben Saul, Sydney
October 2010
Abbreviations
ACJ Advisory Council of Jurists of the Asia Pacific Forum of National

Human Rights Institutions
ACMW ASEAN Committee on the Implementation of the Declaration on
the Rights of Migrant Workers
ACW ASEAN Committee on Women
ACWC ASEAN Commission of the Promotion and Protection of the
Rights of Women and Children
AICHR ASEAN Intergovernmental Commission on Human Rights
ALMM ASEAN Labour Ministerial Meeting
AMM ASEAN Ministerial Meeting
ANNI Asian Network of National Institutions for the Promotion and
Protection of Human Rights
APEC Asia Pacific Economic Cooperation
APF Asia Pacific Forum of National Human Rights Institutions
APT Association for the Prevention of Torture
ARF ASEAN Regional Forum
ASEAN Association of Southeast Asian Nations
AU African Union
CAT Convention against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination
against Women
CERD Committee on the Elimination of Racial Discrimination
CPRD Convention on the Rights of Persons with Disabilities
CRC Convention on the Rights of the Child
CSO Civil society organizations
ECHR European Convention on Human Rights
ICC International Coordinating Committee of National Institutions
for the Promotion and Protection of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of Racial
Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
xii Abbreviations
ICRC International Committee of the Red Cross
ICRMW International Convention on the Protection of the Rights of All
Migrant Workers
IDP Internally displaced persons
ILO International Labor Organization
IOM International Organization for Migration
MNC Multinational corporation
NGO Non-governmental organization
NHRI National Human Rights Institution
NPM National preventive mechanism
OAS Organization of American States

OAU Organization for African Unity
OHCHR Office of the High Commissioner for Human Rights
OPCAT Optional Protocol to the Convention against Torture
OSCE Organization for Security and Cooperation in Europe
PIF Pacific Islands Forum
SAARC South Asian Association for Regional Cooperation
SAR Special Administrative Region
SCO Shanghai Cooperation Organization
SLOM ASEAN Senior Labour Officials Meetings
TF-AMW Task Force – ASEAN Migrant Workers
UDHR Universal Declaration on Human Rights
UN United Nations
UNDP United Nations Development Program
UNIFEM United Nations Development Fund for Women
UPR Universal Periodic Review
VAP Vientiane Action Plan
Treaties and other
international instruments
Treaties
African Charter on Human and Peoples’ Rights, opened for signature 27 June
1981, 1520 UNTS 217 (entered into force 21 October 1986)
African Charter on the Rights and Welfare of the Child, opened for signature 11 July
1990, OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force 29 November
1999).
American Convention on Human Rights, opened for signature 22 November 1968,
1144 UNTS 123 (entered into force 18 July 1978).
Arab Charter on Human Rights, opened for signature on 22 May 2004, International
Human Rights Reports, 12, 2005, 893 (entered into force 15 March 2008).
Charter of the Association of Southeast Asian Nations, opened for signature
20 November 2007 (entered into force 15 December 2008), available at
<http://www.aseansec.org/21069.pdf> (‘ASEAN Charter’).
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted 10 December 1984, 1465 UNTS 85 (entered into force
26 June 1987) (‘CAT’).
Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, CETS No. 5 (entered into force 3
September 1953) (‘ECHR’).
Convention on the Elimination of All Forms of Discrimination against Women,
adopted 18 December 1979, opened for signature 1 March 1980, 1249 UNTS
13 (entered into force 3 September 1981).
Convention on the Rights of Persons with Disabilities, adopted 13 December 2006,
GA Res. 61/106 (2007), opened for signature 30 March 2007 (entered into force
3 May 2008) (‘CPRD’).
Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS
3 (entered into force 2 September 1990).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951,
189 UNTS 150 (entered into force 22 April 1954).
Cultural Charter for Africa, opened for signature 5 July 1976 (entered into force
19 September 1990).
xiv Treaties and other international instruments
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, adopted 26 November 1987, ETS No. 126 (entered
into force 1 February 1989).
European Convention on the Legal Status of Migrant Workers, opened for
signature 24 November 1977, CETS No. 93 (entered into force 1 May 1983).
European Framework Convention on the Protection of National Minorities,
opened for signature 1 February 1995, CETS No. 157 (entered into force
1 February 1998).
European Social Charter, opened for signature 18 October 1961, CETS No. 35
(entered into force 26 February 1965).
Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field of August 12, 1949, opened for signature
12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of August 12, 1949, opened for
signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).
Geneva Convention Relative to the Treatment of Prisoners of War of August 12,
1949, opened for signature 12 August 1949, 75 UNTS 135 (entered into force
21 October 1950).
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287
(entered into force 21 October 1950).
Inter-American Convention on the Elimination of All Forms of Discrimination
against Persons with Disabilities, opened for signature 6 August 1999, AG/Res.
1068 (XXIX-O/99) (entered into force 14 September 2001).
Inter-American Convention on the Forced Disappearance of Persons, opened for
signature 9 June 1994, 33 ILM 1529 (entered into force 28 March 1996).
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women, opened for signature 9 June 1994, 33 ILM 1534
(entered into force 5 March 1995).
Inter-American Convention to Prevent and Punish Torture, opened for signature
9 December 1985, OAS Treaty Series No. 67 (entered into force 28 February
1987).
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, adopted 18 December 1990, 2220 UNTS 3
(entered into force 1 July 2003).
International Covenant on Civil and Political Rights, opened for signature 19
December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
International Covenant on Economic, Social and Cultural Rights, opened for
signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976)
(‘ICESCR’).
International Convention for the Protection of All Persons from Enforced
Disappearances, adopted 12 January 2007, GA Res. 61/177 (2007) (not yet in
force).
Treaties and other international instruments xv
International Convention on the Elimination of All Forms of Racial Discrimination,
opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January
1969).
Migrant Workers (Supplementary Provisions) Convention, opened for signature
24 June 1945, ILO C143 (entered into force 9 December 1978).
Migration for Employment Convention, opened for signature 1 July 1949, ILO
C097 (entered into force 22 January 1952).
OAU Convention Governing Specific Aspects of Refugee Problems in Africa,
opened for signature 10 September 1969, 1001 UNTS 45 (entered into force
20 June 1974).
Optional Protocol to the Convention Against Torture, opened for signature 4

February 2003, 2375 UNTS 237 (entered into force 22 June 2006) (‘OPCAT’).
Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women, adopted 6 October 1999, 2131 UNTS 83
(entered into force 22 December 2000).
Optional Protocol to the Convention on the Rights of Persons with Disabilities,
adopted 13 December 2006, GA Res. 61/106 (2006), opened for signature 30
March 2007 (entered into force 3 May 2008).
Optional Protocol to the International Covenant on Civil and Political Rights,
opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23
March 1976).
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, adopted 10 December 2008, GA Res. 63/117 (2009), opened for
signature 24 September 2009 (not yet in force).
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts, opened for
signature 8 June 1977 1125 UNTS 3 (entered into force 7 December 1978).
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of Non-International Armed Conflicts, opened for
signature, 12 December 1977, 1125 UNTS 609 (entered into force 7 December
1978).
SAARC Convention on Combating and Prevention of Trafficking in Women and
Children for Prostitution, adopted 5 January 2002, available at: <http://www.
saarc-sec.org/userfiles/conv-traffiking.pdf>.
SAARC Convention on Regional Arrangements for the Promotion of Child
Welfare in South Asia, adopted 5 January 2002, available at: <http://www.
saarc-sec.org/userfiles/conv-children.pdf>.
Statute of the Council of Europe, adopted 5 May 1949, ETS No. 1 (entered into
force 3 August 1949).
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969,
1155 UNTS 331 (entered into force 27 January 1980)
xvi Treaties and other international instruments
Other international instruments
Bangkok Declaration on Irregular Migration, adopted at the International
Symposium on Migration, held in Bangkok, 21–23 April 1999, available at:
<http://www.smc.org.ph/rights/bangkok.htm> (‘1999 Bangkok Declaration’)
Cha-Am Hua Hin Declaration on the Intergovernmental Commission on Human
Rights, adopted by the ASEAN Heads of State and Governments at the 15th
ASEAN Summit in Thailand, 23 October 2009.
Final Declaration of the Regional Meeting for Asia of the World Conference on
Human Rights, UN Doc. A/CONF.157/ARSM/8-A/CONF.157/PC/59
(1993) (‘1993 Bangkok Declaration’)
Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, adopted

12 December 2005, available at: <http://www.aseansec.org/18030.htm>.
Principles relating to the Status of National Institutions for the Promotion and
Protection of Human Rights, GA Res. 48/134 (1993) (‘Paris Principles’)
Terms of Reference of ASEAN Intergovernmental Commission on Human Rights,
adopted in 2009, available at: <http://www.aseansec.org/DOC-TOR-AHRB.
pdf>.
Universal Declaration of Human Rights, GA Res. 217A (III) (1948).
Vienna Declaration and Programme of Action: Report of the World Conference
on Human Rights, UN Doc. A/CONF.157/23 (1993).
Vientiane Action Programme (VAP) 2004–10, adopted at Vientiane, Lao PDR,
30 November 2004, available at: <http://www.aseansec.org/VAP-10th%20
ASEAN%20Summit.pdf>.
Notes on contributors
Editors
Hitoshi Nasu is a lecturer at the ANU College of Law, the Australian National
University, teaching international law, international security law, international
humanitarian law, migration law and military operations law in the ANU
College of Law military law program. He is also a deputy director of the
Australian Network for Japanese Law (ANJeL). He holds Bachelor and Masters
degrees in political science from Aoyama Gakuin University and a Masters
degree and a PhD in law from the University of Sydney. He is the author of
International Law on Peacekeeping: A Study of Article 40 of the UN Charter (Martinus
Nijhoff, 2009).
Ben Saul is an Associate Professor and Co-Director of the Sydney Centre for
International Law at the University of Sydney, and a barrister. He has published
five books, 50 book chapters or journal articles and 150 other publications, and
delivered over 150 scholarly seminars and other public presentations. Ben has
taught law at Oxford, Sydney, UNSW, and in China, India and Cambodia,
and conducted training programmes for Iraq, Kuwait, Algeria, Laos, Nepal,
Bhutan, Korea and the Philippines. He has been involved in human rights cases
in South Africa, Peru, Bangladesh, Indonesia, Israel, Macedonia, Fiji and the
United States (including Guantanamo Bay), including before the International
Criminal Tribunal for the Former Yugoslavia, the UN Human Rights
Committee and the Inter-American Court of Human Rights. Ben is a member
of the International Law Association’s Committee for the Compensation of
Victims of Armed Conflict and President of the Refugee Advice and Casework
Service. He has a doctorate in law from Oxford University, and honours degrees
in Arts and Law from the University of Sydney.
Other contributors
Nisuke Ando is Emeritus Professor of Law at Kyoto University and the Director
of Kyoto Human Rights Research Institute. He was formerly Professor of
Law at Doshisha University (1998–2006), Kyoto University (1990–98), and
Kobe University (1981–90). He is also a member of the Permanent Court of
xviii Notes on contributors
Arbitration, a judge of the IMF Administrative Tribunal, and a membre titulaire
of the Institut de droit international. He served as a member of the UN Human
Rights Committee from 1987 until 2006 and as President of the Committee in
1993–94. His major publications include Surrender, Occupation, and Private Property
in International Law (Oxford University Press, 1991); Japan and International Law –
Past, Present & Future (Kluwer Law International, 1999); and Towards Implementing
Universal Human Rights (Martinus Nijhoff, 2004).
Irene Baghoomians is a lecturer at the University of Sydney Law School and
teaches international law, international human rights law and international
human rights advocacy. For over a decade, she has worked in the areas of public
interest and human rights litigation, policy and research. She graduated from
Sydney Law School in 1994 and has worked at the Australian Law Reform
Commission, the Department of the Prime Minister and Cabinet, and prior to
her departure for New York was a legal policy adviser at the Race Discrimination
Unit of the Australian Human Rights Commission (1998–2000). In New York,
she studied for an LLM at Columbia University Law School (2000–01), was
designated as a human rights fellow and upon graduation was granted a second
human rights fellowship which she spent at the Centre for Constitutional Rights
(CCR) – a non-profit legal and educational organization dedicated to protecting
and advancing the rights enshrined in the US Constitution and the UDHR. At
CCR, she worked on human rights cases litigated under the Alien Torts Claims
Act and civil rights statutes including Guantanamo Bay detainee cases until her
return to Australia in 2004.
Surya Deva is an Associate Professor and LLB Programme Leader at the School
of Law, City University of Hong Kong. He holds BA (Hons), LLB and LLM
degrees from the University of Delhi and a PhD from the University of Sydney,
and has taught previously at the Faculty of Law, University of Delhi and at
the National Law Institute University, Bhopal. His primary research interests
lie in Corporate Social Responsibility, Indo-Chinese Constitutional Law,
International Human Rights, Globalization and Sustainable Development. He
recently prepared a report entitled ‘Corporate Abuse and Human Rights: Access
to Justice in the People’s Republic of China’ for the International Commission
of Jurists. Surya is member of a research team that has been awarded a com-
petitive grant by the Norwegian Research Council on ‘Sustainable Companies:
How to Make Companies Contribute Effectively to Mitigate Climate Change?’.
He is also the Faculty Editor of the City University of Hong Kong Law Review.
Andrea Durbach is an Associate Professor and Director of the Australian Human
Rights Centre at the Faculty of Law, University of New South Wales. She was
educated in South Africa where she practised as a political trial lawyer and
human rights advocate before moving to Sydney in 1989. After working for a
large Sydney law firm, she joined the Public Interest Advocacy Centre, an
independent litigation and policy institute, as Head of Legal Practice and
subsequently Director, for 13 years. Andrea has held a number of appointments
Notes on contributors xix
including part-time commissioner of the NSW Law Reform Commission, part-
time member of the Administrative Decisions Tribunal, secretary of the Human
Rights Council of Australia and board member of the Diplomacy Training
Program. She is currently a member of the board of the NSW Legal Aid
Commission, the editorial board of the Australian Journal of Human Rights, and
member of the Advisory Council of Jurists of the Asia-Pacific Forum of National
Human Rights Institutions (APF). Her research focuses on access to justice and
public interest litigation; the implementation of economic, social and cultural
rights; reparations and the Stolen Generations; and the role and impact of
national human rights institutions in the Asia-Pacific region (the subject of a
three-year Australian Research Council funded project with the APF).

Naomi Hart is a final year Arts/Law student at the University of Sydney, having
undertaken Honours and received the Medal for History. She has been an intern
for the Sydney Centre for International Law, where her research focused on
compensation to the Stolen Generations, peacekeeping in the Pacific and
constitution-writing in Nepal. She is currently undertaking a placement at the
Australian Human Rights Commission, having previously worked at Redfern
Legal Centre and the Women’s Domestic Violence Court Assistance Scheme.
She has contributed to the Australian Year Book of International Law, Australian Journal
of Human Rights, Australasian Journal of American Studies and Indigenous Law Bulletin.
She is currently on the editorial committee of Sydney Law Review and is Research
Assistant to Dr Ben Saul.
Susan Kneebone is a Professor of Law and Deputy Director of the Castan Centre
for Human Rights Law at the Faculty of Law, Monash University, Victoria,
Australia. She teaches Forced Migration and Human Rights, International
Refugee Law and Practice, and Citizenship and Migration Law. She has
organized several conferences and workshops on these issues, made submissions
to public enquiries and frequently handles media enquiries. She is the author
of many articles on these issues and editor of several books, including Refugees,
Asylum Seekers, and the Rule of Law: Comparative Perspectives (Cambridge University
Press, 2009); New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn, 2007
– with F Rawlings-Sanaei); and The Refugees Convention 50 Years On: Globalisation
and International Law (Ashgate, 2003). She is also a Chief Investigator on two
Australian Research Council projects: Delivering Effective Protection to Victims and
Prevention of Human Trafficking in the Greater Mekong Sub-Region with Dr Sallie Yea
as a Senior Research Associate; and Law, Governance and Regulation of Intra-regional
Labour Migration in South East Asia: An Agenda for Protection and Development.
Sarah McCosker is a Principal Legal Officer in the Office of International Law
at the Commonwealth Attorney-General’s Department, where she works in the
International Security and Human Rights Branch as head of the International
Human Rights Section. Her fields of specialization in international law include
international dispute settlement, international human rights law and humani-
tarian law. She has Honours degrees in Arts and Law from the University of
xx Notes on contributors
Queensland, and two Masters degrees and a doctorate from the University of
Oxford. Her doctorate was on ‘Law and Diplomacy in International Dispute
Settlement’. At Oxford she taught public international law to undergraduate
students and to diplomats on the Oxford Foreign Service Programme, and was
Assistant Dean of Brasenose College. She also served as Associate Editor and
then Editor of the Oxford University Commonwealth Law Journal, and coordinated
Oxford Pro Bono Publico, Oxford’s group undertaking pro bono public interest
law work. She also previously worked in London at the Law Commission for
England and Wales.
Jacqueline Mowbray is a lecturer in the Faculty of Law at the University of

Sydney. She also teaches on the European Regional Masters in Democracy and
Human Rights at the Universities of Sarajevo and Bologna. Her research focuses
primarily on international law and legal theory, with a particular emphasis on
international human rights law. In particular, she has published on issues con-
cerning economic, social and cultural rights, including rights to food and
language. Jacqueline is a graduate of the Universities of Queensland (BA/LLB
(Hons)), Melbourne (LLM) and Cambridge (LLM (Hons)), and in 2008, she
completed her PhD at the University of Cambridge, using the theoretical
framework of Pierre Bourdieu to examine questions of international law and
language policy. She is admitted to legal practice in Victoria and in England
and Wales, and is presently an academic barrister at the New South Wales Bar.
Wim Muller is a researcher and PhD candidate at the European University
Institute in Florence, Italy. After studying history and law at Leiden University
in the Netherlands, he worked for the Dutch section of the International
Commission of Jurists, lectured in public international law at the universities of
Leiden and Amsterdam, and served as counsel for Bosnia and Herzegovina in
its cases before the International Court of Justice. He was a senior researcher
at the Human Rights Centre of the University of Essex in a project aimed at
combating torture in the People’s Republic of China before moving to Florence,
where he is now working on a doctoral thesis on the impact of the rise of China
on public international law, in particular the law on the protection of individuals.
He was formerly a member of the editorial board of the Leiden Journal of
International Law and is currently Editor-in-Chief of the European Journal of Legal
Studies.
Irene Pietropaoli works in Bangkok as a consultant for the legal programme of
End Child Prostitution, Child Pornography and Trafficking in Children for
Commercial Purposes (ECPAT) International. Previously she worked as a
human rights lawyer, with a focus on women and children issues for a number
of NGOs and international organizations in Lao PDR, Nepal, Costa Rica,
Bolivia and Spain. She has a LLM in International Human Rights Law from
the Irish Centre for Human Rights, National University of Ireland and a JD
from the University La Sapienza of Rome. She has published several journal
articles on gender and human rights issues.
Notes on contributors xxi
Catherine Renshaw is a Research Fellow in the Faculty of Law, The University
of New South Wales. Since 2008, she has been the director of a three-year
project based in the Faculty: ‘Building Human Rights in the Region through
Horizontal Transnational Networks: the Role of the Asia Pacific Forum of
National Human Rights Institutions’. Catherine has degrees in Arts and Law
from the Universities of Sydney and New South Wales and a Masters of
Law from the University of Sydney. She is admitted to practice as a solicitor in
the Supreme Court of New South Wales and the High Court of Australia and
has worked in private practice at Allen, Allen and Hemsley and Sparke Helmore
Solicitors, as well as in the Civil Law Section of the Legal Aid Commission of
New South Wales, where she specialized in anti-discrimination law. From 2003
until 2007 she held a lecturing position at the University of Newcastle.
Shigeki Sakamoto is a member of the UN Human Rights Council Advisory
Committee and Professor of International Law at the Graduate School of Law,
Kobe University. He is also a member of the International Committee on ‘Non-
State Actor’ in the International Law Association and an editor of the Japanese
Year Book of International Law. Formally he served as the President of the Japanese
Association of International Human Rights Law. He has been writing widely
in the area of international human rights law. His recent publications in human
rights law include Introduction to International Human Rights Law (Shinzansha, 2008);
International Human Rights and Constitution (Shinzansha, 2007); and International
Instruments on Human Rights (3rd edn, Toshindo, 2005).
Ivan Shearer is Emeritus Professor of Law at the University of Sydney. He is also
Adjunct Professor of Law at the University of South Australia, Adelaide. He
was formerly Challis Professor of International Law at the University of Sydney
1993–2003, and Professor of Law at the University of New South Wales
1975–92. He has served as a visiting professor at the United States Naval War
College, and at Indiana University, Bloomington. From 2001 until 2008 he was
a Member of the UN Human Rights Committee and Vice-President, 2007–08.
Professor Shearer has served as a judge ad hoc in the International Tribunal for
the Law of the Sea on two occasions, and as an arbitrator under Annex VII of
the United Nations Convention on the Law of the Sea in three cases. He is a
former president of the International Law Association, Australian Branch. His
principal research interests are the law of the sea, international law and the use
of force, international criminal law, international humanitarian law and human
rights.
Tan Hsien-Li is the Asian Society of International Law Research Fellow at the
Faculty of Law, National University of Singapore. Her first book, The ASEAN
Inter-Governmental Commission on Human Rights: Institutionalising Human Rights in
Southeast Asia, is forthcoming from Cambridge University Press. From 2007 to
2008, Hsien-Li was an APIC Ushiba Memorial ASEAN Fellow researching
Japan’s human security foreign policy and its impact on Southeast Asia. She is
also the NUS representative to the ASEAN Universities Network-Human
xxii Notes on contributors
Rights Education Network (AUN-HREN) and a key member of the NGO
Singapore Working Group for the Establishment of an ASEAN Human Rights
Mechanism (MARUAH). Hsien-Li’s research interests are public international
law, human rights, humanitarian law, peace and development and non-
traditional security studies in East Asia.
Mimi Zou is a Research Fellow at the Netherlands School of Human Rights
Research. She is the project coordinator of a research partnership with the
Chinese Academy of Social Sciences Institute of International Law and
Shandong University Human Rights Research Centre. She also teaches
undergraduate and postgraduate classes in international human rights law and
comparative constitutional law at Utrecht University. Prior to this role, Mimi

has had extensive experience working in China and the Asia-Pacific as a lawyer
and legal consultant for a number of law firms and international organizations.
She holds first class honours degrees in law, economics and social science from
the University of Sydney. She is currently a BCL/MPhil candidate at the
University of Oxford.
Tom Zwart is Professor of Human Rights at the Faculty of Law, Economics and
Governance of Utrecht University. He is also Director of the Netherlands School
of Human Rights Research, which was established by five leading Dutch uni-
versities and consists of around 200 researchers from diverse disciplines. He
specializes in human rights protection and promotion in Asia and Africa, the
relationship between international criminal law and local peace and justice
initiatives, and human rights and traditional values. He has been a visiting
scholar at numerous law schools around the world including Cambridge,
Sciences-Po, Tsinghua, Chinese People’s Public Security University, Sydney,
Melbourne and the Australian National University. He has advised national
and international governmental bodies on human rights, including the EU, the
Council of Europe and the UN Human Rights Council. Prior to taking up his
position at Utrecht, he served as Head of the European and Legal Affairs
Department of the Dutch Home Office, and as senior counsel to the Dutch
Deputy Prime Minister.
Introduction
Regional integration and human
rights monitoring institution
Hitoshi Nasu
Background
On 4 June 2008, the then Australian Prime Minister, Kevin Rudd, announced his
vision for an Asia-Pacific community to span the entire Asia-Pacific region
(including the United States, Japan, China, India, Indonesia and others) and engage
in the full spectrum of dialogue, cooperation and action on economic, political and
security matters.1 On 27 August 2009, a different vision for a regional community
was expressed by the then Japanese Prime Minister, Yukio Hatoyama, who
emphasized economic integration among the East Asian countries (including
ASEAN, Japan, China, South Korea and Taiwan).2 Both of those visions were
subsequently discussed and noted in the 4th East Asia Summit on 25 October
2009.3
What motivates regional integration remains controversial.4 Some argue that
shared regional values and norms, and a collective regional identity, are essential
preconditions of any successful and sustainable regional institution-building.5 By
the same token, Frost argues that the construction of Asian regionalism requires
the same mental and emotional construction of an ‘imagined community’ as
1 K. Rudd, ‘It’s Time to Build an Asia Pacific Community’, address to the Asia Society AustralAsia
Centre, Sydney, June 2008, available at: <http://www.pm.gov.au/node/5763> (accessed 12
March 2010).
2 Y. Hatoyama, ‘A New Path for Japan’, New York Times, 26 August 2009, available at: <http://
www.nytimes.com/2009/08/27/opinion/27iht-edhatoyama.html> (accessed 23 September 2010).
3 C. Hin, ‘Chairman’s Statement of the 4th East Asia Summit’, Thailand, October 2009, available
at: <http://www.15thaseansummit-th.org/PDF/25-08_EAS%20Statement.pdf> (accessed 12
March 2010).
4 ‘Regions’ in international relations are often not geographically defined, but are rather regarded
as socially-constructed entities. See F. Frost, ‘Australia’s Proposal for an “Asia Pacific
Community”: Issues and Prospects’, Parliament of Australia, Parliamentary Library Research
Paper No. 13 (2009), fn 2, available at: <http://www.aph.gov.au/library/pubs/rp/2009-
10/10rp13.pdf> (accessed 12 March 2010). This volume’s approach to the definition of the ‘Asia-
Pacific region’ will be discussed later.
5 See, eg, N. Slocum-Bradley, ‘Regional Integration, Identity and Culture’, in A. Kösler and
M. Zimmek (eds), Elements of Regional Integration: A Multidimensional Approach, Baden: Nomos, 2008,
p. 241.
2 Human rights in the Asia-Pacific region
required by nationalism in sovereign states.6 Others, however, emphasize the
importance of discourse and the role that institutional frameworks can play in the
development of discourse within the social environment.7
In the Asia-Pacific region, it is generally believed that cultural diversity and the
lack of shared regional identity make it difficult to achieve regional integration. On
the other hand, Asia-Pacific states may have a strong incentive to create regional
institutions in order to enhance their political legitimacy and to assist their own
state-building processes.8 The former Australian Prime Minister Rudd’s proposal
was reportedly aimed at overcoming the compartmentalization of existing regional
institutions such as APEC (focusing mainly on trade liberalization) and the ASEAN
Regional Forum (‘ARF’) (dealing with regional security and confidence-building).9

The former Japanese Prime Minister Hatoyama also points to other major factors
in accelerating regional integration in East Asia, such as the concerns shared by
neighbouring countries about regional stability, ensuring the orderly expansion of
the Chinese economy, and restraining US political and economic excesses in the
area.10
Whatever the driving forces might be, any moves towards regional integration
should be subject to close scrutiny so that they take place in harmony with the
principles and rules of general international law, particularly basic human rights
norms. The primary factors driving regional integration may well be political,
economic or other strategic interests, which could be pursued by states with little
interest in enhancing human rights. Regional integration driven by those pragmatic
national interests could easily become a way to circumvent the need to address
human rights as a priority over other regional issues.11 One of the hypotheses
underlying this book is that regional integration in the Asia-Pacific is necessarily
influenced by, and interacts with, the existing and emerging human rights moni-
toring institutions at the international, regional and national levels.
However, resistance to a strong form of human rights monitoring remains
prevalent in many countries across the Asia-Pacific region. Most illustrative is the
assertion of ‘Asian values’, with its attack on the discourse of the universality of
human rights, that has presented challenges to building regional human rights
monitoring capacity. The gist of this claim is that human rights as propounded in
6 E. Frost, Asia’s New Regionalism, Boulder: Lynne Rienner Publications, 2008, p. 106.
7 See, eg, M. Timmermann, ‘Introduction: Institutionalizing Northeast Asia: Challenges and
Opportunities’, in M. Timmermann and J. Tsuchiyama (eds), Institutionalizing Northeast Asia: Regional
Steps towards Global Governance, Tokyo: UN University Press, 2008, p. 4.
8 See S. Narine, ‘State Sovereignty, Political Legitimacy and Regional Institutionalism in the Asia-
Pacific’, The Pacific Review 17, 2004, p. 423.
9 C. Thayer, ‘Kevin Rudd’s Multi-Layered Asia Pacific Community Initiative’, East Asia Forum,
June 2009, available at: <http://www.eastasiaforum.org/2009/06/22/kevin-rudds-multi-
layered-asia-pacific-community-initiative/> (accessed 12 March 2010).
10 Hatoyama, op. cit. (note 2).
11 L. Woods, ‘Economic Cooperation and Human Rights in the Asia-Pacific Region: The Role of
Regional Institutions’, in J. Tang (ed.), Human Rights and International Relations in the Asia-Pacific Region,
London & New York: Pinter, 1995, p. 154.
Introduction 3
the ‘West’ are founded on individualism and are therefore inappropriate to Asia,
where primacy is given to the community and communal action. The idea was
articulated in the 1993 Bangkok Declaration, which qualified human rights by
stating that:
[W]hile human rights are universal in nature, they must be considered in the
context of a dynamic and evolving process of international norm-setting,
bearing in mind the significance of national and regional particularities and
various historical, cultural and religious backgrounds.12
The ‘Asian values’ debate ran hot throughout the mid-1990s, but after the Asian
financial crisis in mid-1997 the debate largely faded.13 It may be, however, that
there has been a shift in rhetoric from ‘Asian values’ to the ‘war on terror’ since
2001 in the justification of authoritarianism and occasional repression.14
Nevertheless, developments since 1993 have laid the foundation for institution-
building for the promotion and protection of human rights in the region. First,
despite the criticisms of an homogeneous conception of ‘Asian values’, on account
of the diversity in religions, cultures and political and economic systems in the Asia-
Pacific region,15 the debate has brought greater awareness of cultural dimensions
in implementing human rights obligations.16 Exploring the interplay between
cultural diversity and universal human rights is crucial in understanding the role
that cultural relativism plays in promoting human rights and different ways in which
universal human rights are to be embedded and realized in oppressive states.17
12 Final Declaration of the Regional Meeting for Asia of the World Conference on Human
Rights, UN Doc. A/CONF.157/ARSM/8-A/CONF.157/PC/59 (1993) (‘Bangkok
Declaration’), s. 6.
13 M. Thompson, ‘Whatever Happened to “Asian Values”?’, Journal of Democracy 12, 2001, p. 154.
14 See L. Avonius and D. Kingsbury, ‘Introduction’, in L. Avonius and D. Kingsbury (eds), Human
Rights in Asia: A Reassessment of the Asian Values Debate, Hampshire: Palgrave Macmillan, 2008,
pp. 5–6.
15 For a variety of views as to how the ‘Asian Values’ debate was considered in different Asia-Pacific
countries, see the collection in M. Jacobsen and O. Bruun (eds), Human Rights and Asian Values:
Contesting National Identities and Cultural Representations in Asia, Surrey: Curzon Press, 2000. See also,
Y. Ghai, ‘Human Rights and Governance: The Asia Debate’, Asia-Pacific Journal on Human Rights
and the Law 1, 2000, p. 9. For a critical analysis of the alleged cultural differences between Asia
and the West, see, eg, I. Tatsuo, ‘Liberal Democracy and Asian Orientalism’, in J. Bauer and D.
Bell (eds), The East Asian Challenge for Human Rights, Cambridge: Cambridge University Press, 1999,
p. 27; J. Donnelly, ‘Human Rights and Asian Values: A Defense of “Western” Universalism’, in
J. Bauer and D. Bell (eds), The East Asian Challenge for Human Rights, Cambridge: Cambridge
University Press, 1999, p. 60; M. Freeman, ‘Human Rights: Asia and the West’, in Tang (ed.),
op. cit. (note 11), p. 13.
16 See, eg, M. Freeman, ‘Human Rights and Real Cultures: Towards a Dialogue on Asian Values’,
Netherlands Quarterly of Human Rights 16, 1998, p. 25; M. Perry, ‘Are Human Rights Universal? The
Relativist Challenge and Related Matters’, Human Rights Quarterly 19, 1997, p. 461.
17 See, eg, J. Chen, ‘Asia Values? Why Not, But How?’, in Avonius and Kingsbury (eds), op. cit.
(note 14), p. 41; F. Varennes, ‘The Fallacies in the “Universalism versus Cultural Relativism”
Debate in Human Rights Law’, Asia-Pacific Journal on Human Rights and the Law 1, 2006, p. 67.
Equally important is an understanding of the dynamics of cultural changes that
are informed by universal human rights norms and their impact for understanding
human rights in the regional context.18 Cultural diversity is in fact the reason why
many believe that regional integration in the Asia-Pacific would be difficult to
achieve.19 Had there truly been ‘Asian values’ shared by all of the Asia-Pacific
countries, there may have been a stronger foundation for building regional
institutions. Yet, values and identities are not static, but are always susceptible to
external influences and internal socio-political changes. As the Asia-Pacific becomes
inextricably enmeshed in global markets, its human rights performance has also
come under increasing international scrutiny. Such external pressure, together with
rising transnational problems such as migration, environmental harm and human

trafficking, may facilitate processes of regional identity formation. Already, the
ASEAN countries have developed and institutionalized their own normative and
procedural approach to human rights at a sub-regional level.20
Secondly, even after the ‘Asian values’ debate faded, the authoritarianism and
communitarianism at the centre of that debate continue to be nourished by strong
assertions of state sovereignty and non-intervention. In the Asia-Pacific, human
rights issues have traditionally been inextricably linked with economic and security
issues. For example, the Institute of Pacific Relations, established in 1925 as a
gathering of academics, business people, labour leaders, journalists and govern-
mental officials, engaged in human rights-related activities in the inter-World War
period. The Institute worked on the premise that dealing with human security
issues, such as immigration and race, would lessen conflict and increase cooperation
amongst states and peoples.21
More recently, ASEAN adopted the ASEAN Charter and established the
ASEAN Intergovernmental Commission on Human Rights (‘AICHR’) in 2007,22
yet those developments are explicitly subject to the principle of non-intervention
in the internal affairs of the member states.23 The principle of non-intervention is
nothing special in international law. However, the strong sentiment linking human
rights issues with security agendas that are shared by many countries of the region
raises questions about the institutional design of human rights mechanisms in
the Asia-Pacific. In particular, it influences whether there is, or should be, an Asian
way of promoting and protecting human rights, distinct from the judicial
18 This point is further elaborated in Chapter 13 of this book.

19 For discussion, see Frost, op. cit. (note 6), pp. 217–31.
20 See generally, Y. Ginbar, ‘Human Rights in ASEAN – Setting Sail or Treading Water?’, Human
Rights Law Review 10, 2010, p. 504; M. Manea, ‘How and Why Interaction Matters: ASEAN’s
Regional Identity and Human Rights’, Cooperation and Conflict 44, 2009, p. 27.
21 Woods, op. cit. (note 11), pp. 156–8.
22 ASEAN Charter (entered into force 15 December 2008), art. 14. The text of the Charter is
available at: <http://www.aseansec.org/21069.pdf> (accessed 12 March 2010).
23 As confirmed in art. 2(e) of the ASEAN Charter and art. 2.1(b) of the AICHR Terms of Reference,
which is available at: <http://www.aseansec.org/publications/TOR-of-AICHR.pdf> (accessed
12 March 2010).
Introduction 5
mechanisms that European, American and African countries have developed in
their regional human rights systems.
Thirdly, blueprints for human rights mechanisms in the Asia-Pacific already
emerged in the 1990s. In May 1998 the Asian Human Rights Commission, with
the support of several non-governmental organizations, published the Asian
Human Rights Charter.24 Although it remains a non-binding statement of people’s
aspirations, it envisages difficulty in establishing a single human rights monitoring
institution in the region, where a number of cultures co-exist, and instead recognizes
the need for sub-regional institutions.25 One such sub-regional body has been the
ASEAN-based human rights mechanism. The idea received official endorsement
in 1993 when ASEAN Foreign Ministers issued a Joint Communiqué in support

of the 1993 Vienna Declaration, which emphasized ‘the need to consider the
possibility of establishing regional and sub-regional arrangements for the promotion
and protection of human rights where they do not already exist’.26 Despite apparent
reluctance of some of the influential countries such as Indonesia, Malaysia and
Singapore, a number of different approaches and proposals were discussed over
subsequent years,27 leading to the adoption of the ASEAN Charter in 2007,28 and
ultimately to the establishment of AICHR in 2009 and the ASEAN Commission
on the Promotion and Protection of the Rights of Women and Children (‘ACWC’)
in April 2010.
Fourthly, in response to the 1993 Vienna Declaration, national human rights
institutions started to emerge in the region.29 A national human rights institution
is ‘a body, which is established by a government under the Constitution, or by law
or decree, the functions of which are specially defined in terms of the promotion,
24 The text is available at: <http://material.ahrchk.net/charter/> (accessed 12 March 2010). For

an analysis of the Charter, see, eg, S. Harris, ‘Asian Human Rights: Forming a Regional
Covenant’, Asian-Pacific Law & Policy Journal 1, 2000, p. 1; R. Wilde, ‘NGO Proposals for an Asia-
Pacific Human Rights System’, Yale Human Rights & Development Law Journal 1, 1998, p. 137.
25 Asia Human Rights Charter, op. cit. (note 24), section 16.2. See also V. Muntarbhorn, ‘Asia,
Human Rights and the New Millennium: Time for a Regional Human Rights Charter?’,
Transnational Law & Contemporary Problems 8, 1998, pp. 415–16.
26 UN World Conference on Human Rights, Vienna Declaration and Programme of Action, UN
Doc. A/CONF.157/23/ (1993). The ASEAN Ministerial Joint Communiqué declared that
‘ASEAN should also consider the establishment of an appropriate regional mechanism on human
rights’. See Joint Communiqué of the Twenty-Sixth ASEAN Ministerial Meeting, Singapore,
23–24 July 1993, para. 18, available at: <http://www.aseansec.org/2009.htm> (accessed 12
March 2010).
27 For details, see, H. Phan, ‘The Evolution towards an ASEAN Human Rights Body’, Asia-Pacific
Journal on Human Rights and the Law 1, 2008, p. 1; Manea, op. cit. (note 20), pp. 40–3.
28 Art. 14 of the ASEAN Charter states: ‘In conformity with the purposes and principles of the
ASEAN Charter relating to the promotion and protection of human rights and fundamental
freedoms, ASEAN shall establish an ASEAN human rights body’.
29 For example, in India (1993), Indonesia (1993), New Zealand (1993), Palestinian Territories (1993),
Sri Lanka (1996), Fiji (1998), Thailand (1999), Malaysia (2000), Mongolia (2000), Nepal (2000),
South Korea (2001), Afghanistan (2002), Jordan (2002), Qatar (2002), Timor Leste (2004), and
the Republic of the Maldives (2006). Australia and the Philippines had already established a
national human rights monitoring institution before 1993.
and protection of human rights’.30 The establishment and development of those
national institutions have stimulated an intra-regional dialogue on human rights
and have been regarded as a step towards a regional human rights monitoring
mechanism.31 The key to this dialogue has been the Asia Pacific Forum of National
Human Rights Institutions (‘APF’), which has facilitated mutual support, co-
operation, information exchange and joint activities such as training and seminars,
among different national institutions since its establishment in 1996.32
A picture that emerges from this brief overview of the recent developments for
the promotion and protection of human rights in the Asia-Pacific is that there are
already institutional foundations, and maturing, structured institutional mechan-
isms, that facilitate regional integration and dialogue on human rights. The
traditional view has been that the creation of institutional mechanisms, especially
in the form of judicial remedies, is the prerequisite for ensuring effective protection
of human rights. Yet, the managerial approach to solving problems or reaching
outcome is not the only way of conceptualizing international institutions. Rather,
some institutions may be characterized as dialogic fora where states meet, exchange
ideas and discuss their common future.33 The communicative aspect of institutions
is arguably more significant, at least in the short to medium term, in looking at
institutional developments in the Asia-Pacific region.
There are undoubtedly significant challenges to fully addressing human rights
concerns in the region, including the level of commitment of regional superpowers
such as China, the degree of participation by oppressive regimes such as Burma,
and the traditional reluctance of states to raise human rights concerns with
neighbouring countries. The establishment and activities of national human rights
institutions could well become part of a government’s administrative machinery to
deflect international attention to and criticism of rights violations.34 However, those
human rights monitoring institutions at different levels may take on a life of their
own, distancing themselves from governments. Governments often have mixed
motivations for their involvement in institutional development.35 Institution-
building must be seen in the light of the dynamics of internal politics, diplomatic
negotiations, economic interests and other factors that might affect the way that
each state perceives and approaches human rights monitoring institutions.
30 UN Center for Human Rights, National Human Rights Institutions: A Handbook on the
Establishment and Strengthening of National Institutions for the Promotion and Protection of
Human Rights, UN Doc. HR/P/PT4 (1995), para. 39.
31 See, eg, HURIGHTS OSAKA, ‘UN Workshops on Regional Arrangement for Human Rights
in the Asia-Pacific’, FOCUS Asia-Pacific News 7, 1997, available at: <http://www.hurights.or.jp/
asia-pacific/no_07/07unworkshops.htm> (accessed 12 March 2010).
32 For more detail, see its website at <http://www.asiapacificforum.net/> (accessed 12 March 2010).
33 J. Klabbers, ‘Two Concepts of International Organization’, International Organizations Law Review
2, 2005, p. 277.
34 See A. Kabir, ‘Establishing National Human Rights Commissions in South Asia: A Critical Analysis
of the Processes and the Prospects’, Asia-Pacific Journal on Human Rights and the Law 2, 2001, p. 1.
35 A. Gallagher, ‘Making Human Rights Treaty Obligations A Reality: Working with New Actors
and Partners’ in P. Alston and J. Crawford (eds), The Future of UN Treaty Monitoring, Cambridge:
Cambridge University Press, 2000, p. 205.
Introduction 7
To this end, this book examines international, regional and national human
rights monitoring institutions relevant to the Asia-Pacific region to provoke further
discussion about the role of such institutions, the processes of building them, and
their implications for regional integration. What impacts do the various institutions
have in facilitating regional integration or in directing how it should take place? Is
there a particular recipe or norm to ingrain human rights in regional integration?
Or is it dynamics of interaction and dialogue that facilitate institutional norms for
regional integration? What role can international institutions play in accom-
modating the diversity of views and conservatism among the Asia-Pacific countries
in the promotion and protection of human rights? To what extent does ASEAN
play an important role in promoting human rights agendas, as part of the on-going
move towards regional integration in a wider area of the Asia-Pacific? Will
it succeed in effecting policy changes in the face of the strong assertion of state
sovereignty, designed to avoid the degradation of domestic political legitimacy? Is
there scope for utilizing national human rights institutions in the processes of
regional human rights dialogue, and if so, what needs to be improved to harness
their potential?
The success of the European Union suggests that regional integration might be
possible if it grows in parallel to, and is backed by, close consultation and dialogue
on human rights in practice. Given the flourishing activities of various human rights
institutions in the Asia-Pacific in the last decade, the time is ripe to consider the
extent to which existing or emerging institutional arrangements might advance
human rights agendas and help to develop a regional community or communities
in the Asia-Pacific.
Objective and approach

Much of the existing legal literature on human rights in the region has focused on
country-specific human rights situations,36 particular human rights themes in the
region,37 or whether there are ‘Asian values’ which affect the reception of rights.38
There has been far less attention to the creation and development of human
rights institutions or mechanisms (preventive, remedial, educative, formal, informal,
binding, non-binding, and so on), whether at the international, regional, sub-
regional or national level, or through transnational non-governmental networks.
The focus of the literature has resulted in ‘planting the seeds, forgetting ploughing
the field’ for the promotion of human rights in the region. This book contributes
to ‘ploughing the field’ by examining the institutional aspects of regional human
36 See, eg, R. Peerenboom, C. Petersen and A. Chen (eds), Human Rights in Asia: A Comparative Legal
Study of Twelve Asian Jurisdictions, France and the USA, London: Routledge, 2006; J. Lawrence (ed.),
Human Rights in Asia and the Pacific, New York: Nova Science Publishers, 2004.
37 See, eg, J. Castellino and E. Redondo, Minority Rights in Asia: A Comparative Legal Analysis, Oxford:
Oxford University Press, 2006; A. Hilsdon, M. MacIntyre, V. Mackie and M. Stivens (eds), Human
Rights and Gender Politics: Asia-Pacific Perspectives, London: Routledge, 2000.
38 See the literature cited above at note 15.
rights protection in the context of an unstructured yet on-going process of regional
integration.
The focus of this book is the broadly defined Asia-Pacific region, without
precisely defining the geographical area.39 ‘Region’ is understood here as a social
construct based on spatialized social relations and discourses, which can be
nurtured and developed through discursive practices, rather than viewed as a static,
pre-determined geographical space.40 The purpose of examining the institutional
aspects of regional human rights protection lies in a conscientious rejection of the
assumption that regional integration cannot be achieved without a pre-existing
identity and shared values. While amongst the weakest agendas in the current
political settings of the region, human rights protection and institution-building

provide a critical perspective in ascertaining the true character and future directions
of regional integration – one that goes beyond mere lip-service based on strategic
national interests.
This book takes a normative and layered approach by examining the existing
and emerging human rights monitoring institutions at the international, regional
and national levels. Although it is not strictly confined to legal analysis of human
rights protection, legal and normative approaches are adopted throughout the book
to address formal institution-building and its role in furthering and directing
regional integration. In this sense, a sociological or anthropological analysis of
regional integration is not the focus of the book, including the role that non-
governmental organizations play in raising human rights concerns and advocating
for stronger institutional mechanisms. It is worth emphasizing, however, that non-
governmental organizations have proven their distinct role in promoting specific
policy agendas, as revealed in some chapters of this book.
This book is not intended to provide a complete and comprehensive picture of
human rights situations and monitoring activities in each country of the region.
The goal is to assess the institutional aspects of human rights monitoring in the
context of regional integration. To achieve this goal, a limited number of key
human rights monitoring bodies are selected on the basis that the emergence and
activities of those bodies illuminate the potential and challenges for human rights
protection within the overall process of regional integration.
39 The region is defined widely to include: Afghanistan, Australia, Bangladesh, Bhutan, Brunei
Darussalam, Cambodia, China, the Special Administrative Regions of China, the Democratic
People’s Republic of Korea, Fiji, India, Indonesia, Japan, Kiribati, the Lao People’s Democratic
Republic, Malaysia, Maldives, Marshall Islands, Micronesia, Mongolia, Myanmar (Burma),
Nauru, Nepal, New Zealand, Pakistan, Palau, Papua New Guinea, the Philippines, the Republic
of Korea, Samoa, Singapore, Solomon Islands, Sri Lanka, Thailand, Timor-Leste, Tonga, Tuvalu,
Vanuatu and Vietnam.
40 See A. Paasi, ‘Europe as a Social Process and Discourse’, European Urban and Regional Studies 8,
2001, p. 7.
Introduction 9
Structure
International institutions
The existing international human rights monitoring institutions, such as the UN
Human Rights Committee and the UN Human Rights Council, have all played a
significant part already and have shown great potential in enhancing and facilitating
human rights protection activities in the Asia-Pacific. To start with the most general
human rights instrument, the International Covenant on Civil and Political Rights
(‘ICCPR’),41 two former members of the UN Human Rights Committee assess the
Committee’s work in relation to Asia-Pacific states. In Chapter 1, Ivan Shearer
with Naomi Hart examine the level of acceptance of ICCPR obligations by Asia-
Pacific states, revealing that there has been a slow but steady increase in the
willingness of states to become parties to the ICCPR and thus to submit to an
external scrutiny by an international body. If this trend continues, Shearer and
Hart argue, the treaty-based body may satisfactorily complement any emerging
regional bodies that do not have compulsory monitoring systems. Shearer and Hart
also review the Concluding Observations of the Committee in relation to the
common concerns identified in Asia-Pacific states. Recognizing that the effec-
tiveness of the Committee’s work depends not only on the number of state parties
but also their willingness to submit timely reports, they suggest that the Committee
could make more use of its power to examine ‘country situations’ in the absence
of a report due to state delay.
Despite the improvements noted by Shearer and Hart, the Asia-Pacific region
still remains the most challenging part of the world in relation to the penetration
and effectiveness of various international human rights monitoring institutions. The
next four chapters examine these difficulties. In Chapter 2, Nisuke Ando discusses
the tension between universal human rights values and multiculturalism, also
drawing on his experience as a member of the UN Human Rights Committee.
Although the Committee monitors states’ implementation of ‘universal standards
of human rights’, tensions inevitably arise when the Committee has to take into
account various local customs and domestic legal norms. Ando reviews specific
cases where the Committee dealt with issues of multiculturalism, drawing lessons
to guide how human rights monitoring institutions should be approached and
developed in the Asia-Pacific region.
Challenges that have confronted the newly established UN Human Rights
Council and its Universal Periodic Review (‘UPR’) are presented by Shigeki
Sakamoto in Chapter 3. The Council’s review process is still deferential to state
sovereignty in promoting constructive dialogue between the state under review and
other states. A thorough review of the statements and the voting behaviour of Asia-
Pacific states in relation to three regional countries with serious human rights
concerns, namely, China, the Democratic People’s Republic of Korea (‘DPRK’),
41 999 UNTS 171 (entered into force 23 March 1976).

and Sri Lanka, demonstrates that Asia-Pacific countries prefer such a conservative
method. Their cautious attitude towards any more intrusive examination of human
rights situations by an independent body contrasts sharply with the views expressed
by liberal western states. As a state-driven process, the UPR cannot be immune
from politics. However, Sakamoto identifies the challenges posed to this system as
to how, and to what extent, this political process can achieve the objective originally
envisaged of the UPR. In particular, Sakamoto raises questions about the UPR in
ensuring universality and objectivity in considering human rights issues, and how
the solidarity of peoples in the region can be fostered and strengthened to help the
regional states to improve compliance with human rights obligations.
More practical and much deeper challenges of strengthening human rights

institution-building in the region are explored in Chapter 4 by reference to advanced
monitoring mechanisms developed in two recent human rights treaties: the Optional
Protocol to the Convention against Torture (‘OPCAT’)42 and the Convention on
the Rights of Persons with Disabilities (‘CPRD’).43 Sarah McCosker’s careful and
detailed analysis of the uptake and approaches to those instruments by the Asia-
Pacific states reveals that fresh opportunities for improved human rights engagement
may pose particular challenges for the region. In the absence of strongly-embedded
human rights institutions in the region, processes of institution-building, norm-
consensus and state/non-state collaboration have traditionally proved complex,
difficult and uneven in speed. McCosker concludes that there is a need for increased
capacity-building and education regarding these treaties by the relevant UN bodies,
working collaboratively with states, regional human rights bodies, national human
rights institutions and networks, and civil societies.
Further challenges are posed by the regional giant, China, which forms the
subject of inquiry in Chapter 5. Wim Muller examines China’s experience with
international human rights monitoring in an attempt to gauge its attitude towards
external monitoring and its normative impacts on China’s behaviour. Muller
compellingly demonstrates the significant shift in China’s approach to human rights
monitoring by various international bodies, which has recently led to a high degree
of procedural compliance, adherence to the guidelines set out by the treaty bodies
and the provision of more statistical data to those mechanisms. Although China
may not be prepared to accept more intrusive forms of monitoring, Muller argues
that its continuing engagement in dialogue through the reporting procedures
indicates that it will not necessarily show a negative attitude towards regional
institution-building.
Regional institutions
It is widely believed that the Asia-Pacific region is the most difficult part of the
world to achieve regional integration, because of the lack of ethnic, religious or
42 2375 UNTS 237 (entered into force 22 June 2006).

43 Adopted 13 December 2006, GA Res 61/106 (2006) (entered into force 3 May 2008).
Introduction 11
cultural homogeneity and common values. The construction of regional human
rights institutions may be difficult even if there is sufficient political will. However,
the reality is that there are already signs of movement towards a regional human
rights mechanism and greater regional integration in the Asia-Pacific.44
Accordingly, in Chapter 6, Ben Saul, Jacqueline Mowbray and Irene Baghoomians
critically review common explanations for the reluctance to institutionalize regional
human rights protection in the Asia-Pacific by drawing upon the experiences of
establishing mechanisms in the Americas, Europe and Africa. The chapter argues
that many claims about the uniqueness of the Asia-Pacific are often exaggerated or
inaccurate and do not preclude prospects for further regional institutionalization of
human rights protection. The chapter suggests, however, that sub-regional rather
than whole-of-region cooperation on human rights may be more feasible and fruitful
in the short term. Sub-regional mechanisms in the ASEAN countries, the Pacific and
South Asia are viable options which may build regional confidence and evolve into
stronger forms of human rights protection over time.
Chapter 7 turns to the evolving regional institution tasked with human rights
monitoring within ASEAN, the Intergovernmental Commission on Human Rights
which was formed at the 15th ASEAN Summit on 23 October 2009. Unlike other
literature which reviews the establishment of the AICHR against the background
of the ASEAN Charter, Tan Hsien-Li discusses ASEAN’s complex relationship
with human rights and the contributions that non-governmental organizations have
made throughout the process of institutionalizing human rights monitoring within
the ASEAN sphere. Tan emphasizes the efforts made by the Working Group for
an ASEAN Human Rights Mechanism and how its persistent efforts to engage
ASEAN as an institution and ASEAN member states individually influenced
ASEAN to keep its 1993 promise to set up a regional mechanism.
Chapters 8 and 9 take a closer look at regional institution-building relating to
two specific human rights issues of particular relevance to the Asia-Pacific region
– the rights of migrant workers and of women. Susan Kneebone focuses on the
regional approach to the rights of migrant workers from an institutional perspective.
Kneebone illuminates the differences in approach and scope between international
efforts (such as the UN Convention on Migrant Workers) and regional efforts,
particularly through the ASEAN Forum on Labour Migration established by the
ILO and the Task Force-ASEAN Migrant Workers (known as ‘TF-AMW’), which
includes broad civil society representation.
Another ASEAN institution, ACWC, inaugurated on 7 April 2010, is the focus
of Irene Pietropaoli’s chapter. Pietropaoli revisits inherent difficulties with regional
human rights initiatives in the Asia-Pacific and identifies the problem of matching
normative standards of substantive gender equality and the practical recognition,
promotion and fulfilment of women’s rights. Focusing on the situation in the Lao
44 See, generally, A. Durbach, C. Renshaw and A. Byrnes, ‘“A Tongue but No Teeth?”: The
Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region’, Sydney Law Review
31, 2009, p. 211.
PDR as a case study – where the status of women has not significantly improved
despite the ratification of international and regional treaties – the chapter highlights
challenges to the ACWC by an authoritarian, corrupt government. Pietropaoli
observes that in order to fulfil its mandate the ACWC needs to work with civil
society partners, and yet the Lao PDR lacks experts, independent women’s groups,
and most importantly, public awareness of women’s rights due to limited human
rights education, especially in rural areas.
Transnational and national institutions

The difficulty in generating sufficient political will in the Asia-Pacific region to

establish a strong regional human rights institution is well known, especially if it
were to involve judicial intervention as in Europe, the Americas and Africa. Yet,
this book embraces the view that we must look outside the square, beyond a narrow
conception of ‘institutions’ revolving around judicial remedies. Alternative per-
spectives are necessary to re-evaluate the roles and impacts of existing human rights
institutions in the wider sense in the Asia-Pacific region.
Such re-evaluation is undertaken in Chapter 10, where Catherine Renshaw
considers the roles of transnational networks in the implementation of human rights
in the Asia-Pacific. Human rights is an area in which transnational governance
through networks is considered unlikely to emerge because states disagree on how
to define rights, except in flagrant cases such as genocide.45 Challenging this view,
Renshaw argues that networks such as the APF have significantly advanced the
reception of international human rights norms in a region which lacks its own
supra-national monitoring institutions. This chapter considers the power of the
network as an actor in aiding domestic implementation of international human
rights law through processes of socialization. It also considers the role of the network
in ‘building bureaucratic capacity’ that embraces a state’s ability to comply with
its treaty obligations, and the potential for the network to promote, negotiate or
resist contested ideas in a forum not always dominated by hegemonic interests.
The role of National Human Rights Institutions (‘NHRIs’) is subject to further
scrutiny in Chapters 11 and 12 in respect of two challenging problems confronting
them. In Chapter 11, Andrea Durbach examines the emergence and continued
existence of a NHRI during periods of severe political instability and sustained
human rights violations in Nepal. The Nepal Human Rights Commission took
on an expanded mandate under the 2006 peace accord between the Nepalese
Government and the Communist Party of Nepal.46 The challenges faced by the
Nepal Human Rights Commission are not only due to the Government’s consistent
failure to implement its recommendation and to provide it with sufficient resources
45 See, eg, F. Bignami, ‘Transgovernmental Networks vs. Democracy: The Case of the European
Information Privacy Network’, Michigan Journal of International Law 26, 2005, p. 807 at p. 867.
46 A similar inquiry has been made in relation to Fiji. For details, see C. Renshaw, A. Byrnes and
A. Durbach, ‘Implementing Human Rights in the Pacific through National Human Rights
Institutions: The Experience of Fiji’, Victoria University of Wellington Law Review 40, 2009, p. 251.
Introduction 13
and appropriate infrastructure. Durbach also observes the tension arising between
the regulatory function of a NHRI (in promoting the implementation of justice
through human rights compliance) and its more political attempts to facilitate peace
in a country marred by violence and instability.
In Chapter 12, Surya Deva presents a critical point of view on the second chal-
lenging problem, which is that NHRIs are not generally geared to respond to human
rights violations by non-state actors such as multinational corporations. With special
reference to the experience of the National Human Rights Commission of India,
Deva argues that NHRIs could play an important role in redressing human rights
violations by such actors. The chapter demonstrates that there are no serious legal
or practical obstacles in requiring NHRIs to deal with corporate human rights

abuses. There are indeed peculiar factors that may have contributed to the Indian
NHRC’s willingness to deal with selected cases of corporate human rights abuses,
and therefore the development of other NHRIs in this direction may not be so
straightforward. However, Deva identifies advantages in establishing a dialogue
between corporations, victims, non-governmental organizations and governments,
and in raising awareness about corporate human rights violations through such
processes.
The final chapter addresses the situation where no NHRI is established, as is the
case in the People’s Republic of China. Mimi Zou and Tom Zwart put forward an
alternative approach that moves beyond the problematic universalist/relativist
framework dominant in human rights discourse. They seek to identify suitable
‘receptors’ within a given society and facilitate their interaction with specific human
rights, so as to trigger a positive response within that local culture. With the focus
on the case of China, Zou and Zwart examine whether improvements in human
rights policy and practice may be promoted more effectively through identifying
local receptors within Chinese society. By identifying a range of receptors in
countries across the region, this approach is more likely to strengthen local com-
mitment to international human rights even without establishing a NHRI. The
receptor approach may thus complement existing international human rights
mechanisms and the emerging regional mechanisms in the Asia-Pacific region such
as the AICHR.
Part I
institutions
International
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 peremp-
tory 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
1 Including the ICERD, ICCPR, ICESCR, CEDAW, CAT, CRC, CRPD and ICRMW.
2 The distinction between negative and positive rights or liberties, stemming from Kant,
was elaborated by Isaiah Berlin in his lecture ‘Two Concepts of Liberty’ at Oxford in October
1958.
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 com-
prises 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
3 Within the last 10 years, the following Asian states have ratified the ICCPR: Bahrain (2006),
Bangladesh (2000), Indonesia (2006), Kazakhstan (2006), Maldives (2006), Papua New Guinea
(2008), Samoa (2008), Tajikistan (1999), Timor-Leste (2003) and Vanuatu (2008). During the
same period the following Asian states signed, but have not yet ratified, the ICCPR: Nauru (2001)
and Pakistan (2008). Ratification of the ICESCR is mostly matched by ratification of the ICCPR
except for Iraq, Samoa and Vanuatu, which are parties to the ICCPR but not the ICESCR.
Parties to the ICESCR but not the ICCPR are: China and the Solomon Islands. The following
Asian states are parties to neither Covenant: Bhutan, Brunei Darussalam, Fiji, Kiribati, Marshall
Islands, Federation of Micronesia, Malaysia, Myanmar, Nauru, Oman, Palau, Qatar, Saudi
Arabia, Singapore, Tonga, Tuvalu and the United Arab Emirates.
4 Bhutan, Brunei, China (mainland), Fiji, Kiribati, Malaysia, Marshall Islands, Micronesia,
Myanmar, Nauru, Palau, Pakistan, Solomon Islands, Singapore, Tonga and Tuvalu. China signed
the ICCPR on 5 October 1998, but has not yet ratified. Before the transition of the China seat
at the UN from the Republic of China (Taiwan) to the People’s Republic of China in 1971, the
Republic of China had signed the ICCPR on 5 October 1967. This signature, to which a number
of states objected, was not followed by ratification. Pakistan signed the ICCPR on 17 April 2008,
but has not yet ratified it.
The engagement of Asia-Pacific states with the UN Human Rights Committee 19
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 inter-
national 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 recogni-
tion 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.
5 Indonesia (2006), the Lao People’s Democratic Republic (2009), Maldives (2006), Papua New
Guinea (2008), Samoa (2008), Timor-Leste (2003), and Vanuatu (2008).
6 See, Introduction to this book and literature cited therein (note 15).
7 Including the five permanent members of the Security Council plus Australia, Belgium,
Byelorussia, Chile, Egypt, India, Iran, Lebanon, Panama, Philippines, Ukraine, Uruguay and
Yugoslavia.
8 M. Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, New
York: Random House, 2001, p. 47.
9 Ibid, p. 215; C. Romulo, The Meaning of Bandung, Chapel Hill: University of North Carolina Press,
1956. China actually had participated in the adoption of the Universal Declaration of Human
Rights in 1948 and a Chinese national, Chang Peng-Chun, was one of its principal promoters.
However, no doubt what Chou Enlai meant was that the values represented by the People’s
Republic of China, which was ultimately successful in the Civil War raging in China at the time
of the negotiation of the Universal Declaration in 1946–48, were not necessarily reflected by the
Declaration.
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
10 At different times in the past the Committee has included members from Iran, Iraq and Sri Lanka.
The present composition of the Committee, by UN-defined regions, consists of six members from
Africa, five from Western Europe and Others Group, four from Latin America and the Caribbean,
two from Asia, and one from Eastern Europe.
11 Acceptance of the competence to receive state to state complaints is subject to the lodging of a
specific declaration of acceptance of the procedure. Such declarations have been made by 46
states parties, three of them from Asia: Republic of Korea, the Philippines and Sri Lanka. Australia
and New Zealand have also lodged declarations of acceptance.
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 exami-
nation 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 illustrate some points of
concern frequently identified by the Committee.
The death penalty

The ICCPR does not prohibit the death penalty. Article 6(2) of the ICCPR,
however, provides that ‘sentence of death may only be imposed for the most serious
crimes in accordance with the law in force at the time of the commission of the
12 Rules of Procedure of the Human Rights Committee, UN Doc. CCPR/C/3/Rev.8 (2005),

rule 70.
crime’. The policy of the Committee is to discourage its use and to urge all states
parties appearing before it to abolish the death penalty altogether and to adhere
to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death
penalty. Thirteen Asia-Pacific states are among the 60 states worldwide that actively
impose the death penalty.13
In dealing with Asian states parties, the Committee has welcomed the reduction
in the number of crimes attracting capital punishment in some states.14 It noted,
though, that several states retained the death penalty for crimes which were not
‘most serious’,15 including drug-trafficking;16 abetting suicide;17 property-related
offences;18 and the ill-defined offence of ‘opposition to national security’.19
The Committee noted that in Japan, while murder is the only crime punishable
by death, the number of executions has increased over the last decade,20 avenues
of appeal have been reduced, and powers of pardon, commutation or reprieve are
rarely used.21 Japan’s denial of visits by, and correspondence with, family members
to death row inmates, as well as its failure to provide families with notice of
executions, was found inconsistent with the ICCPR.22
The Committee reported that India still allows for the execution of minors.23
Although this practice is outlawed in the Philippines, a number of minors remained
on death row in 2003.24 As of 2005, Thailand no longer executed minors.25 The
Committee also condemned the Democratic People’s Republic of Korea’s occa-
sional practice of executing individuals in public.26
13 Afghanistan, Bangladesh, China, India, Indonesia, Japan, Democratic People’s Republic of Korea,
Malaysia, Mongolia, Pakistan, Singapore, Thailand and Vietnam.
14 HRC, Concluding Observations on the Democratic People’s Republic of Korea, UN Doc.
CCPR/CO/72/PRK (2001), para. 4; HRC, Concluding Observations on Vietnam, CCPR/CO/
75/VNM (2002), para. 7.
15 HRC, Concluding Observations on the Democratic People’s Republic of Korea, op. cit. (note
14), para. 13; HRC, Concluding Observations on Japan, UN Doc. CCPR/C/79/Add.28 (1993),
para. 4; HRC, Concluding Observations on Japan, UN Doc. CCPR/C/79/Add.102 (1998),
para. 20.
16 HRC, Concluding Observations on the Philippines, UN Doc. CCPR/CO/79/PHL (2003), para.
10; HRC, Concluding Observations on Thailand, UN Doc. CCPR/CO/84/THA (2005), para.
14; HRC, Concluding Observations on Sri Lanka, UN Doc. CCPR/C/79/Add.56 (1995),
para. 4.
17 HRC, Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para. 4.
18 Ibid.
19 HRC, Concluding Observations on Vietnam, op. cit. (note 14), para. 7.
20 HRC, Concluding Observations on Japan, UN Doc. CCPR/C/JPN/CO/5 (2008), para. 16.
21 Ibid, paras 16, 17.
22 HRC, Concluding Observations on Japan (1993), op. cit. (note 15), para. 4; HRC, Concluding
Observations on Japan (1998), op. cit. (note 15), para. 21; HRC, Concluding Observations on
Japan (2008), op. cit. (note 20), para. 16.
23 HRC, Concluding Observations on India, UN Doc. CCPR/C/79/Add.81 (1997), para. 20.
24 HRC, Concluding Observations on the Philippines, op. cit. (note 16), para. 10.
25 HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 14.
14), para. 13.
It has welcomed moratoriums on the death penalty by some states.27 It expressed
regret, however, that the Philippines’ partial moratorium did not apply to drug-
related offences, which attracted the mandatory imposition of capital punishment.28
The Committee also noted with concern the Australian Attorney-General’s residual
discretion to allow the extradition of a person to a state where he or she may face
the death penalty.29
In its Concluding Observations in relation to the states parties retaining the death
penalty, all were encouraged to consider total abolition, and the Philippines has
indeed recently done so.
Conditions of detention
One of the most widespread problems in the Asia-Pacific is active physical
mistreatment of detainees, despite the protections in the ICCPR against torture or
other ill-treatment (article 7) and inhumane conditions of detention (article 10). A
large number of states have been found to subject detainees to mistreatment, often
amounting to torture or cruel, inhumane or degrading punishment.30 The
Committee expressed grave concern that Filipino law had no official prohibition
on torture,31 and that Sri Lanka’s definition of torture was extremely narrow.32
Even where torture was officially illegal, the Committee found that it was rarely
investigated,33 and that in Sri Lanka, victims were intimidated out of reporting
alleged instances of torture.34 It congratulated Hong Kong for improving its
procedure for investigating alleged instances of torture.35 It remains particularly
concerned about instances where there is evidence that confessions are elicited
27 HRC, Concluding Observations on Mongolia, UN Doc. CCPR/C/79/Add.120 (2000), para.

13; HRC, Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para. 3.
29 HRC, Concluding Observations on Australia, UN Doc. A/55/40 (2000), para. 20.
30 HRC, Concluding Observations on Cambodia, UN Doc. CCPR/C/79/Add.108 (1999), para.
13; HRC, Concluding Observations on the Democratic People’s Republic of Korea, op. cit.
(note 14), para. 15; HRC, Concluding Observations on India, op. cit. (note 23), para. 23; HRC,
Concluding Observations on the Philippines, op. cit. (note 16), para. 11; HRC, Concluding
Observations on the Republic of Korea, UN Doc. CCPR/C/79/Add.114 (1999), para. 14;
HRC, Concluding Observations on the Republic of Korea, UN Doc. CCPR/C/KOR/CO/3
(2006), para. 13; HRC, Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para.
4; HRC, Concluding Observations on Sri Lanka, UN Doc. CCPR/CO/79/LKA (2003), para.
9; HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 15.
33 HRC, Concluding Observations on Cambodia, op. cit. (note 30), para. 13; HRC, Concluding
Nepal, UN Doc. CCPR/C/79/Add.42 (1994), para. 10; HRC, Concluding Observations on Sri
Lanka (2003), op. cit. (note 30), para. 9.
35 HRC, Concluding Observations on the Hong Kong Special Administrative Region, UN Doc.
CCPR/C002HKG/CO/2 (2006), para. 5.
through coercive physical means, including in Japan, the Philippines and the
Republic of Korea.36
The Committee drew particular attention to reports of rapes of female detainees
in Cambodia and India.37 Detention facilities in several states also imposed harsh
punitive measures for breaches of discipline, including forcing detainees to wear
shackles and chains, placing detainees in solitary confinement and inflicting
corporal punishment.38 The Committee found that such practices occurred even
in Cambodia where they are technically illegal.39
A second broad area of concern is that detainees are deprived of human
necessities. The Committee found that several states provided detainees with
inadequate food;40 even more were found to have problems with overcrowding,
the spread of disease, poor sanitation and insufficient medical assistance available
to detainees.41
A third broad area of concern is that detainees are deprived of civil liberties.
Several states denied detainees the right to legal advice, including during interro-
gation (where many of the complaints of torture and inhumane treatment arose).42
Japanese detention facilities were found to severely restrict detainees’ rights to free
expression, free assembly and privacy.43 Detention facilities in the Democratic
People’s Republic of Korea were found to have coerced detainees into labour.44
The Committee expressed concern at the practice of Thailand and Vietnam of
denying detainees any access to their families.45
36 HRC, Concluding Observations on Japan (1998), op. cit. (note 15), para. 25; HRC, Con7cluding
Observations on the Philippines, op. cit. (note 16), para. 12; HRC, Concluding Observations on
the Republic of Korea, op. cit. (note 30), para. 14.
Observations on India, op. cit. (note 23), para. 23.
Observations on the Republic of Korea (2006), op. cit. (note 30), para. 13; HRC, Concluding
Observations on Sri Lanka (2003), op. cit. (note 30), para. 11.
39 HRC, Concluding Observations on Cambodia, op. cit. (note 30), para. 13.
40 HRC, Concluding Observations on Mongolia, op. cit. (note 27), para. 12; HRC, Concluding
Observations on Thailand, op. cit. (note 16), para. 16.
Observations on the Democratic People’s Republic of Korea, op. cit. (note 14), para. 16; HRC,
Concluding Observations on India, op. cit. (note 23), para. 26; HRC, Concluding Observations
on Mongolia, op. cit. (note 27), para. 12; HRC, Concluding Observations on Sri Lanka (2003),
op. cit. (note 30), para. 15; HRC, Concluding Observations on Thailand, op. cit. (note 16), para.
16; HRC, Concluding Observations on Vietnam, op. cit. (note 14), para. 13.
the Republic of Korea (2006), op. cit. (note 30), para. 14; HRC, Concluding Observations
on Thailand, op. cit. (note 16), para. 15; HRC, Concluding Observations on Japan (2008), op.
cit. (note 20), paras 18, 19.
43 HRC, Concluding Observations on Japan (1998), op. cit. (note 15), para. 27.
14), para. 17.
45 HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 16; HRC, Concluding
Observations on Vietnam, op. cit. (note 14), para. 13.
Finally, the Committee has expressed particular alarm at the treatment of
children in detention facilities. It has found that children are often detained for
extended periods, detained in the same facilities as adults and are particularly
vulnerable to physical mistreatment.46
Although the Committee congratulated New Zealand for the improvements it
planned to detention conditions in 1995,47 it disapproved of New Zealand’s decision
in 2002 to privatize its prisoner escort services and one of its prisons without
adequate oversight for the day-to-day running of the services.48
Anti-terrorism laws
A prominent concern of the Committee has been that legal provisions for special
criminal sanctions and law enforcement procedures (such as terrorism, sedition and
treason) are defined too broadly and/or vaguely, so that criminal liability is
uncertain and freedom of expression is curtailed.49 It also criticized states which
confer expansive powers on law enforcement agencies in their powers of arrest,
detention and interrogation.50 In some states, such as Sri Lanka, the courts have
no power to review actions taken under anti-terrorism legislation.51 In Thailand,
law enforcement officials enjoy immunity from suit and prosecution under its anti-
terrorism legislation, fostering a culture of impunity.52 The Committee repeatedly
reminded states that article 4 of the ICCPR enumerates rights from which states
may not derogate, even in times of public emergency.
The Committee has commended some repeals and contractions of anti-terrorism
and public emergency laws. The Republic of Korea narrowed the applicability of
and reviewed its National Security Law, though some prosecutions continued under
it.53 India’s Terrorist and Disruptive Activities Act lapsed in 1995, though 1,600
Australia (2000), op. cit. (note 29), para. 24.
47 HRC, Concluding Observations on New Zealand, UN Doc. CCPR/C/79/Add.47; A/50/40
(1995), para. 172.
48 HRC, Concluding Observations on New Zealand, UN Doc. CCPR/CO/75/NZL (2002),
para. 13.
49 HRC, Concluding Observations on the Hong Kong Special Administrative Region, op. cit. (note
35), para. 14; HRC, Concluding Observations on Nepal, op. cit. (note 33), para. 9; HRC,
Concluding Observations on the Philippines, op. cit. (note 16), para. 9; HRC, Concluding
Observations on the Republic of Korea (1999), op. cit. (note 30), paras 8, 9; HRC, Concluding
Observations on the Republic of Korea (2006), op. cit. (note 30), para. 9.
50 HRC, Concluding Observations on the Republic of Korea (1999), op. cit. (note 30), para. 9; HRC,
Concluding Observations on India, op. cit. (note 23), para. 9; HRC, Concluding Observations
on Sri Lanka (1995), op. cit. (note 16), para. 4; HRC, Concluding Observations on Thailand, op.
cit. (note 16), para. 13; HRC, Concluding Observations on Vietnam, op. cit. (note 14), para. 8.
53 HRC, Concluding Observations on the Republic of Korea (1999), op. cit. (note 30), para. 18.
people charged under the law remained in detention in 1997.54 Sri Lanka instituted
measures to increase access to the Ombudsman for individuals charged under its
Prevention of Terrorism Act in 1995,55 and in 2003 agreed to suspend the law for
the duration of its ceasefire with the Tamil Tigers, applying normal arrest and
detention procedures (though the Committee urged Sri Lanka to repeal the law
permanently).56
The Committee expressed concern that New Zealand’s anti-terrorism legislation
restricted the rights of asylum seekers, and risked New Zealand returning asylum
seekers to frontiers where they faced a well-founded fear of persecution, in violation
of New Zealand’s non-refoulement obligations.57
Although the Committee welcomed the Republic of Korea’s abolition of the

ideology conversion oath as a condition of release from detention for people
convicted under its National Security Law, it expressed concern at its substitution
by the law-abidance oath.58
The Committee has been vigilant since 2001, after the publication of its General
Comment on derogations from the ICCPR in times of emergency,59 to ensure that
the laws of states parties in response to terrorism do not exceed what is necessary,
reasonable and proportionate. It has criticized the laws of many reporting states in
this respect, especially where the definition of terrorism is unduly imprecise.60 Most
recently, the Committee recommended that Australia:
should in particular: a) guarantee the right to be presumed innocent by

avoiding reversing the burden of proof; b) ensure that the notion of ‘exceptional
circumstances’ does not create an automatic obstacle to release on bail; and
c) envisage to abrogate provisions providing Australian Security Intelligence
Organisation (‘ASIO’) the power to detain people without access to a lawyer
and in conditions of secrecy for up to seven-day renewable periods.61
Extrajudicial killings, arbitrary arrest and detention, excessive use of force by police
Article 9 of the ICCPR prohibits arbitrary arrest and detention, and requires states
to explain the reason for the arrest and any charges to the detainee, as well as to
provide opportunities to challenge one’s detention. Extended pre-trial detention
(often for several months) was a feature of many criminal justice systems in the Asia-
54 HRC, Concluding Observations on India, op. cit. (note 23), paras 9, 25.
57 HRC, Concluding Observations on New Zealand (2002), op. cit. (note 48), para. 11.
59 General Comment No. 29: State of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11
(2001).
60 See, eg, HRC, Concluding Observations on Australia, UN Doc. CCPR/C/AUS/CO/5 (2009),
para. 11.
61 Ibid, para. 11.
Pacific, which the Committee warned is contrary to article 9.62 The Committee
also disapproved of New Zealand’s preventive detention provisions.63
Extrajudicial killings and forced disappearances at the hands of police and
security forces were prolific throughout the Asia-Pacific.64 The Committee
expressed particular concern at the deaths and disappearances that occurred during
Cambodia’s elections in 1998.65 In the Philippines, children were often the victims
of such killings.66 In the Hong Kong SAR and Sri Lanka, the Committee high-
lighted the deficiencies of the police and army themselves conducting inquiries
into such occurrences (though in 1994 the Committee welcomed Sri Lanka’s
establishment of three Presidential Commissions of Inquiry into Involuntary
Removals and Disappearances, urging Sri Lanka to extend the Commissions’

jurisdiction into disappearances between 1984 and 1988).67 The Committee
disapproved of the number of extrajudicial killings and disappearances in Thailand,
particularly of human rights defenders, community leaders and demonstrators, and
the absence of punishments for those responsible.68 The Committee noted its
disapproval of the use of electric-shock ‘TASERS’ in Australian law enforcement,
and its concern that allegations of the excessive use of force by police are investi-
gated by police themselves.69
Other concerns
The Committee expressed a number of other major human rights concerns in the
region. First, the Committee frequently drew attention to the legal frameworks for
human rights in Asia-Pacific states. It commended New Zealand for its enactment
of a formal bill of rights,70 but criticised Australia for not yet enacting such
legislation into place (while welcoming its National Human Rights Consultation).71
Concluding Observations on India, op. cit. (note 23), paras 24, 26; HRC, Concluding
Japan (1998), op. cit. (note 15), para. 22; HRC, Concluding Observations on the Republic of
Korea (1999), op. cit. (note 30), para. 13; HRC, Concluding Observations on the Republic of
Korea (2006), op. cit. (note 30), paras 15, 16.
Observations on Nepal, op. cit. (note 33), para. 10; HRC, Concluding Observations on the
Philippines, op. cit. (note 16), para. 11.
35), para. 9; HRC, Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para. 4; HRC,
Concluding Observations on Sri Lanka (2003), op. cit. (note 30), para. 10.
68 HRC, Concluding Observations on Thailand, op. cit. (note 16), paras 10, 19.
69 HRC, Concluding Observations on Australia (2000), op. cit. (note 29), para. 21.
71 HRC, Concluding Observations on Australia (2000), op. cit. (note 29), para. 3; HRC, Concluding
Observations on Australia (2009), op. cit. (note 60), para. 5.
It congratulated Sri Lanka and Thailand for founding National Human Rights
Commissions,72 but noted the absence of any such body in Japan.73
A common concern of the Committee was that individuals within Asia-Pacific
states lacked sufficient access to international human rights enforcement mechan-
isms: states often precluded access altogether, or required that individuals first
pursue their rights through domestic courts.74 In many states, the status of inter-
national human rights instruments in domestic law was unclear, or those instru-
ments were found not to inform domestic law.75 New Zealand was an exception.76
The Committee also congratulated states which allowed NGOs to operate and
promoted their work.77 It harshly criticized states in which non-governmental
organizations did not or were not allowed to operate, noting that the absence of
these organizations meant that governments were less likely to be held accountable
for infringing human rights and that delegates’ reports to the Committee were more
difficult to verify, so abuses may go unnoticed.78
Secondly, the Committee has expressed concern over states’ interference with
civil liberties. In several states, the judiciary was poorly trained,79 susceptible to
bribery,80 and/or subject to political pressure and violence, including being
punished for handing down judgments with which the executive disagreed.81 The
72 HRC, Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para. 3; HRC, Concluding
Observations on Sri Lanka (2003), op. cit. (note 30), para. 4; HRC, Concluding Observations on
Thailand, op. cit. (note 16), para. 4.
Observations on the Democratic People’s Republic of Korea, op. cit. (note 14), paras 9–19; HRC,
Concluding Observations on Cambodia, op. cit. (note 30), para. 10; HRC, Concluding
Observations on Japan (1998), op. cit. (note 15), para. 9; HRC, Concluding Observations on the
Republic of Korea (1999), op. cit. (note 30), para. 21.
Vietnam, op. cit. (note 14), para. 5; HRC, Concluding Observations on the Democratic People’s
Republic of Korea, op. cit. (note 14), para. 9; HRC, Concluding Observations on the Republic of
Korea (1999), op. cit. (note 30), para. 7; HRC, Concluding Observations on Sri Lanka (2003), op.
cit. (note 30), para. 7; HRC, Concluding Observations on Australia (2009), op. cit. (note 60), para. 8.
Observations on Mongolia, op. cit. (note 27), para. 6; HRC, Concluding Observations on the
Republic of Korea (1999), op. cit. (note 30), para. 4; HRC, Concluding Observations on Japan
(1998), op. cit. (note 15), para. 2; HRC, Concluding Observations on Sri Lanka (1995), op. cit.
(note 16), para. 3; HRC, Concluding Observations on Australia (2009), op. cit. (note 60), para.
4; HRC, Concluding Observations on Japan (2008), op. cit. (note 20), para. 2.
14), para. 11; HRC, Concluding Observations on Vietnam, op. cit. (note 14), para. 20.
Observations on Mongolia, op. cit. (note 27), para. 9.
14), para. 8; HRC, Concluding Observations on Vietnam, op. cit. (note 14), paras 9, 10; HRC,
Committee congratulated Nepal for instituting a new Constitution with guarantees
of an impartial judiciary, but noted that the judiciary was still vulnerable to
violence.82 It commended the Republic of Korea’s provision of human rights
training for lawyers and judges, but noted that insufficient information had been
provided on judicial independence.83
Several states only partially protected rights in the criminal justice system.
Australia’s system of mandatory sentencing for minor crimes attracted the
Committee’s criticism,84 as did New Zealand’s policy of indefinitely detaining
prisoners deemed likely to re-offend.85 The Committee expressed concern at the
Republic of Korea’s extensive use of wire-tapping in criminal investigations,86 and
Sri Lanka’s new restrictions on the right to freedom from retroactive criminal
laws.87
Journalists in several states were harassed or intimidated.88 The Committee
welcomed Mongolia’s expansion of freedom of the press.89 It disapproved of
Vietnam’s prohibition of private ownership of media outlets,90 and Sri Lanka’s laws
that all electronic media must be government-owned.91
Many states were found to have provided inadequate information about religious
freedom, leading the Committee to express disappointment that it could not assess
whether states were complying with their obligation to allow freedom of religion
under article 18 of the ICCPR.92 The Committee found that Nepal’s laws
restricting the free exercise of religion and the right to change one’s religion were
incompatible with the ICCPR.93 The Committee acknowledged measures taken
by Australia to combat Islamophobia, but expressed alarm at the increasing
frequency of attacks on Australian Muslims, and recommended the implementation
of hate speech prohibitions.94
Concluding Observations on Sri Lanka (1995), op. cit. (note 16), para. 4; HRC, Concluding
Observations on Sri Lanka (2003), op. cit. (note 30), para. 16.
82 HRC, Concluding Observations on Nepal, op. cit. (note 33), paras 5, 10.
83 HRC, Concluding Observations on the Republic of Korea (1999), op. cit. (note 30), paras 6, 16.
Concluding Observations on the Hong Kong Special Administrative Region, op. cit. (note 35),
para. 13; HRC, Concluding Observations on Sri Lanka (2003), op. cit. (note 30), para. 18; HRC,
Concluding Observations on Thailand, op. cit. (note 16), para. 18.
89 HRC, Concluding Observations on Mongolia, op. cit. (note 27), para. 6.
14), para. 22; HRC, Concluding Observations on Mongolia, op. cit. (note 27), para. 16; HRC,
Concluding Observations on Vietnam, op. cit. (note 14), para. 16.
93 HRC, Concluding Observations on Nepal, op. cit. (note 33), para. 11.
Article 18 also provides for freedom of conscience. The Committee disapproved
of conscription regimes in the Republic of Korea and Vietnam which did not allow
for exemptions on the basis of conscientious objection.95
The Committee expressed concerns about labour rights, in addition to the
employment of children (especially in hazardous industries). Bonded labour
continued to exist in India, with members of some disadvantaged castes and tribes
being particularly vulnerable to coercion.96 Discrimination against and exploita-
tion of unregistered migrant workers was found to be particularly rife in Thailand,
the Republic of Korea and Japan.97 The Republic of Korea also placed restrictions
on the right of workers in some sectors to form trade unions,98 inconsistent with
article 22 of the ICCPR. In addition to the inability to form trade unions, several
states placed restrictions on other rights of free assembly,99 including the right to
protest.100
The Committee expressed grave concern at the Democratic People’s Republic
of Korea’s failure to hold democratic parliamentary elections.101 It also disapproved
of the existence of only a single political party in Vietnam.102
Thirdly, the Committee has commented frequently on states’ efforts to protect
minorities and vulnerable groups. Human trafficking, particularly of women and
children for both labour and prostitution, was prolific in several states.103 The
Committee acknowledged Thailand’s efforts to combat the problem.104 The
Committee expressed concern at the plight of street children, and children’s
participation in hazardous labour, in India,105 and children’s economic exploitation
95 HRC, Concluding Observations on the Republic of Korea (2006), op. cit. (note 30), para. 17;
HRC, Concluding Observations on Vietnam, op. cit. (note 14), para. 17.
96 HRC, Concluding Observations on India, op. cit. (note 23), para. 15.
97 HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 23; HRC, Concluding
Observations on Japan (2008), op. cit. (note 20), para. 24.
98 HRC, Concluding Observations on the Republic of Korea (1999), op. cit. (note 30), para. 19;
HRC, Concluding Observations on the Republic of Korea (2006), op. cit. (note 30), para. 19.
99 HRC, Concluding Observations on Nepal, op. cit. (note 33), para. 11; HRC, Concluding
Concluding Observations on the Republic of Korea (1999), op. cit. (note 30), para. 18.
14), para. 25.
14), para. 26; HRC, Concluding Observations on India, op. cit. (note 23), para. 31; HRC,
Concluding Observations on Japan (1998), op. cit. (note 15), para. 29; HRC, Concluding
Philippines, op. cit. (note 16), para. 13; HRC, Concluding Observations on Sri Lanka (2003), op.
cit. (note 30), para. 15; HRC, Concluding Observations on Cambodia, op. cit. (note 30), para.
16; HRC, Concluding Observations on Australia (2000), op. cit. (note 29), para. 22; HRC,
Concluding Observations on Japan (2008), op. cit. (note 20), para. 23.
105 HRC, Concluding Observations on India, op. cit. (note 23), paras 33–4.
and participation in armed groups in the Philippines.106 It also disapproved of Sri
Lanka’s setting of the minimum age for criminal responsibility at eight years, and
laws allowing girls as young as 12 years to marry.107 Japan was criticized for laws
which discriminate against children born out of wedlock.108
Several states were found to confer insufficient protections and rights (including
land rights) upon their indigenous populations.109 The Committee urged Australia
to also combat poverty and social exclusion of its indigenous inhabitants, but
welcomed the government’s apology for the practice of removing indigenous children
from their families (urging Australia to also consider offering compensation to victims
of that policy).110 It expressed concern at aspects of Australia’s Northern Territory
Emergency Response, particularly the suspension of the Racial Discrimination Act

1975 (Cth).111 Although it commended New Zealand for its efforts to grant land rights
to and to minimize the social exclusion of Maoris, it found that New Zealand needed
to do more to equalize healthcare and educational opportunities between its
indigenous and non-indigenous population.112 While the Committee welcomed the
Philippines’ expanded legal protections for its indigenous peoples, it noted that the
laws were often inadequately implemented: in particular, mining leases were often
granted despite their inconsistency with indigenous land rights.113
The Committee has expressed ongoing concern at the treatment and legal status
of women in numerous states in the Asia-Pacific. Women were frequently under-
represented in the public sector, public life, education and employment (where they
were also underpaid and often unregistered).114 The Committee did, however,
commend Japan’s establishment of a Minister for Women position and its Gender
Equality legislation and Basic Plan.115 Many states had no protections against
domestic violence,116 and even those that did usually enforced them inadequately
Vietnam, op. cit. (note 14), para. 19; HRC, Concluding Observations on Japan (2008), op. cit.
(note 20), para. 32.
110 HRC, Concluding Observations on Australia (2009), op. cit. (note 60), paras 3, 15.
111 Ibid, para. 14.
112 HRC, Concluding Observations on New Zealand (1995), op. cit. (note 47), paras. 173, 182; HRC,
Concluding Observations on New Zealand (2002), op. cit. (note 48), paras 7, 14.
14), para. 27; HRC, Concluding Observations on India, op. cit. (note 23), para. 17; HRC,
Concluding Observations on Japan (1993), op. cit. (note 15), para. 4; HRC, Concluding
Republic of Korea (1999), op. cit. (note 30), paras 10, 12; HRC, Concluding Observations on
Japan (2008), op. cit. (note 20), paras 12, 13.
Observations on Mongolia, op. cit. (note 27), para. 8; HRC, Concluding Observations on
Vietnam, op. cit. (note 14), para. 14.
(though the Committee commended their progress in this area).117 In India, dowries
and child marriages continued to occur, as did the infanticide of girls.118 In several
states, rape within marriage was not an offence,119 and inadequate action had been
taken to redress maternal mortality caused by unsafe abortions.120 In 1998, the
Committee welcomed Japan’s abolition of restrictions on women’s eligibility to take
the national public service examination, the abolition of discriminatory compulsory
retirement, and of dismissals on grounds of marriage, pregnancy or childbirth.121
It also commended Japan for abolishing its practice of forcibly sterilizing disabled
women, but encouraged Japan to offer compensation to those who had already
undergone sterilization.122 Nepal retained laws punishing women for unwanted
pregnancies.123 The Committee noted surviving laws which discriminated against

women in relation to property rights and the right to a divorce in Sri Lanka and
Thailand.124
Several states were found to provide insufficient protection to ethnic minori-
ties.125 Discrimination against Koreans and Taiwanese in Japan attracted the
Committee’s disapproval, and although the committee noted Japan’s effort to
establish greater legal protection, it found that social exclusion of these groups
remained.126 The Committee expressed concern at Thai laws which discriminated
against minorities in their rights to hold land.127
117 HRC, Concluding Observations on Japan (1998), op. cit. (note 15), paras 16, 30; HRC,
Concluding Observations on the Hong Kong Special Administrative Region, op. cit. (note 35),
paras 7, 16; HRC, Concluding Observations on the Republic of Korea (1999), op. cit. (note 30),
para. 11; HRC, Concluding Observations on the Republic of Korea (2006), op. cit. (note 30),
paras 4, 5, 11; HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 12; HRC,
Concluding Observations on Japan (2008), op. cit. (note 20), paras 4, 15.
118 HRC, Concluding Observations on India, op. cit. (note 23), para. 16.
119 Ibid; HRC, Concluding Observations on Mongolia, op. cit. (note 27), para. 8; HRC, Concluding
Observations on Sri Lanka (2003), op. cit. (note 30), para. 20; HRC, Concluding Observations
on Thailand, op. cit. (note 16), para. 12.
Observations on Vietnam, op. cit. (note 14), para. 15; HRC, Concluding Observations on Sri
Lanka (2003), op. cit. (note 30), para. 12.
122 Ibid, para. 31.
123 HRC, Concluding Observations on Nepal, op. cit. (note 33), para. 8.
124 HRC, Concluding Observations on Sri Lanka (2003), op. cit. (note 30), para. 19; HRC,
Concluding Observations on Thailand, op. cit. (note 16), para. 11.
Observations on the Hong Kong Special Administrative Region, op. cit. (note 35), para. 3; HRC,
Concluding Observations on the Philippines, op. cit. (note 16), para. 18.
Japan (2008), op. cit. (note 20), para. 31.
TThe engagement of Asia-Pacific states with the UN Human Rights Committee 33
The Philippines and Japan were found to tolerate and even foster discrimination
on the basis of sexual orientation.128 The Committee commended the Hong Kong
SAR’s efforts to combat such discrimination.129
Many states were found to mistreat asylum seekers. Several states were found to
have inadequate mechanisms to determine refugee status, giving rise to the risk of
deporting asylum seekers to frontiers where they had a well-founded fear of
persecution.130 Australia’s policy of mandatory detention was found to violate
articles 9 and 14 of the ICCPR,131 and the Committee expressed deep concern
over reports of violence and sexual harassment in immigration detention facilities
in Japan.132
Finally, the Committee identified a number of miscellaneous human rights issues.

The Committee urged the Philippines to exercise great caution to minimize civilian
harm during its counter-insurgency operations: armed conflict in and evacuations
of civilian areas had resulted in a large number of civilian casualties.133 The
Committee urged Japan to accept responsibility for the ‘comfort women’ system
during the Second World War, prosecute its perpetrators, include references to the
system in history textbooks and censure any attempts to defame victims or deny
the events.134 The Committee criticized the Democratic People’s Republic of Korea
for its failure to take urgent action to combat the critical shortage of food available
to its population.135
Acceptance by Asia-Pacific states of the Optional Protocol

The First Optional Protocol to the ICCPR came into force on the same date as
the ICCPR.136 It allows a state party to recognize the competence of the Human
Rights Committee ‘to receive and consider communications from individuals who
claim to be victims of a violation by that state party of any of the rights set forth in
the Covenant’. Article 2 of the First Optional Protocol stipulates that individuals
claiming a violation must have previously exhausted all available domestic
128 HRC, Concluding Observations on the Philippines, op. cit. (note 16), para. 18; HRC, Concluding
Observations on Japan (2008), op. cit. (note 20), para. 29.
35), para. 4.
14), para. 21; HRC, Concluding Observations on the Hong Kong Special Administrative Region,
op. cit. (note 35), para. 10; HRC, Concluding Observations on New Zealand (2002), op. cit. (note
48), para. 11; HRC, Concluding Observations on Thailand, op. cit. (note 16), para. 17; HRC,
Concluding Observations on Japan (2008), op. cit. (note 20), para. 25.
131 HRC, Concluding Observations on Australia (2000), op. cit. (note 29), paras 3, 23.
14), para. 12.
remedies. The procedure is entirely written. The claimant (called the ‘author’)
submits a statement of the alleged violation, identifying the relevant right(s) under
the ICCPR.
The Petitions Unit of the Office of the High Commissioner for Human Rights,
having satisfied itself that the complaint raises an issue under the ICCPR, then
brings the complaint to the attention of the state party, requesting ‘written
explanations or statements clarifying the matter and the remedy, if any, that may
have been taken by that State’.137 The reply of the respondent state party is
supposed to be forthcoming within six months (article 4(2)), but in practice the
procedure often moves more slowly, with reminders required. Moreover, the
author is then permitted to make observations on the state party’s response, to

which the state party has a further opportunity to reply. While most complaints
are processed to the point where they are ready for final consideration by the
Committee within two to four years, some cases take longer.
With the ‘pleadings’ closed, the Committee considers the case in private session.
There is no right of appearance by authors or counsel. The Committee may (a) find
the case inadmissible by reason of its incompatibility with the provisions of the
ICCPR or of the Optional Protocol, (b) dismiss the case after a consideration of the
merits, or (c) find a violation. In the last event, in presenting its ‘views’ to the state
party and to the individual concerned, it directs the state party to provide a remedy
for the violation, which often includes monetary compensation to the author.138
The Committee has taken a nuanced position as to the legal status of its ‘views’
in cases under the Optional Protocol.139 While the Committee is not a court, the
Committee has recently noted in its General Comment No. 33 that its views ‘exhibit
some important characteristics of a judicial decision’.140 It goes on to state that:
‘[t]hey are arrived at in a judicial spirit, including the impartiality and inde-
pendence of Committee members, the considered interpretation of the language
of the Covenant, and the determinative character of the decisions’.141 Without
stating in so many words that its views are binding on the state to which they are
directed, the Committee regards them as ‘an authoritative determination by the
organ established under the Covenant itself charged with the interpretation of that
instrument’.142 Reliance is also placed by the Committee on the duty of states
parties under article 2(3)(a) of the ICCPR to ensure an effective remedy to those
whose rights have been violated, and also on the principle of good faith in carrying
137 Ibid, art. 4(2).

138 For a detailed examination of the procedure, and for a comprehensive survey of the decisions of
the Committee in Optional Protocol cases, see S. Joseph, J. Schultz and M. Castan, The International
Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd edn, Oxford: Oxford
University Press, 2004. See also J. Moeller and A. de Zayas, United Nations Human Rights Committee
Case Law 1977–20: A Handbook, Kehl am Rein: N.P. Engel Publisher, 2009.
139 General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the
International Covenant on Civil and Political Rights, UN Doc. CCPR/C/GC/33 (2008).
140 Ibid, para. 11.
141 Ibid.
142 Ibid, para. 13.
out their duty to cooperate with the Committee in the discharge of its functions
under the Optional Protocol.143
In the Asia-Pacific region only Australia, Mongolia, Nepal, New Zealand, the
Philippines, the Republic of Korea and Sri Lanka are states parties to the First
Optional Protocol, out of 113 states parties worldwide.
The extent to which individuals have availed themselves of the right to lodge
communications with the Committee has varied greatly in the region. No
communication has been lodged against Mongolia, and only one against Nepal.
By contrast more than 100 communications have been lodged against Australia.
This large number of complaints may be attributed in part to the absence of a
federal Bill of Rights in Australia, the enactment of which would enable litigants
to invoke directly the rights in the ICCPR. The number of cases involving
migration matters, especially mandatory detention of asylum seekers, where judicial
review is restricted, illustrates the point. It also seems that the availability of the
procedure is better known to lawyers in the more developed states of the region.144
Conclusions
Notwithstanding historic reservations held in the Asia-Pacific region about the
cultural relativity of human rights, there has been a slow but steady increase in the
willingness of states to become a party to the ICCPR and thus to submit themselves
to scrutiny by an international body. If that trend continues, the UN treaty body
system may satisfactorily complement any regional bodies such as ASEAN, or
others to be established, that do not have a compulsory monitoring arm.
The effectiveness of the Human Rights Committee in assessing the compliance
with the ICCPR is dependent not only on the number of states parties but on their
willingness to submit timely reports. There is evidence of some foot-dragging in
this respect. More use might be made by the Committee of its power to examine
‘country situations’ in the absence of a report, where submission has been greatly
delayed.
It might be argued that the process of UPR instituted by the UN Human Rights
Council could come to obviate the need for the treaty-body reporting system. That
would, however, be unfortunate if the present climate of politicization within the
Council continues, where criticism has become highly selective.145 In addition, the
143 Ibid, paras 14, 15.

144 As at November 2008, 105 cases had been registered from Australia as ready for consideration
by the Committee. Of these, violations were found in 24 cases, no violation in six, 32 cases were
found inadmissible, 28 were discontinued by the authors and 15 cases were pending. Additional
communications are in course of processing by the Petitions Unit prior to formal registration.
145 See, eg, the review of China by the Human Rights Council on 11 June 2009. No Western states
participated in the debate. The only critical comments, both of China’s record and of the
unsatisfactory nature of the review process, were from the representatives of the NGOs. See the
UN Press Release, available at: <http://www2.ohchr.org/english/press/newsFrameset-2.htm>
(accessed 13 September 2010).
Council has recently moved to denounce ‘unilateral coercive measures’ which have
the effect of impeding the ‘right to development as a universal and inalienable right
and an integral part of all human rights’. 146 This can only be read as aimed at the
practice of certain Western states that unilaterally impose investment, trade and
travel bans on states, and certain leaders of those states, with bad human rights
records as a means of bringing pressure to bear on them towards reform, or at least
to express disapproval. Such measures are not available to the international human
rights monitoring institutions. It is therefore difficult to understand the Council’s
resolution otherwise than as intended to protect recalcitrant states from effective
punishment and deterrence.
The meagre record of acceptance by Asia-Pacific states of the individual com-

plaints mechanism under the First Optional Protocol seems unlikely to improve.
Even though the views of the Committee are not, as such, strictly binding in law,147
relatively few states in the region would appear to be willing to allow an external
body to pronounce upon, in any manner, particular cases affecting them.
146 Human Rights and Unilateral Coercive Measures, UN Doc. A/HRC/RES/12/22 (2009). The
vote was 32 in favour of the resolution, 14 against. The majority was composed entirely of
developing countries, including Bangladesh, China, India, Indonesia, the Philiipines and the
Russian Federation. Voting against were the Western states plus Japan and the Republic of Korea.
147 On the misunderstanding that the views of the Committee were technically binding, the Chief
Justice of Sri Lanka declared, in 2006, that it was ‘unconstitutional’ to resort to the Committee.
2 Human rights monitoring
institutions and
multiculturalism
Nisuke Ando
Introduction
The Asia-Pacific region currently has no regional human rights protection
mechanism comparable to those in Europe, the Americas or Africa. This is
probably because Asia-Pacific countries are full of diversities in terms of history,
ethnicity, religion, language as well as social system. In the western part of Asia
there exists Middle Eastern countries where Islam is the predominant religion and
Arabic is largely spoken. Next to it lies an Indian sub-continent where Hinduism
prevails as the main religion, whereas Pakistan and Bangladesh are Muslim
countries. Further to the east, there are ASEAN countries, each of which has a
distinct character of its own with different languages and ethnic groups. While
Buddhism is widespread there, the Philippines is predominantly Catholic and
Indonesia is a Muslim country. In the eastern part of Asia, China, Korea and Japan
perhaps share Confucianism to a certain extent but have modern histories different
from one another. If Mongolia and large parts of Central Asia are included,
diversity increases, not to mention Siberia, the huge eastern part of Russia.
Moreover, Australia and New Zealand, together with the Pacific island countries,
add further diversities. Compared with these diversities, European countries have
Christianity in common and share similar historical experiences. On the Central
and South American continent, most of the countries are similar in both religion
and history. While it is true that African countries are all different, most of them
still share the common historical experience of colonial subjugation.
Thus, in the face of these diversities, it would be highly difficult for Asia and the
Pacific to form a single mechanism of regional human rights protection. The
countries of this area might instead choose to join the worldwide and universal
mechanisms for human rights protection. Indeed, the regional situation has
drastically changed in recent years. An increased number of Asian countries
including Japan, Korea (both North and South), Mongolia, Afghanistan, Nepal,
India, Sri Lanka, as well as some Islamic countries in the Middle East and all
countries of the Commonwealth of Independent States have become states parties
to most of the international human rights treaties sponsored by the United Nations.
This holds true for Australia, New Zealand and Timor Leste. In fact, the majority
of the ASEAN member states have also joined these treaties and recently ASEAN
itself decided to create a sub-regional human rights regime. Thus, there is no doubt
that all of these countries now share a variety of universal standards of human
rights. It should also be added that most of these countries have established national
human rights institutions in line with the Paris Principles of 1992,1 as well as some
transnational networks, such as the Asia Pacific Forum of National Human Rights
Institutions (‘APF’) and the Asian Network of National Institutions for the
Promotion and Protection of Human Rights (‘ANNI’), and have endeavored to
develop regional cooperation on human rights.
Against this backdrop, this chapter discusses the tension between universal
human rights values and multiculturalism that has arisen in the course of the
development of regional human rights cooperation, by drawing on the author’s

experience as a member of the Human Rights Committee (‘the Committee’) under
the International Covenant on Civil and Political Rights (‘ICCPR’). The ICCPR
is a partial codification of the Universal Declaration of Human Rights and the
purpose of the Committee is to implement ‘universal standards of human rights’
in the face of various local customs and domestic legal norms in each of the states
parties to the ICCPR. Naturally, conflicts are likely to arise between these local
customs and norms and universal standards,2 which inevitably pose challenges to
consider in shaping the institutional norms that should govern regional human
rights mechanisms in the Asia-Pacific. Although this chapter solely focuses on the
work of the Committee, it may well reflect the experiences of other international
human rights treaty bodies under the United Nations,3 in dealing with human rights
issues in the Asia-Pacific region.
This chapter first provides a brief account of multiculturalism in the context of
human rights monitoring institutions. The second section discusses how the
Committee has dealt with the issue of multiculturalism by highlighting specific cases
where a monitoring institution needed to apply universal standards of human rights
vis-à-vis specific local customs or domestic legal norms. The third and final section
concludes by suggesting some lessons learnt through the Committee’s practice
that may guide how regional human rights monitoring institutions should be
approached and developed in the Asia-Pacific.
1 National Institutions for the Promotion and Protection of Human Rights, GA Res. 48/134 (1993).
2 See generally Abdul Koroma, ‘International Law and Multiculturalism’, in S. Yee and J.-Y. Morin
(eds), Multiculturalism and International Law: Essays in Honour of Edward McWhinney, Leiden & Boston:
Martinus Nijhoff Publishers, 2009, p. 79; Edward McWinney, ‘Multiculturalism and
Contemporary International Law and Law-Making’, in A. Constantinides and N. Zaikos (eds),
The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa, Leiden & Boston:
Martinus Nijhoff Publishers, 2009, p. 47.
3 Including the Committee on Economic, Social and Cultural Rights, the Committee on the
Elimination of Racial Discrimination, the Committee on the Elimination of All Forms of
Discrimination against Women, the Committee against Torture and the Committee on the Rights
of the Child.
Human rights monitoring institutions and multiculturalism 39
Multiculturalism in the context of universal human
rights monitoring
What does ‘multiculturalism’ mean for human rights monitoring? First of all, it
implies an attitude that recognizes the existence of different values and concepts,
manifested in the form of local customs or legal norms, stemming from a variety
of cultures and traditions. Secondly, however, the essential task of the Committee
is to implement ‘universal standards of human rights’, as reflected in the ICCPR
through its main activities, that is, the consideration of states parties’ reports as well
as individual communications under the Optional Protocol. Thirdly, at the same
time, the ICCPR itself provides in article 31(2) 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’.
Thus, the Committee as a whole may be applying universal standards of human
rights as reflected in the ICCPR’s provisions, but the interpretation of those
provisions by each of the Committee members may not necessarily be the same.
That is sometimes evidenced in individual communications by the issuance of
separate opinions by Committee members which depart from the majority views
adopted by the Committee. Consequently, it is important to note not only the
difference of views between a state party and the Committee as a whole, but also
the difference of opinions among the Committee members themselves. The scope
for accommodating different local customs and legal norms is thus arguably built
in through the process of deliberation among the Committee members. The follow-
ing analysis of specific cases dealt with by the Committee will illustrate this point.
The main activities of the Committee are the consideration of states parties’
reports under the ICCPR and the consideration of individual communications
under the Optional Protocol. One particularly interesting case that illuminates the
role of multiculturalism in a general setting is Egypt’s declaration made upon its
ratification of the ICCPR in 1982:
Taking into consideration the provisions of the Islamic Shariah and the fact
that they do not conflict with the text annexed to the instrument [the
Covenant], we accept, support and ratify it . . .4
During the consideration of the initial report as well as the second, third and fourth
combined periodic reports of Egypt, many Committee members raised the issue
of gender inequality.5 The members pointed out the discrepancies between the
4 Egypt signed the ICCPR on 4 August 1967 and made the declaration when it ratified the ICCPR
on 14 January 1982. The identical declaration was made both to the ICCPR and ICESCR, which
can be found in the UN Treaty Collection database, available at: <http://treaties.un.org>
(accessed 12 May 2010).
5 See, eg, Human Rights Committee, 48th sess., 1247th mtg, UN Doc. CCPR/C/SR.1247 (1993),
para. 9; Human Rights Committee, 76th sess., 2050th mtg, UN Doc. CCPR/C/SR.2050 (2002),
para. 40.
relevant ICCPR provisions and the Egyptian laws and customs in question. Finally,
in its Concluding Observations in 2002, the Committee noted the general and
ambiguous nature of Egypt’s declaration and recommended that Egypt should
either clarify the scope of the declaration or withdraw it altogether.6
It was clear that there was a tension between the universal standards of human
rights and local customs and legal norms that prevailed in Egypt, as in many other
Islamic countries. Yet, this tension might have been more effectively addressed in
dealing with specific cases brought to the Committee’s attention, rather than
through abstract and general statements by the Committee in response to Egypt’s
declaration. The next section shows how the Committee has been dealing with this
tension caused by multiculturalism in the application of universal standards under

specific human rights provisions.
Multiculturalism and the practice of the Human

Rights Committee
Non-discrimination (article 3)
The Human Rights Committee has found Japanese laws to be discriminatory
against women where the law prohibited women from remarrying within six
months following the date of dissolution or annulment of their former marriage,
and where the law provided for different marriageable ages between men and
women.7 Similarly, the Committee found that the minimum age for marriage under
the Asian Marriage Act of Suriname – 13 years old for females and 15 years for
males – was too young. The Committee accordingly recommended that Suriname
change the law so that intending spouses are sufficiently mature to decide with the
free and full consent of their own.8
In some states parties, polygamy and other forms of inequality against women,
as well as female genital mutilation, are still practised or are not legally prohibited.
Thus, the Human Rights Committee has recommend change or review of the
relevant domestic laws of some African states as well as of some Islamic states.9 In
certain states parties, the law provides a less severe sentence for husbands who
murder their wives when caught in the act of adultery (also known as honour killings
6 Human Rights Committee, Concluding Observations on Egypt, UN Doc. CCPR/CO/76/EGY

(2002), para. 5.
7 Human Rights Committee, Concluding Observations on Japan, UN Doc. CCPR/C/79/Add.102
(1998), para. 16.
8 Human Rights Committee, Concluding Observations on Suriname, UN Doc. CCPR/CO/
80/SUR (2004), para. 18.
9 See, eg, Human Rights Committee, Concluding Observations on Mali, UN Doc. CCPR/CO/
77/MLI (2003), paras 10(a), 11; Human Rights Committee, Concluding Observations on Benin,
UN Doc. CCPR/CO/82/BEN (2004), para. 10; Human Rights Committee, Concluding
Observations on Morocco, UN Doc. CCPR/CO/82/MOR (2004), para. 30; Human Rights
Committee, Concluding Observations on Kenya, UN Doc. CCPR/CO/83/KEN (2005),
paras 10, 12.
or crimes) than in ordinary cases of murder, and the Committee expressed its view
that such laws are not in conformity with article 3 of the ICCPR.10
However, some cultural traditions are difficult to change through mere changes
to the law. For example, dowry and dowry-related violence, as well as sati (self-
immolation of widows), were still practised in India despite the government’s efforts
to prohibit them by law. A preference for male children is still dominant in some
countries such as India, sometimes leading to feticide or infanticide of females.
The Human Rights Committee has requested states to take further measures to
eradicate such practices and to protect women from discriminatory practices.11
Cruel, inhuman or degrading treatment or punishment

(article 7)
During the oral consideration of its initial report, the Sudanese delegation stressed
that while some Committee members challenged the justification for penalties
imposed in accordance with Islamic laws, such punishments could not be considered
cruel or degrading for Muslims because they were imposed by the God and emanated
from His will as expressed in the Koran. A Committee member contended that
certain punishments, such as lapidation (stoning), the amputation of limbs and
crucifixion were indeed cruel, inhuman and degrading in the view of the Committee.
However, the Sudanese delegation countered that, in the case of certain Islamic laws
not complying with the ICCPR’s provisions, the latter should be adapted to the recent
Islamization movement and the wording of the ICCPR provisions, which dated from
a by-gone era, should be amended to reflect the evolution of the world.12
In this connection, it must not be overlooked that in many states parties where
Roman Catholicism is the dominant religion, abortion is made a crime or is severely
restricted. As a result, even women with pregnancy caused by rape or incest have
to undergo high-risk clandestine surgery. A similar situation prevails in Ireland,
where women may lawfully obtain abortion only when the mother’s life is in danger
or when she is at risk of a nervous breakdown. Sometimes, women attempt to go
abroad where abortion is legally practised in safer conditions, but then the Irish
government refuses to grant a passport. In those cases, the Committee took the
same approach as it did with the Islamic culture and recommended changes to the
relevant domestic laws.13
The issue of article 7 arises even in relation to the traditional ways in which some
states parties carry out criminal proceedings and the execution of death sentences.
10 General Comment No. 28: Equality of Rights between Men and Women (art. 3), UN Doc.
CCPR/CO/21/Rev.1/Add.10 (2000), para. 31.
11 See, eg, Human Rights Committee, Concluding Observations on India, UN Doc. CCPR/CO/
79/Add.81 (1997), para. 16.
12 Report of the Human Rights Committee, GAOR 46th sess., Supp. No. 40, UN Doc. A/46/40
(1991), paras 506, 510, 519.
13 See, eg, Human Rights Committee, Concluding Observations on Ireland, UN Doc. CCPR/C/
IRL/CO/3 (2008), para. 13.
On 11 January 1999, Natalia Schedko, a Belarusian national, submitted a com-
munication to the Human Rights Committee on behalf of herself and her deceased
son, alleging violations of articles 6 and 14 with respect to the criminal proceedings
which had resulted in her son’s conviction and execution.14 The Committee
rejected her claims because they related to the evaluation of facts and evidence
which was essentially left to domestic courts.15 However, her family had never been
informed of the date and hour of her son’s execution nor the exact site of his burial,
causing the family anxiety and mental distress which the Committee regarded as
violating article 7.16 The Committee noted a similar situation in its consideration
of the initial report of Tajikistan and recommended that the state party notify the
date of execution and reveal the burial site of the executed.17

When the issue concerns cruel, inhuman or degrading treatment or punishment,
there is little scope for multiculturalism to play a role in justifying any departure
from the international norm. This is reflected in the Committee’s consistent
approach in relation to this fundamental human right irrespective of the religion
or custom that might be at play behind the state’s action or inaction.
Protection of privacy and the family (articles 17 and 23)

On 25 December 1991, Nicholas Toonen, an Australian citizen, submitted a
communication to the Human Rights Committee alleging that the Tasmanian
Criminal Code criminalized all forms of sexual contact between consenting adult
homosexual men, in violation of articles 2(1), 17 and 26 of the ICCPR.18 In this
case the state party itself, Australia, conceded that consensual sexual activity in
private came under the concept of ‘privacy’ stipulated in article 17 of the ICCPR.
The Tasmanian authorities, a state government within the federation of Australia,
maintained that no prosecution under the relevant provision of the Criminal Code
had been instituted since 1984 and that the provision could be justified on public
health or moral grounds. Yet, the state party acknowledged that the risk of the
Code being applied to Toonen remained and that there was by then a general
Australian acceptance not to put a person at a disadvantage on the basis of his or
her sexual orientation. Furthermore, according to the claimant, Australia was a
pluralistic society where citizens had different and at times conflicting moral codes.
In such a society, the claimant argued that the proper role of criminal laws should
not be to disproportionately entrench these different moral codes to the detriment
of human dignity and diversity.
14 Communication No. 886/1999, UN Doc. CCPR/C/77/D/886/1999 (2003).

15 Ibid, para. 9.3.
16 Ibid, para. 10.2.
17 Human Rights Committee, Concluding Observations on Tajikistan, UN Doc. CCPR/CO/
84/TJK (2005), para. 9.
18 For a detailed analysis of the case, see, eg, I. Shearer, ‘The Toonen Case’, Australian Law Journal
69, 1995, p. 600; H. Charlesworth, ‘Protecting Human Rights – The Toonen Case’, Law Institute
Journal 68, 1994, p. 462.
In March 1994 the Human Rights Committee adopted its final views in which
it found a violation of Toonen’s rights under article 17(1) in conjunction with article
2(1) of the ICCPR.19 In its views, the Committee found that the criminalization of
homosexual activities in Tasmania could not be considered a reasonable means or
proportionate measure in pursuit of public health or moral grounds, including for
the purpose of preventing the spread of AIDS/HIV as claimed by the Tasmanian
authorities.20 On the contrary, the Committee felt that criminalization tended to
impede public health programs by driving underground many of the people at risk
of infection. The Committee concluded that the Tasmanian legislation in question
was not reasonable in the circumstance of the case and constituted an arbitrary
interference with Toonen’s privacy.21 Having found a violation of article 17, the
Committee did not consider it necessary to deal with the issue under article 26.
In June 1993, Francis Hopu and Tepoaitu Bessert, both ethnic Polynesians living
in Tahiti, French Polynesia, submitted a communication to the Committee, alleging
that the proposal by a French company to build a luxury hotel complex on their
ancestral burial ground would violate their rights to family and privacy under
articles 17(1) and 23(1) of the ICCPR.22 Hopu and Bessert also claimed a violation
of their rights under article 27 (minority rights), but due to a French declaration
not to be bound by this article, the Committee excluded it from its consideration
of the claim. Five Committee members stood against this exclusion, stating that
the French declaration only covered the Metropolitan area of France and did not
extend to the overseas territories, including Polynesia.23 Accordingly, they
considered that the Committee should have dealt with the claim in the light of
article 27 as well.
Four other Committee members were sympathetic to the minority opinion, but
emphasized that the term ‘family’ in articles 17 and 23 should not be interpreted
so broadly as to cover the whole of the indigenous population of an area.24 Likewise,
in their view, the notion of ‘privacy’ should not be so broadly interpreted as to
include a site publicly accessible to any person.25 Thus, the minority found no
violation of any ICCPR provision in this case. However, the majority of Committee
members accepted the claim, finding a violation of articles 17(1) and 23(1) on the
grounds that the construction of the hotel complex on the burial grounds arbitrarily
interfered with the claimants’ rights to family and privacy, taking into account
cultural traditions in defining the term ‘family’ in this specific situation.26
The rights to family and privacy can be used to recognize and preserve multi-
culturalism in specific situations of human rights violations. The above cases show

20 Ibid, para. 8.5.
21 Ibid, para. 8.6.
22 Communication No. 549/1993, UN Doc. CCPR/C/60/D/549/1993/Rev.1 (1997).
23 Ibid, p. 15.
24 Ibid, p. 16.
25 Ibid, p. 17.
26 Ibid, p. 13, para. 10.3.
that the Human Rights Committee has sometimes even stretched the concepts of
multiculturalism or pluralism to the limit (or, in the author’s view, even beyond its
limit in the case of Hopu and Bessert).
Freedom of thought, religion and expression (articles 18

and 19)
In September 1999, Raihon Hudoyberganova, an Uzbek national, submitted a
communication to the Committee alleging that she had been excluded from the
Tashkent State Institute for Eastern Languages because she had refused to remove
her ‘hijab’ as required by the Institute’s administration. She further argued that
such requirement violated her right to manifest her religious beliefs by wearing the
‘hijab’.27 As a matter of fact, the requirement of the administration was based on
a newly enacted law prohibiting all Uzbek nationals from wearing religious dress
in public places. In its views adopted on 5 November 2004, the Committee
concluded that there had been a violation of article 18(2), which provides that ‘[n]o
one shall be subject to coercion which would impair his freedom . . . to adopt a
religion or belief of his choice’.28 At the same time the Committee had to admit
that neither she nor the state party had specified what precise kind of attire she was
wearing which was referred to as the ‘hijab’. Perhaps because of this uncertainty,
one Committee member found it difficult to join in the majority view,29 and another
member found no violation of the ICCPR.30
A similar episode was presented earlier when, on 9 June 1986, Karnel Singh
Bhinder, a naturalized Canadian citizen, submitted a communication to the
Committee alleging that Canadian regulations violated article 18 by requiring
railway workers to wear safety headgear in certain areas, thus preventing him from
wearing a turban, a symbol of his Sikh faith.31 In this case, however, the Committee
rejected his claim, noting that while he attempted to manifest his religious belief
by wearing a turban, article 18(3) authorized limitations on the right to manifest
one’s belief when it was necessary to protect public safety.32
On 14 January 1991 A.R. Coeriel and M.A.R. Aurik, two Dutch citizens,
submitted a communication to the Committee alleging that the Dutch authorities’
refusal to change their current surnames prevented them from furthering their
studies for the Hindu priesthood in violation of article 18. They also argued that
the refusal constituted arbitrary or unlawful interference with their privacy in
violation of article 17.33 As to their claim under article 18, the Committee noted

28 Ibid, para. 6.2.
29 Ibid, p. 12 (Individual Opinion of Committee Member Ms Ruth Wedgwood).
30 Ibid, pp. 9–10 (Individual Opinion of Committee Member Mr Hipolito Solari-Yrigoyen
(dissenting)).
32 Ibid, para. 6.2.
that the regulation of surnames and the change thereof were eminently a matter
of public order and restrictions were permissible under paragraph 3 of that
provision, thus rendering the first claim inadmissible.34 As to their claim under
article 17, in its final views, the Committee noted that their earlier request to change
their first names had been granted and that the issue of unlawfulness did not arise
since the change of surnames was regulated by law in the Netherlands.
According to the state party, however, the refusal was based on the grounds that
Coeriel and Aurik had not shown that the change of surnames was essential for
them to pursue their studies and that the new names they requested to be
recognized were not ‘Dutch sounding’.35 The Committee concluded that these
grounds were not reasonable and that the refusal on unreasonable grounds
constituted ‘arbitrary’ interference with privacy in violation of article 17.36 Two
Committee members dissented, one indicating a reservation about including ‘family
name’ in the sphere of ‘privacy’ protected by article 17,37 and the other expressing
doubt about adding ‘reasonableness’ to expand the scope of article 17.38
The Committee’s approach indicates that the freedoms of thought, religion and
expression provide strong leverage to protect multiculturalism against coercive or
arbitrary interference by governments, unless the restrictions imposed clearly fall
within the ambit of the express exceptions.
Minority rights (article 27)

The issue of multiculturalism often arises in relation to minority rights under article
27, including in cases concerning indigenous peoples (which are not separately
mentioned in the ICCPR). On 29 December 1977, Sandra Lovelace, a Canadian
citizen, submitted a communication to the Committee alleging that some provisions
of the Indian Act of Canada deprived her of her rights and status as a native
American Indian, including her right to live on an Indian Reserve, in violation of
articles 2(1), 23(1) and (4) and 27.39 She argued that while an Indian woman lost
those privileges by marrying a non-Indian, an Indian man kept them even after
marrying a non-Indian. The Canadian government admitted that some provisions
of the Indian Act required reconsideration and reform, but explained that the
Canadian legal system left Indian affairs with the Indian themselves, who were
unlikely to agree to revise the provisions in question.40
In its views, the Committee found a violation of article 27, stating that ‘it does
not seem to the Committee that to deny Sandra Lovelace the right to reside on the
34 Ibid, para. 6.1.

36 Ibid.
37 Ibid, p. 10 (Individual Opinion by Mr Nisuke Ando (dissenting)).
38 Ibid, p. 13 (Individual Opinion by Mr Kurt Herndl (dissenting)).
39 Communication No. R.6/24, UN Doc. A36/40 (1981), p. 166.
40 Ibid, para. 5.
reserve is reasonable, or necessary to preserve the identity of the tribe’.41 The
Committee was of the view that although statutory restrictions on the right to
residence could not be ruled out under article 27, they must have both a reason-
able and objective justification and be consistent with the other provisions of the
ICCPR.42
In December 1985 Ivan Kitok, a Swedish citizen of Sami ethnic origin, sub-
mitted a communication to the Committee alleging that his right under article 27
was violated because he could not engage in reindeer husbandry like other
members of the Sami community due to certain provisions of the Reindeer
Husbandry Act.43 The Swedish government explained that the Act aimed to
preserve and protect the traditional reindeer husbandry of the Sami by limiting the
number of reindeer as well as reindeer breeders and making the husbandry
economically viable in the contemporary conditions of urbanization and limited
availability of land. In order to achieve this aim, the Sami were divided into
reindeer-herding Sami, who were members of a Sami village, and non-reindeer-
herding Sami. If a Sami engaged in any profession other than husbandry for longer
than three years, they would lose their status and the right to reindeer-herding.
Although Kitok belonged to the latter group of non-reindeer herding Sami, he was
granted special permission by the Sami community to engage in reindeer-herding
on payment of certain charges. In its views, the Committee concluded that the
restrictions imposed on Kitok’s herding were based on reasonable and objective
grounds and there was no violation of article 27.44
The Committee has been conscious of the significance of protecting minority
and indigenous rights. The ICCPR does not prohibit states parties from imposing
restrictions by national legislation. In its views, however, national legislation
imposing restrictions to preserve traditional cultures must have a reasonable and
objective justification.
General observations
The brief account of the cases above demonstrates how the Committee has been
dealing with possible conflicts between ‘universal standards of human rights’ and
different local customs and domestic legal norms. On the basis of those cases, the
following general observations can be made. First and foremost, a general and
abstract discussion about possible conflicts or relationships between universal
standards and multiculturalism is not very productive. It is true that such discussion
may provide an exciting opportunity for satisfying our intellectual curiosity, but
human rights concern our life styles and daily behavior and thus any sudden and
drastic change to them may cause confusion and consequential damage. Human
41 Ibid, para. 17.

42 Ibid, paras 15–16.
44 Ibid, para. 9.5.
rights issues require a careful balancing of the various interests of many persons
involved and finding a solution, if any, should be a time-consuming task. Many
specific human rights issues arising from the tension between universal standards,
local customs and domestic legal rules require time and energy to resolve and hence
cannot and should not be settled with one stroke.
Secondly, solutions to human rights issues should not be attempted by imposing
one particular set of concepts, values or norms over another. It is not impossible
to introduce a new law by which existing values, norms or local customs of human
rights are to be overridden. However, unless the law is based on the genuine consent
of the people to whom it is applied, it is not likely to be observed and will not achieve
its objectives. National legislation can simply be enacted in response to the

Committee’s recommendation, but some cultural traditions and customs cannot
so easily be changed, as has been observed, for example, in dowry and dowry-
related violence in India. In order to secure the genuine consent of the people
involved, the process is necessarily incremental and time-consuming, but any
change of human rights concepts, values or norms must come from within the
people concerned.
Thirdly, flexibility to an extent is essential to accommodate multiculturalism in
applying universal standards of human rights. The rights to family and privacy,
freedoms of thought, religion and expression, and minority rights can be effective
vehicles for preserving and protecting multiculturalism against the unitary
restrictions of national public policy. Yet, there should be little scope of flexibility
when it comes to violations of fundamental human rights such as freedom from
cruel, inhuman or degrading treatment or punishment.
Fourthly, as to the means of realizing universal human rights norms and values,
dialogue rather than adjudication seems to be essential. It is admitted that the
Concluding Observations which the Committee adopts after considering a state
party’s report are not legally binding but recommendatory in nature. And yet, these
recommendations often lead to the amendment of domestic laws. For example,
during the consideration of the initial report of Japan, some members of the
Committee drew to the attention of the Japanese government the inequality
between a father and mother in granting Japanese nationality to their child. The
government took this point seriously and, with strong pressure exerted by Japanese
women’s non-governmental organizations, assisted by Japan’s signature of the
Convention on the Elimination of All Forms of Discrimination against Women,45
the law was revised to provide for equality in that respect.46
Similarly, the Dutch government accepted the Committee’s recommendation
to equalize the entitlement of married women to unemployment benefits (which
had been less favorable than those received by men and unmarried women) and
compensated married women for the loss they suffered under the previous regime.
These examples prove that even recommendations can result in changes to
45 1249 UNTS 13 (entered into force 3 September 1981).

46 Kokuseki-ho, Law No. 147/1950 amended by Law 45/1984.
domestic laws and regulations if the government and people concerned are ready
to accept international standards.
Last but not least, it should be emphasized that human rights concepts, values
or norms, whether national or international, are not permanently fixed. With
changes in human knowledge and technology, various new phenomena emerge in
society. In particular, in this era of globalization, new phenomena spread rapidly
among countries and peoples around the world and do affect our ways of thinking
and behaving.
As the discussion of the above cases illustrates, multiculturalism is a reality and
an undisputable fact in any discussion and development of human rights moni-
toring institutions in the Asia-Pacific region. However, given the on-going changes
of the socio-political and demographic picture in the Asia-Pacific region, the tension
between universal values and local customs and norms will have to be addressed
by reference to the specific contexts and circumstances where such tension arises.
3 Challenges to a human
rights mechanism in the
Asia-Pacific region: the
experience of the Universal
Periodic Review of the
UN Human Rights Council
Shigeki Sakamoto
Introduction
The UN Commission on Human Rights, the predecessor of the Human Rights
Council, was heavily criticized for several reasons. First, the Commission was
politicized in that it adopted resolutions condemning human rights violations
only in selected countries, while failing – due to political considerations – to adopt
any resolution condemning serious human rights violations in other countries.
Secondly, it applied double standards, meaning that the standard it adopted for
condemning human rights violations varied depending on the country concerned.
Some people even maintained that at the root of the problem was the fact that
countries openly violating human rights became members of the Commission.1 To
borrow the words of former UN Secretary-General Kofi Annan in his opening
statement to the first session of the Human Rights Council, a ‘culture of con-
frontation and distrust’ pervaded the Commission. In place of this culture he
stressed the need for a ‘culture of cooperation and commitment’. In closing his
statement, however, he warned ‘never [to] allow this Council to become caught
up in political point-scoring or petty manoeuvre’.2
Therefore, it could be said that the Human Rights Council’s future hinges on
whether it can change its way of thinking, approach and methodology concerning
human rights issues. To convert the culture of confrontation and distrust into a
culture of cooperation and commitment, it is necessary both to develop a common
1 The Secretary-General’s High-Level Panel pointed out that ‘we are concerned that in recent years
states have sought membership of the Commission not to strengthen human rights but to protect
themselves against criticism or to criticize others. The Commission cannot be credible if it is seen
to be maintaining double standards in addressing human rights concern’. See A More Secure
World: Our Shared Responsibility: Report of the Secretary-General’s High-level Panel on
Threats, Challenges and Change, UN Doc. A/59/565 (2004), p. 74, para. 283.
2 The UN Secretary-General’s Address to the Human Rights Council, Geneva, 19 June 2006,
available at: <http://www.un.org/apps/sg/sgstats.asp?nid=2090> (accessed 20 August 2010).
understanding of the idea that the protection of human rights would benefit all
parties in the long run, and to build a relationship of trust which encourages, not
accusation or coercion, but understanding and conviction.3 The question explored
in this chapter is whether, and to what extent, the Asia-Pacific countries have so
far contributed to fostering common ground in considering and approaching
human rights issues under the new Universal Periodic Review (‘UPR’) mechanism.
The Human Rights Council is comprised of 47 member states, whereas the
former Commission on Human Rights had 53 members.4 Asia-Pacific states are
key players in the Council: the group of Asian-Pacific states and the group of
African states command 13 seats respectively, which led both groups to the majority
position in the Council. The founding UN General Assembly Resolution 60/251

has certainly endowed the Council with a higher institutional status within the UN
system, establishing it as a subsidiary organ of the UN General Assembly, in
comparison with the status of the Commission on Human Rights as a subsidiary
body of the UN Economic and Social Council.5
Even if the UN human rights machinery is strengthened, any progress in
addressing human rights concerns and violations will be incremental. In the
consideration of human rights issues, there are still sharp divisions between
developed states and developing states in the Asia-Pacific region, which indicate
that there is still a long way to go to establish a human rights mechanism in the
region. To demonstrate this point and draw some lessons for future efforts in
establishing a regional human rights monitoring body in the Asia-Pacific region,
this chapter examines the UPR of the Human Rights Council and how it has been
implemented, with a particular focus on China, the Democratic People’s Republic
of Korea (‘DPRK’) and Sri Lanka. The statements and voting behaviour of Asia-
Pacific member states still show a cautious attitude towards addressing the human
rights concerns of their neighbouring states.
The ideal and reality of Universal Periodic Review

The UPR mechanism is a key element of departure from the Commission on
Human Rights. The new peer review mechanism complements, but does not
replace, existing reporting procedures under human rights treaties. The UN
Secretary-General explains its significance as follows:
3 In accordance with General Assembly Resolution 60/251, in which the Assembly decided that
the Human Rights Council should review its work and functioning five years after its establishment
and report back to the Assembly. At its 12th session the Council decided to establish an open-
ended intergovernmental Working Group to review the work and function of the Council, which
is expected to hold two sessions of five working days each after its 14th session scheduled in
September 2010.
4 As for the background to the establishment of the Human Rights Council, see K. Boyle, ‘The
United Nations Human Rights Council: Origins, Antecedents, and Prospects’, in K. Boyle (ed.),
New Institutions for Human Rights Protection, Oxford: Oxford University Press, 2009, p. 11.
5 N. Schrijver, ‘The UN Human Rights Council: A New “Society of the Committed” or Just Old
Wine in New Bottles?’, Leiden Journal of International Law 20, 2007, p. 822.
Challenges to a human rights mechanism in the Asia-Pacific region 51
Crucial to peer review is the notion of universal scrutiny, that is, that the
performance of all member states in regard to all human rights commitments
should be subjected to assessment by other states. The peer review would help
avoid, to the extent possible, the politicization and selectivity that are hallmarks
of the Commission’s existing system.6
The review has the following characteristics: the states concerned are actively
engaged in the process; it is a cooperative mechanism based on interactive dialogue;
and it does not overlap with, but complements, the work done by the treaty bodies.
The review is based on the following documents: (a) the UN Charter; (b) the
Universal Declaration of Human Rights; (c) Human rights instruments to which

the state is party; and (d) voluntary pledges and commitments made by the state,
including those undertaken when presenting its candidature for election to the
Council. The duration of the review is three hours for each country.
The outcome of the review is presented as a report consisting of a summary of the
proceedings of the review process, conclusions and/or recommendations, and the
voluntary commitments of the state concerned. The final outcome of the review is
adopted by the plenary of the Council.7 The outcome of UPR is to be implemented
primarily by the state concerned and, as appropriate, by other relevant stakeholders
(such as non-governmental organizations – ‘NGOs’). The subsequent review focuses
primarily on the implementation of the preceding outcomes. The international
community will assist in implementing the recommendations and conclusions in the
form of capacity-building and technical assistance, in consultation with, and with the
consent of, the state concerned. The Council, in considering the outcome of the UPR,
will decide whether and when any specific follow-up is necessary.
The UPR process is designed to achieve the following objectives: (a) an impartial
and transparent assessment of the human rights situation in the country under
review, including positive developments and the challenges faced by the country;
(b) sharing of best practices; (c) an emphasis on enhancing cooperation for the
promotion and protection of human rights; and (d) the provision of technical
assistance and capacity-building to the country concerned.8 Such aims are ulti-
mately expected to improve the human rights situation on the ground and to assist
the state in the fulfilment of its human rights obligations and commitments.
As at the end of May 2010, the Council had reviewed the human rights situa-
tions of 128 countries, namely two-thirds of UN member states, while securing
6 UN Secretary-General’s Explanatory Note, UN Doc. A/59/2005/Add.1 (2005), para. 8.

7 According to the footnote of Human Rights Council Resolution 5/1 (2007), ‘the universal periodic
review is an evolving process; the Council, after the conclusion of the first review cycle, may review
the modalities and the periodicity of this mechanism, based on best practices and lessons learned’.
See Human Rights Council Resolution 5/1 (2007): Institution-Building of the United Nations
Human Rights Council, Annex 1 Universal Periodic Review Mechanism, para. 3(g), available at:
<http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_5_1.doc> (accessed 20
August 2010)
8 UN Secretary-General’s Explanatory Note, op. cit. (note 6), para. 8.
participation of all the states concerned. Although UPR is an intergovernmental
process, it is expected that UPR will ‘be conducted in an objective, transparent,
non-selective, constructive, non-confrontational and non-politicized manner’ as
confirmed in the institution-building resolution.9 The interactive dialogues with
the states under review continue to attract strong interest and engagement from
many quarters. In fact, at the sixth session of the UPR working group (‘Working
Group’) in late 2009, an average of 47 delegations intervened in each review.10
States parties to human rights treaties, such as the International Covenant on
Civil and Political Rights,11 are also exposed to the review of their governmental
reports required under the relevant treaties they are members of every two to five
years. The uniqueness of the UPR mechanism is the non-exclusivity of its review
process, since it requires all countries, including non-state parties to particular
human rights treaties, to be subject to the review of their national reports submitted
to the Council. In addition, states mutually review governmental reports under the
UPR mechanism, while under the human rights treaties an independent committee
of experts conducts reviews. The implementation of UPR in a constructive manner
has a chance of filling the gap that exists in the existing human rights treaty-based
monitoring institutions. Yet, the history of the Council’s predecessor warns also of
the risk that it may become stigmatized with political confrontation, posing great
harm to the idea of genuine human rights accountability.12
The Council agreed upon the working methods of the UPR mechanism in June
2007 and a calendar for the review of all 192 UN member states over a four-year
cycle in September 2007.13 The first session of UPR, involving 16 states, was held
in April 2008. The first state reviewed was Morocco, in the first session in 2008,
and the last state scheduled for review in the first cycle is to be Moldova in the
twelfth session in 2011. All member states of the Council are to be reviewed during
their term of membership. A group of three rapporteurs, selected by the drawing
of lots among the Council members and from different regional groups (the troika),
will be formed to facilitate each review and to prepare the report of the Working
Group.
Reviews are conducted on the basis of the following documents: (1) the national
report prepared by the state under review (within 20 pages); (2) the report prepared
by the Office of the High Commissioner for Human Rights (‘OHCHR’) concerning
human rights situations in the state under review (within 10 pages); and (3) the
9 Ibid.
10 Opening statement by H. Alex Van Meeuwen, President of the Human Rights Council at the 4th
session of the Human Rights Council Advisory Committee, 25 January 2010 (copy on file with
the author).
12 F. Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’, Human Rights
Law Review 7, 2007, p. 15.
13 For details, see Human Rights Council, Modalities and Practices for Universal Periodic Review
Process, UN Doc. 8/PRST/1, available at: <http://ap.ohchr.org/documents/E/HRC/p_s/A_
HRC_PRST_8_1.pdf> (accessed 22 June 2010).
summary prepared by OHCHR of information which relevant stakeholders,
including NGOs, provide (within 10 pages).14 These documents are simpler and
much shorter than any reports submitted to human rights treaty bodies under their
review processes. Such simplification seems to be welcomed by the states parties,
which have been overburdened with preparation for the submission of their reports
to treaty bodies.
The Working Group of the UPR mechanism is thus expected to review 192
countries’ human rights situations in four years. In other words, the review will
have to be conducted for 48 countries per year. The Working Group has three
sessions annually. Therefore, it is required to review 16 countries’ human rights
situations during one session, which runs for only ten days. The Working Group
can thus spend a day for two countries’ reviews, or three hours per review. Of these
three hours, one hour is allocated to the state under review (30 minutes for its
opening statement and another 30 minutes for answers to questions by other
countries and its summary statement), and the remaining two hours are reserved
to the member states of the Human Rights Council and observer states to make
statements. The Council’s member states and observer states are allowed three
minutes and two minutes respectively to speak. This means that the two hours for
making statements would be used up by only 40 out of all 47 Council member
states. This insufficiency of allocated time for each review has been heavily
criticized, especially by the western states.
In this context, it is worthwhile to note that the Council had a general debate
on UPR on 25 September 2009. Sweden expressed its concern on behalf of the
European Union (‘EU’) in the following terms:
EU fully supported UPR mechanism as one of the most important instruments

of the Council, but reiterated its willingness for adjustments to be made so that
all states could participate. We are concerned that some aspects of the current
UPR procedures do not adequately allow for full participation by UN member
states. As others have noted, we would like to explore ways to facilitate the true
universality of this review by ensuring adequate and fair participation by those
who wish to speak in UPR sessions.15
The United States shared the same concern, suggesting that ‘one way to ensure
equal opportunity is if the number of delegations wishing to speak on a particular
country exceeds the given limit, then the allotted time should be divided equally
between all speakers’.16 Japan also ‘believed that the opportunity to speak should
be given to as many states as possible and did not think that it was appropriate to
14 Human Rights Council Resolution 5/1 (2007) op. cit. (note 7), para. 15.
15 Human Rights Council Holds General Debate on Universal Periodic Review Mechanism,
available at: <http://www.unog.ch/unog/website/news_media.nsf/%28httpNewsByYear_en
%29/90E009446AD5755CC125763C004F3EA5?OpenDocument> (accessed 22 June 2010).
16 Ibid.
allocate speaking slots to regional groups’,17 presumably reflecting its awareness
that the Asia-Pacific region can hardly agree to speak with one voice. How this
issue is going to be resolved may have implications for considering the format of
consultative dialogue in the Asia-Pacific region.
During the Working Group session, half an hour is allocated to adopt an
‘outcome report’ for the state reviewed. The state under review has the opportunity
to make preliminary comments on the recommendations and to choose to either
accept or reject them. At the end of every report, the following formula is inserted:
All conclusions and/or recommendations contained in the present report

reflect the position of the submitting state(s) and/or the state under review.
They should not be construed as endorsed by the Working Group as a whole.
NGOs may observe the review proceedings, but have no right to make statements
in any session of the Working Group. However, NGOs are given the opportunity
to make general comments before the adoption of the outcome in the plenary
session.18 The role of NGOs has only a limited effect on UPR.
All of the features of the work of the Human Rights Council during UPR indicate
that the review process is still deferential to state sovereignty in promoting
constructive dialogue between the state under review and other states. Such format
of dialogue may well be favoured among the Asia-Pacific countries, most of which
are still cautious towards a more intrusive examination of human rights situations
by any independent body.19 More important than the format, however, is how this
process is actually used to address serious human rights concerns and how it is
received by the state under review. The next section examines the actual imple-
mentation of UPR, focusing on three Asia-Pacific countries with serious human
rights concerns, namely, China, DPRK and Sri Lanka.
Universal Periodic Review in practice with the focus

on Asia-Pacific countries
The UPR of the People’s Republic of China

The Chinese Government was cooperative towards UPR and submitted its national
report within the fixed time limit. In its report, however, the government did not
mention the crisis in Tibet or the violent crackdown on Uyghurs in its Western
Xinjiang Uyghur Autonomous Region and stressed that ‘given differences in
political systems, levels of development and historical and cultural backgrounds, it
is natural for countries to have different views on the question of human rights’.20
17 Ibid.
18 Human Rights Council Resolution 5/1 (2007), op. cit. (note 7), para. 31.
19 See Chapter 1 of this book.
20 National Report of China, UN Doc. A/HRC/WG.6/4/CHN/1 (2008), pp. 5–6, para. 6.
During the interactive dialogue which followed, statements were made by 60
delegations, however 55 other delegations could not make their statements because
of the limited time allocated to this part of the process.21 During the proceedings,
the western states addressed the issue of ethnic minorities, including Tibetans and
Uyghurs. For example, Canada expressed deep concern about reports of the
arbitrary detention of members of ethnic minorities, including Tibetans, Uyghurs
and Mongols.22 Also, the United Kingdom expressed concern about the human
rights situation in the Tibet Autonomous Region and other Tibetan areas,
particularly as regards cultural rights and religious rights, including the use and
teaching of minority languages, history and culture.23 Switzerland shared the same
concern.24
In contrast, the Asia-Pacific states did not express such concerns. Of 11 Asia-
Pacific states which made statements, almost all of them praised China’s policy on
human rights. For example, India welcomed China’s commitment to engage in
exchanges and cooperation with other countries in the field of human rights and
to promote a non-selective approach to their international legal commitments. It
also praised the tremendous efforts made by China in reducing poverty and
attaining some of the Millennium Development Goals ahead of schedule.25 Similar
statements were made by Singapore,26 the Philippines,27 Bhutan,28 Vietnam,29
Indonesia,30 Thailand31 and Malaysia.32
During China’s review, the only Asia-Pacific countries which expressly refered
to the Tibet issue were Sri Lanka, Japan and Pakistan. However, Japan took up
this issue only in the abstract and with a softened tone, stating that:
China has adopted various preferential measures for ethnic minorities,

including Tibetans and Uyghurs, and has extended various economic and
social assistance to minorities as it aims to realize a ‘harmonious society’. It
recommended continuing its efforts to further ensure ethnic minorities the full
range of human rights including cultural rights.33
21 Report of the Working Group on the Universal Periodic Review: China, UN Doc. A/HRC/
11/25 (2009), p. 6, para. 26.
22 Ibid, p. 7, para. 28.
23 Ibid, p. 11, para. 42.
24 Ibid, pp. 7–8, para. 31.
25 Ibid, p. 14, para. 55. For details on the Millennium Development Goals, see the UN Development
Programme website at: <http://www.undp.org/mdg/basics.shtml> (accessed 22 June 2010).
26 Ibid, p. 7, para. 29.
27 Ibid, p. 8, para. 32.
28 Ibid, p. 9, para. 35.
29 Ibid, p. 13, para. 50.
30 Ibid, p. 18, para. 74.
31 Ibid, p. 23, para. 93.
32 Ibid, p. 24, para. 98.
33 Ibid, p. 18, para. 75.
Sri Lanka strongly defended China by observing that ‘[i]t rejected criticism
regarding Tibet, which Sri Lanka considers an inalienable province of China’.34
Likewise, Pakistan commented that:
[T]he tendency to politicize the UPR must be guarded against, noting

comments about the Tibet Autonomous Region, which it said reflect political
agendas and not an objective appreciation of the situation in Tibet, which it
said is an inalienable part of China and is so recognized by the entire
international community. . . . It noted that the Chinese Government abided
by its international human rights obligations and domestic laws.35
Similarly, other developing countries expressed their favourable opinions of the

Chinese Government. For example, Algeria, while regretting politicization of the
human rights situation in China during the review, made a remark similar to the
one that China made at the 1993 World Conference on Human Rights.36 Algeria
expressed its position as follows:
It saluted the importance given by China to cooperation and exchange with

other countries on human rights, adding that it considers that human rights
situations and efforts deployed must take into account the level of development,
cultural, historical and sociological contexts of each country.37
This statement seems to rehash an argument against the universality of human

rights made during the ‘Asian values’ debates in the 1990s.38 The developing states,
including most Asia-Pacific countries, clearly took an approach of ‘excessive praise
and timid criticisms’ of China, as Human Rights Watch put it.39 Numerous other
34 Ibid, p. 10, para. 39.

35 Ibid, p. 22, para. 88. Myanmar can be added to this group. Myanmar stated that ‘it sympathized
with and understood the challenges faced by China with regard to human rights issues. In this
connection, Myanmar strongly opposed politicizing human rights issues and using them to
interfere in others’ internal affairs’: ibid, p. 23, para. 94.
36 At the 1993 World Conference on Human Rights, the Chinese delegation remarked as follows:
‘The concept of human rights is a product of historical development. It is closely associated with
specific social, political and economic conditions and the specific history, culture and values of a
particular country. Different historical stages have different human rights requirements. Countries
at different development stages or with different historical traditions and cultural backgrounds
also have different understanding and practice of human rights. Thus, one should not and cannot
think [of] the human rights standard and model of certain countries as the only proper ones and
demand all other countries to comply with them’. Statement by H.E. Liu Huaqiu at the World
Conference on Human Rights at Vienna (1993), reproduced in Chinese Journal of International Law
1, 2002, p. 737.
37 Report of the Working Group on the Universal Periodic Review: China, op. cit. (note 21), p. 8,
para. 33.
38 See, Introduction of this book.
39 The Human Rights Watch critically commented on the process of UPR of China as follows: ‘The
URP process relies on the good will of states. As a result, the HRC’s credibility is severely
developing countries praised China’s efforts in promoting human rights.40 Sudan
even specifically supported the system of re-education through labour, stating that
it is a special legal system based on China’s realities.41 In contrast, the Czech
Republic recommended the abolition of the system,42 while Hungary also expressed
its concern about that system.43
During the interactive dialogue, 95 recommendations were formulated, of which
42 recommendations were supported by China. On the other hand, 50 recom-
mendations were critical of China, concerning such issues as freedom of expression
and association, the independence of the judiciary, guarantees for the legal pro-
fession, protection of human rights defenders, rights of ethnic minorities, reduction
of the death penalty, abolition of the re-education-through-labour program,

prohibition of torture, freedom of media and effective remedies for discrimina-
tion.44 China indicated that the other three recommendations pertained to
measures being implemented or which had already been implemented.45
The state under review has the primary responsibility to implement the accepted
recommendations contained in the first outcome. When the time comes for the
second review the state must provide information on how it has implemented
the recommendations made during the first review. In Human Rights Council
Resolution 5/1 regarding Institution-Building of the United Nations Human Rights
Council,46 however, it is not clear how the Council will handle the situation where
a state under review does not accept its recommendations.
The UPR of the Democratic People’s Republic of Korea
In its Resolution 63/167, the UN General Assembly expressed deep concern at

the continuing reports of systematic, widespread and grave violation of civil,
political, economic, social and cultural rights in the DPRK.47 The UN Secretary-
General also registered his serious concern about the lack of tangible progress on
the part of the DPRK government. He urged the DPRK to show visible signs of
challenged by those who do not have such will and undermine the process’. Human Rights Watch
Statement on UPR Outcome Report of China, 11 June 2009, available at: <http://www.hrw.
org/en/news/2009/06/10/human-rights-watch-statement-upr-outcome-report-china> (accessed
28 May 2010).
40 Including Libya, South Africa, Saudi Arabia, Mozambique, Uzbekistan, Sudan, Cuba, Ghana,
Angola, Morocco, Oman, United Arab Emirates, Nicaragua, Yemen, Jordan, The Islamic
Republic of Iran, Bahrain, Zimbabwe, Benin, Mali, Gabon, Palestine, Qatar and Senegal.
41 Report of the Working Group on the Universal Periodic Review: China, op. cit. (note 21), p. 12,
para. 45.
42 Ibid, p. 20, para. 82.
43 Ibid, p. 24, para. 97.
44 Ibid, pp. 27–31, paras 114, 117.
45 Ibid, p. 31, para. 115.
46 Human Rights Council Resolution 5/1 (2007), op. cit. (note 7).
47 General Assembly Resolution 63/167 (2008), para. 1.
domestic legal reform so as to fulfil its treaty obligations and to comply with
international standards in his 2008 report to the UN General Assembly.48
Therefore, the UPR of the DPRK, which was conducted on 7 December 2009,
received a great deal of attention and many western states in particular were
concerned about the human rights situation in the DPRK. In its report, the DPRK
stressed that:
it is of the view that as human rights are guaranteed by sovereign states, any
attempt to interfere in others’ internal affairs, overthrow the governments and
change the systems on the pretext of human rights issues constitutes violations
of human rights. In this sense, the DPRK holds that human rights immediately
mean national sovereignty.49
During the review process, 23 member states50 and 29 observer states51 participated
in discussion. Among the Asian-Pacific states, Japan, the Republic of Korea and
New Zealand expressed concern about the human rights situation in the DPRK.
For instance, Japan expressed its regret that the DPRK did not fully respond to the
various concerns of the international community regarding punishment of citizens
expelled or returned from abroad, public executions, abductions, and detention
facilities, among others.52 The Republic of Korea was concerned about detention
in political prison camps, violation of the freedoms of movement, expression,
thought and religion, the huge gap between the recognition of human rights in
legal codes and their actual implementation, and the situations of separated
families, prisoners of war and those forcefully abducted by state authorities.53 New
Zealand echoed concerns about restrictions on freedoms of religion, expression,
peaceful assembly and association, the right to privacy, equal access to information,
and the right to take part in the conduct of public affairs. The situation in labour
camps, the incarceration of dissidents and their families, and the continued use of
torture including public executions were also matters of concern.54 In addition,
48 Situation of Human Rights in the People’s Republic of Korea: Report of the Secretary-General,
UN Doc. A/63/332 (2008), para. 57.
49 National Report of DPRK, UN Doc. A/HRC/WG.6/6/PRK/1 (2009), p. 4, para. 15.
50 Twenty-three member states taking the floor were Brazil, Japan, the Republic of Korea, Cuba,
United States of America, Belgium, Pakistan, France, Nicaragua, United Kingdom, Mexico,
China, Indonesia, Norway, Slovenia, Qatar, Netherlands, Chile, Italy, India, the Philippines,
Nigeria and Hungary.
51 Twenty-nine observer states participating in the discussion were Algeria, Bolivarian Republic of
Venezuela, Belarus, Turkey, Malaysia, Syria, Thailand, Australian, Sri Lanka, Myanmar, Libya,
Iran, Vietnam, Zimbabwe, Israel, Yemen, Austria, Germany, Canada, Lao People’s Democratic
Republic, Sweden, Ireland, Poland, New Zealand, Palestine, Spain, Lithuania, Greece and
Switzerland.
52 Report of the Working Group on the Universal Periodic Review: Democratic People’s Republic
of Korea, UN Doc. A/HRC/13/13 (2010), para. 19.
53 Ibid, para. 20.
54 Ibid, para. 71. Also New Zealand called on DPRK to work constructively with the Special
Rapporteur on DPRK to help resolve human rights issues together.
Indonesia expressed concern about the unsolved abduction cases.55 Australia
expressed disappointment with the DPRK’s uncooperative attitude toward the UN
system.56
On the other hand, some Asia-Pacific countries positively evaluated the human
rights situation in the DPRK. Among them, China appreciated that the DPRK’s
constitution and laws upheld human rights.57 Pakistan appreciated the system of
ensuring full access to health and education services.58 Myanmar and Vietnam
were similarly favourable towards the DPRK’s practices.59
Many western states expressed concerns about a variety of human rights issues
in the DPRK, including extrajudicial execution, torture, inhuman or degrad-
ing treatment, freedom of expression, freedom of movement, disappearances of

political dissidents and abductions or missing persons, camps of political prisoners,
forced labour, discrimination based on social origin, reunification of families
separated by the war, systematic deprivation of due process, imposition of the death
penalty for political and religious reasons, violence against women and children,
early military training for children in schools, and human trafficking.60
However, the DPRK denied the existence of any of the alleged human rights
violations, claiming that the concerns expressed by the western states were the
products of bias against it. Eventually, 167 recommendations against the DPRK
were adopted. The number of recommendations is not so large, to the surprise of
many countries, and yet the DPRK remained firmly opposed to them. The DPRK
rejected 50 recommendations and has not expressed its view towards the other
117.61
UPR is not just an opportunity for condemning the human rights situation of
each state, but more importantly provides for constructive dialogue towards
improving the situation in a country. In the process of UPR, taking a one-sided
approach (whether negative or positive) is often not productive if it simply deepens
political confrontation. UPR is required to strike the proper balance between
competing views in order to facilitate a constructive dialogue. To that end, it will
be interesting to keep closely monitoring how this process works and develops over
time. As a state-driven process, UPR cannot be immune from politics. The
challenge posed to this system therefore is how and to what extent this political
process can achieve the objective originally envisaged: that is, ensuring universality
55 Ibid, para. 55.

56 Ibid, para. 33.
57 Ibid, para. 52.
58 Ibid, para. 26.
59 Ibid, paras 35, 51, respectively.
60 Ibid. Those countries include the United States of America (para. 22), Belgium (para. 23), France
(para. 32), the United Kingdom (para. 37), Mexico (para. 39), Norway (para. 56), Austria (para.
60), Germany (para. 61), the Netherlands (para. 63), Chile (para. 64), Sweden (para. 66), Spain
(para. 75), Greece (para. 77), Switzerland (para. 78), and Hungary (para. 79).
61 Report of the Working Group on the Universal Periodic Review: Democratic People’s Republic
of Korea, op. cit. (note 52), pp. 13–23, paras 90–1.
and objectivity in considering human rights issues and helping states to improve
their ability to comply with their human rights obligations.
The UPR of Sri Lanka and the eclipse of the eleventh special
session
The review of Sri Lanka was held on 13 May 2008, during which 56 delegations
made statements.62 The same lines of division were maintained as in the reviews
of China and the DPRK. The western states expressed concern about the human
rights situation in Sri Lanka. For instance, the United Kingdom condemned all
terrorism, noting that counter-terrorism measures must be in accordance with

human rights norms. It urged Sri Lanka to: (a) strengthen and ensure the inde-
pendence of its human rights institutions in accordance with the Principles relating
to the Status of National Institutions for the Promotion and Protection of Human
Rights (‘Paris Principle’);63 and (b) implement the recommendations made by Philip
Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary
executions and take steps to verifiably disarm all paramilitary groups. 64 Canada
echoed these concerns,65 while Portugal highlighted the widespread practice of
torture and extrajudicial killings.66 Belgium condemned the recruitment of child
soldiers by Tamil Makkal Viduthalai Pulikal (‘TMVP’, also known as ‘the Karuna
Group’), which remains closely tied to the Sri Lankan government.67 The Holy See
requested Sri Lanka to share the findings of the Commission of Inquiry that the
President set up to stop the persistent patterns of enforced disappearances and the
measures put into place to address this problem.68
On the other hand, China expressed its satisfaction with Sri Lanka’s establish-
ment of a National Human Rights Commission and an inter-ministerial committee
on human rights, as well as Sri Lanka’s active cooperation with other human rights
mechanisms.69 The Philippines appreciated that ‘Sri Lanka improved its ranking
in gender equality, global competitiveness and other indexes’ and commended the
fact that Sri Lanka was ranked first in terms of women’s health and survival, which
in its view indicated Sri Lanka’s consistent progress in the political, cultural, social
and economic spheres.70 In the end, the 86 recommendations formulated during
the interactive dialogue enjoyed the support of Sri Lanka,71 including the recom-
62 Report of the Working Group on the Universal Periodic Review: Sri Lanka, UN Doc.
A/HRC/8/46 (2008), p. 6, para. 19.
63 GA Res. 48/134 (1993).
64 Report of the Working Group on the Universal Periodic Review: Sri Lanka, op. cit. (note 62),
p. 15, para. 72.
65 Ibid, p. 6, para. 21.
66 Ibid, p. 7, para. 28.
67 Ibid, p. 7, para. 27.
68 Ibid, p. 9, para. 36.
69 Ibid, p. 9, para. 37.
70 Ibid, p. 10, para. 44.
71 Ibid, p. 17, para. 82.
mendations proposed by Portugal and the United Kingdom.72 However, Sri Lanka
refuted the allegation implicitly made in the Holy See’s recommendation.73
A year later after UPR considered Sri Lanka, the outbreak of violence in
northern Sri Lanka caused tremendous suffering to many people and engendered
a humanitarian emergency, as Sri Lankan government forces launched their final
assault on territory held by the Tamil Tigers (‘LTTE’). The background leading
up to the convening of the Council’s eleventh special session had already shown
signs of confrontation between the developing states and western states. The driving
force behind the move to convene a special session was the EU.74 The EU thought
that it was crucial for the legitimacy of the Council to be able to respond to urgent
human rights violations in any part of the world. Given the seriousness of the
situation in Sri Lanka, including the alleged violations of international humani-
tarian and human rights law, the EU insisted that the Council should give priority
to this issue. On the other hand, the developing states felt that the convening of a
special session was unwarranted, suggesting that it would have been better to have
simply helped Sri Lanka in its reconstruction and rehabilitation efforts.
In a letter of 19 May 2009 to the President of the Council, Germany finally
requested the convening of a special session of the Council to address the human
rights situation in Sri Lanka.75 In the resulting eleventh special session of the
Council, many delegations expressed sharply divided views on the approach to
be taken to the situation in Sri Lanka. At the third meeting of 27 May 2009, Sri
Lanka introduced a draft resolution supported by many states.76 Germany
responded by submitting amendments to the draft resolution.77 However, the
72 Report of the Working Group on the Universal Periodic Review: Sri Lanka, UN Doc.
A/HRC/8/46/Add.1 (2008), p. 2, paras 1, 4, 19.
73 Ibid, p. 3, para. 12.
74 The request was supported by 17 member states of the Council: Argentina, Bosnia and
Herzegovina, Canada, Chile, France, Germany, Italy, Mauritius, Mexico, the Netherlands,
the Republic of Korea, Slovakia, Slovenia, Switzerland, Ukraine, the United Kingdom and
Uruguay. In addition to the above-mentioned member states, the request was also supported
by the following observer states of the Council: Austria, Belgium, Bulgaria, Cyprus, the
Czech Republic, Denmark, Estonia, Finland, Greece, Hungary, Ireland, Latvia, Lithuania,
Luxembourg, Malta, Poland, Portugal, Romania, Spain and Sweden. See Report of the Human
Rights Council on Its Eleventh Special Session, UN Doc. A/HRC/S-11/2 (2009), p. 6, paras 2–4.
75 Pursuant to para. 122 of the Annex to Human Rights Council Resolution 5/1, the special session
should be held not earlier than two working days and not later than five working days after the
formal receipt of the request.
76 This draft resolution was co-sponsored by Bahrain, Bolivia (Plurinational State of), China, Cuba,
Egypt, India, Indonesia, Malaysia, Nicaragua, Pakistan, the Philippines and Saudi Arabia.
Subsequently, Algeria, Bangladesh, Belarus, Bhutan, Brazil, Cambodia, Côte d’Ivoire, the
Democratic People’s Republic of Korea, the Islamic Republic of Iran, the Lao People’s
Democratic Republic, Lebanon, Maldives, Myanmar, Nepal, Oman, Qatar, the Russian
Federation, Singapore, the Sudan, the Syrian Arab Republic, Thailand, the United Arab
Emirates, Uruguay, Venezuela (Bolivarian Republic of) and Vietnam joined the sponsors. Report
of the Human Rights Council on Its Eleventh Special Session, op. cit. (note 74), p. 9, para. 24.
77 Germany submitted this amendment on behalf of EU member states that are members of the
Council. Bosnia and Herzegovina, Canada, Mauritius, Switzerland and Ukraine joined the
sponsors. Ibid, p. 9, para. 25.
German amendments were rejected by the passage of Cuba’s ‘no-action’ motion,78
which closed the debate. Many developing countries perceived the EU proposal
as foreign interference in domestic affairs of Sri Lanka. After adopting Cuba’s ‘non-
action’ motion, the Council had only one draft resolution to be voted which accused
only LTTE in favour of the Sri Lankan government. In the end, the Council
adopted the resolution entitled ‘Assistance to Sri Lanka in the promotion and
protection of human rights’ by 29 votes in favour to 12 against, with 6 abstentions.79
Asia-Pacific member states, except Japan and Korea who abstained from voting,
approved it. There is a strong suggestion that the resolution took the side of the Sri
Lankan government, which is clearly reflected in the preamble of the resolution:
The Human Rights Council,

Reaffirming the purposes and principles of the United Nations as contained
in Articles 1 and 2 of the Charter, including the principle of non-interference
in matters that are essentially within the domestic jurisdiction of states . . .80
This sentence comes as a surprise to many human rights lawyers. This phrase
indicates that the Council deferred to the principle of non-interference in the face
of allegedly serious violations of human rights in a country. It even implies that
those human rights violations were seen by many states as matters falling essentially
within the domestic jurisdiction of Sri Lanka, rather than being matters of inter-
national concern. In addition, although war crimes and crimes against humanity
were allegedly committed during the 2009 conflict, the resolution did not refer to
the need to investigate those crimes. This episode appears to indicate that there is
still the same ‘culture of confrontation and distrust’ in the Human Rights Council
which pervaded the former Commission on Human Rights. The fact that many
Asia-Pacific countries favoured the principle of non-interference in internal affairs
also suggests their reluctance to address human rights concerns in a strong manner
that goes beyond the level acceptable to their political world-view.
Conclusion
Of the major regions of the world, the Asia-Pacific is the only one without a regional
human rights monitoring body. In many cases, human rights are more effectively
78 In accordance with rule 117 of the rules of procedure of the General Assembly. The motion was
carried by 22 votes in favour, 17 against, with 7 abstentions, and the President of the Council
declared the debate on these amendments closed. Ibid, p. 9, para. 29.
79 The outcome of the vote is as follows: states voting in favour are Angola, Azerbaijan, Bahrain,
Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, China, Cuba, Djibouti, Egypt, Ghana,
India, Indonesia, Jordan, Madagascar, Malaysia, Nicaragua, Nigeria, Pakistan, the Philippines,
Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay and Zambia; states
voting against are Bosnia and Herzegovina, Canada, Chile, France, Germany, Italy, Mexico, the
Netherlands, Slovakia, Slovenia, Switzerland and the United Kingdom; and those abstained are
Argentina, Gabon, Japan, Mauritius, the Republic of Korea, and Ukraine. Report of the Human
Rights Council on Its Eleventh Special Session, op. cit. (note 74), pp. 5–6.
80 Ibid.
protected by regional human rights monitoring bodies than by universal bodies,
whose member states have more in common with the human rights problems they
face, and can more easily establish common ground and mutual understanding in
protecting human rights. In the case of universal bodies, by contrast, it is not so
easy, because UN member states range from mature democracies to authoritarian
states with many different views and perspectives. The Asia-Pacific region is
troubled by the very same problem as the universal bodies. It would therefore be
difficult to establish a regional human rights monitoring body in the Asia-Pacific
unless the hurdles to establishing common ground and mutual understanding are
overcome.
It is often observed that the Asia-Pacific countries lack the sense of unity
necessary to establish a regional human rights monitoring mechanism. In contrast,
relative cultural or religious homogeneity has arguably led to a comparatively high
level of unity among European states. However, the practice of the Council’s UPR,
examined in this chapter, demonstrates that a lack of regional unity is not
necessarily an obstacle to such a move. One might see the UPR as a weak and
ineffective human rights monitoring mechanism to address human rights violations
in each country, but it is equally arguable that human rights should be protected
through the solidarity of all people and their united front can form the centre
of this new solidarity. The question is how the solidarity of people can be fostered
and strengthened in the Asia-Pacific region. The first steps may be, as discussed
elsewhere in this book, to strengthen networks among national human rights
institutions and to build a united front among civil society groups, by which
particular rights issues in the region – such as the migrant workers or women’s
rights – may be discussed and promoted.
4 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
Sarah McCosker 1
Introduction
Both the UN human rights treaty bodies and UN Charter mechanisms face
ongoing, well-known challenges, including significant backlogs, duplication,
politicization, inconsistency in quality and efficiency, and the perception held by
some that the system has little real impact on the most egregious human rights
violators.2 A number of interesting innovations in both the treaty bodies and
Charter mechanisms have been developed to address these challenges, which
demonstrate the adaptive capacity of the UN human rights system – but which also
have brought fresh challenges. The most striking development in the Charter
system has been the advent of the Human Rights Council’s Universal Periodic
Review Mechanism (‘UPR’), discussed elsewhere in this book.3 However, there
have also been significant developments in the treaty body system, particularly in
the recent Optional Protocol to the Convention Against Torture (‘OPCAT’)4 and
1 The author works in the Office of International Law in the Australian Commonwealth Attorney-
General’s Department. The views expressed in this chapter are the author’s own and do not
represent the views of the Australian Government. The author is grateful to Lorraine Kershaw
and Frederick Miller of the Pacific Islands Forum Secretariat, and Elena Down, AusAID, for
providing information on particular relevant materials.
2 See P. Alston, ‘Effective Functioning of Bodies Established Pursuant to United Nations Human
Rights Instruments: Final Report on Enhancing the Long-Term Effectiveness of the United
Nations Human Rights Treaty System’, Note by the Secretary-General, Commission on Human
Rights, UN Doc. E/CN.4/1997/74 (1997), in particular paras 7, 9–12, 37–40, 48–59, 80–4, 109,
112–15, 117, 120–2; L. Arbour, The OHCHR Plan of Action: Protection and Empowerment, Geneva,
2005, paras 4, 96, 97, 99; P. Alston and J. Crawford (eds), The Future of UN Human Rights Treaty
Monitoring, New York: Cambridge University Press, 2000; Office of the High Commissioner for
Human Rights (OHCHR), ‘Enhancing the Human Rights Treaty Body System: The Treaty
Bodies’ Response to the Secretary-General’s Agenda for Further Change’, available at: <http://www2.
ohchr.org/english/bodies/treaty/reform.htm> (accessed 14 June 2010).
3 See Chapter 3 of this book.
4 2375 UNTS 237 (entered into force 22 June 2006). As of 31 October 2010, the OPCAT has 57
parties and 67 signatories. Pursuant to art. 27, the OPCAT can be ratified by any party to the
Innovations in instituion-building and fresh challenges 65
the Convention on the Rights of Persons with Disabilities (‘CRPD’).5 This chapter
focuses on these two treaties.
Both treaties contain innovative ‘institution-building’ features, including require-
ments for increased domestic institution-building, sophisticated forms of monitoring
implementation of human rights obligations, and increased interaction between
domestic and international monitoring mechanisms, governments and civil society.
While these innovations hold promise for strengthening compliance with treaty
obligations, they also may present particular challenges for states in the Asia-Pacific
region, by slowing down or hindering the ability of states to become party, and/or
to implement their treaty obligations effectively upon becoming party. The uptake
of and approaches to the CRPD and OPCAT by states in the Asia-Pacific region
therefore illustrate some of the deeper challenges of strengthening human rights
institution-building, implementation, monitoring and awareness in the region. The
chapter begins by outlining some of the innovative institution-building features of
the OPCAT and the CRPD, before discussing some particular challenges these
features may pose for states in the region.
Institution-building in human rights treaties: the old

and the new
In most of the core human rights treaties, the traditional form of monitoring states
parties’ compliance with treaty obligations is the cyclical process of periodic report-
ing to an international treaty body, including presenting a written report and
appearing before the committee every three to four years for a ‘constructive dia-
logue’, after which the committee will issue non-binding concluding observations
and recommendations, designed to highlight areas of concern and guide the state
party in its implementation work until the next periodic report.6 This reporting
mechanism is complemented, in the case of some of the core human rights treaties,
by communications mechanisms7 – an additional means of monitoring complaints
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), 1465
UNTS 85 (entered into force 26 June 1987). As of 31 October 2010, the CAT has 147 parties
and 77 signatories.
5 GA Res. 61/106 (2007) (entered into force 3 May 2008). As of 31 October 2010, it has 95 states
parties, and 147 signatories. The CRPD Optional Protocol (creating a communications
mechanism) (CRPD OP) was also adopted by GA Res. 61/106 (2007) annex II, and entered into
force on 3 May 2008. As of 31 October 2010, it has 58 states parties and 90 signatories.
6 ICERD, art. 9; ICCPR, art. 40; ICESCR, arts 16, 17; CEDAW, art. 18; CAT, art. 19; CRC, art.
44; ICRMW, arts 73, 74; CRPD, arts 35, 36; International Convention for the Protection of All Persons
from Enforced Disappearances, GA Res. 61/177 (2007) (entered into force 23 December 2010)
art. 29.
7 ICERD art. 14; First Optional Protocol to the ICCPR, 999 UNTS 302 (entered into force 23 March
1976); CEDAW Optional Protocol, 2131 UNTS 83 (entered into force 22 December 2000); CAT
art. 22; CRPD OP; ICESCR Optional Protocol, GA Res, 63/117 (2009) (not yet in force; as of 31
October 2010 it has 35 signatories and three state parties) arts 1–9; ICRMW, art. 77 (not yet
operative; the communications mechanism will become operative when 10 states parties have
made the necessary declaration under article 77; as of 18 March 2011 only two states have done
so); Enforced Disappearances Convention, art. 31.
of alleged breaches of the treaties. Two other mechanisms, though rarely used, are
the inter-state complaint mechanism and inquiry procedure.8
Overall, the monitoring process is designed to improve compliance with treaty
obligations,9 as ‘[m]onitoring mechanisms foster accountability and, over the long
term, strengthen the capacity of parties to treaties to fulfil their commitments and
obligations’.10 The four classic mechanisms largely seek to improve compliance by
identifying breaches or issues of concern after they have developed. The formal
‘institution-building’ features of these mechanisms essentially involved the creation
of international treaty bodies, sitting in Geneva or New York, overseeing from afar
states parties’ implementation of treaty obligations. They typically rely upon written
and oral information presented by states parties, as well as on information available

publicly, or presented by NGOs and national human rights institutions (‘NHRIs’)
in the form of ‘Shadow Reports’.
As mentioned earlier, these traditional mechanisms have significant short-
comings, which are not discussed in depth here. States across the Asia-Pacific region
have a low rate of acceptance of communication mechanisms,11 and (with the
exception of developed states such as Australia, Japan and New Zealand) a
relatively poor record of complying on time with reporting obligations. These
traditional mechanisms are present in the CAT, and in the CRPD and its Optional
Protocol, but both treaties also contain important innovations in institution-
building. They develop new, sophisticated forms of monitoring compliance and
promoting implementation that go beyond simple periodic reporting and com-
plaints mechanisms. Neither treaty creates new substantive norms or rights.12
Instead, they strengthen mechanisms for implementation and monitoring of
compliance with the substantive obligations already contained in the CAT and
codified in the CRPD, in particular by establishing a ‘two-tier monitoring system’
comprised of an international treaty body and a national body or bodies.13 These
8 CEDAW Optional Protocol, arts 8–10; CAT art. 20; Enforced Disappearances Convention, art. 33; and
ICESCR Optional Protocol, arts 11, 12 (though this treaty is not yet in force).
9 See P. Szasz, ‘Introduction’, in P. Szasz (ed.), Administrative and Expert Monitoring of International
Treaties, New York: Transnational Publishers, 1999, p. 1 at p. 15.
10 OHCHR, ‘Thematic Study by the Office of the United Nations High Commissioner for Human
Rights on the Structure and Role of National Mechanisms for the Implementation and Monitoring
of the Convention on the Rights of Persons with Disabilities’, UN Doc. A/HRC/13/29 (2009),
para. 11.
11 For example, only two of the 23 regional states parties to ICERD have accepted the ICERD
communications mechanism; eight of 22 regional states parties to the ICCPR have accepted the
First Optional Protocol mechanism; three of 15 regional states parties to CAT have accepted its
mechanism; 13 of the 35 regional states parties to CEDAW have accepted its mechanism; five of
the 14 regional states parties to the CRPD have accepted its Optional Protocol (as of 31 October
2010).
12 However in relation to the CRPD, see below text accompanying note 44.
13 University of Bristol OPCAT Research Team, The Optional Protocol to the UN Torture
Convention and the UN Convention on the Rights of People with Disabilities: Some Common
Issues, Bristol: University of Bristol, 2009, p. 1, available at: <http://www.bris.ac.uk/law/
research/centres-themes/opcat/docs.html> (accessed 21 March 2010) (‘Bristol Research Team’).
obligations to create domestic monitoring bodies and mechanisms will be outlined
briefly below.
Institution-building features of the OPCAT
Overview
The OPCAT has been described as a ‘ground-breaking’ treaty,14 establishing a
‘twin pillar’ system of preventive monitoring,15 comprising regular visits to places
of detention by independent international and national bodies, to prevent torture
and other cruel, inhuman or degrading treatment or punishment.16 First, the

OPCAT established a Subcommittee of the Committee Against Torture – the
Subcommittee on Prevention of Torture (‘the Subcommittee’), comprising 25
independent expert members who must have the nationality of a state party.17
Secondly, the OPCAT requires states parties to designate or establish one or more
‘national preventive mechanisms’ (‘NPMs’).
Each state party must allow the Subcommittee and the NPM to visit ‘places of
detention’ – ‘any place under [the state’s] jurisdiction and control where persons
are or may be deprived of their liberty, either by virtue of an order given by a public
authority or at its instigation or with its consent or acquiescence’.18 The scope of
‘places of detention’ is therefore very broad.19
Subcommittee obligations 20
The Subcommittee has a mandate to: conduct regular visits to places of detention,
make confidential recommendations to states parties, advise and assist states parties
and NPMs, including with the development of the NPMs, and cooperate with NPMs
14 Association for the Prevention of Torture (APT) at: <http://www.apt.ch/> (accessed 28 June
2009).
15 M. Evans and C. Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol
to the UN Convention Against Torture’, Human Rights Law Review 4, 2004, p. 19 at p. 20.
16 OPCAT, art. 1. For detailed discussion of OPCAT, see generally M. Nowak and E. McArthur,
The United Nations Convention Against Torture: A Commentary, Oxford: Oxford University Press, 2008,
pp. 882–1193; APT, The Optional Protocol to the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment: A Manual For Prevention, Geneva: APT and Inter-
American Institute for Human Rights, 2004; APT, The Guide on the Establishment and Designation of
National Preventive Mechanisms, Geneva: APT, 2006.
17 OPCAT, art. 6(a). Membership increased from 10 to 25 in October 2010, following the 50th
ratification: art. 5(1).
18 OPCAT art. 4(1). ‘Deprivation of liberty’ is defined in art. 4(2).
19 It has been interpreted to include pre-trial detention centres and police-lockups; military and
intelligence detention centres; immigration centres, transit zones and international airports;
juvenile and administrative detention centres; psychiatric hospitals; pre-expulsion and special
detention centres for asylum seekers; foster homes; and homes for elderly people whose personal
liberty is restricted: Nowak and McArthur, op. cit. (note 16), p. 926.
20 See generally OPCAT Pts II and III, arts 5–16.
and other international, regional and national bodies for the prevention of torture.21
States parties must cooperate with the Subcommittee,22 give it unrestricted access
to all places of detention23 and relevant information about detainees,24 examine its
recommendations, and discuss possible implementation measures.25 The Subcom-
mittee estimates it will visit a state party around once every 12 years.26
So far, Subcommittee visits have focused on a small number of places of deten-
tion, with visits lasting approximately one week per country. As of October 2010,
the Subcommittee has made nine visits, including two to the region – the Maldives
in 2007 and Cambodia in 2009. The Subcommittee must give a party notice of its
visit to the country, but does not need to give notice of visits to particular facilities.
In practice, however, the requirement for cooperation between parties and the
Subcommittee27 will mean that states have some time to prepare for the
Subcommittee’s visits – so they are unlikely to be real ‘spot-checks’. This, together
with the infrequency and short duration of the visits, raises the question of whether
they can really bring meaningful scrutiny of detention. Unfortunately, at present
the Subcommittee’s ‘ability . . . to carry out its mandate effectively is severely
restricted by virtue of the limited budget provided by the UN for its visits and the
total absence of budget for its mandate to work directly with NPMs’.28 In practice
therefore, the most significant work in implementing the OPCAT is to be done by
NPMs, expected to visit places of detention much more frequently.
NPM obligations 29
The NPM obligations are the more innovative in terms of institution-building.
States parties must designate or establish ‘one or several visiting bodies for the pre-
vention of torture and other cruel, inhuman or degrading treatment or punish-
ment’.30 The NPM is empowered to examine regularly the treatment of persons in
detention, and make recommendations to states parties. States parties must, inter
alia, guarantee the NPM’s functional independence and ensure its powers are
established by law; give due consideration to the Paris Principles;31 ensure its
21 OPCAT art. 11.

22 OPCAT arts 2(4), 11, 12.
23 OPCAT arts 12(a), 14(1)(c). Article 14(2) permits States parties to object to a visit to a particular
place of detention only ‘on urgent or compelling grounds of national defence, public safety, natural
disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of
such a visit’.
24 OPCAT arts 14(1)(a), 14(1)(b).
25 OPCAT art. 12(d).
26 Subcommittee, Second Annual Report, UN Doc. CAT/C/42/2 (2009), para. 70.
27 OPCAT, art. 13(2).
28 S. Casale, ‘A System of Preventive Oversight’, Essex Human Rights Review 6, 2009, p. 6 at p. 13.
29 See generally OPCAT Pt IV, arts 17–26.
30 OPCAT art. 3.
31 Ibid, art. 18. Principles relating to the Status and Functioning of National Institutions for the
Promotion and Protection of Human Rights; for details, see Chapter 10 of this book.
members have the required capabilities; and give it necessary resources.32 States
parties must grant the NPM access to all places of detention, the persons in them,
and information regarding their treatment; examine NPM reports and recom-
mendations; enter into dialogue on their implementation; and publish the NPM’s
annual report.33
Together the Subcommittee and NPMs form a complementary ‘protective
network of mechanisms . . . interlocking in such a way as to fill the gaps in the
safeguards for people deprived of liberty and so reduce to an absolute minimum the
risks of ill-treatment’.34 In this way, the OPCAT ‘establishes a novel, triangular
relationship between states parties, and international and national preventive bodies
. . . [which] recognizes NPMs as actors in the implementation of the treaty’.35
Uptake in the Asia-Pacific region

In the four years since the OPCAT entered into force in June 2006, the inter-
national uptake of the treaty has been slow and cautious. In total, there are only
57 parties and 68 signatories,36 which represents less than one-third of UN member-
ship. From the Asia-Pacific region, there are only three parties (Cambodia,
Maldives and New Zealand), and two signatories (Australia and Timor-Leste).
There are no Pacific parties—reflecting the fact that no Pacific states are parties to
the CAT (only Nauru is a signatory). Thus far, the OPCAT ‘has made limited
inroads in the Asia-Pacific region’, and ‘it is likely that progress in the region as a
whole will continue to be piecemeal and rather slow’.37
The very low OPCAT ratification rate can be contrasted to 31 parties and ten
additional signatories from Europe (and what the APT describes as central Asia),
13 parties and one additional signatory from the Americas, and 10 parties and eight
additional signatories from the African region.38 Interestingly, there appears to
be a correlation between regional ratification rates and the extent to which the
respective regional human rights systems are more entrenched – namely the
European human rights system as the longest and most well-established, followed
by the Inter-American and African systems. The OPCAT ratification rates may
reflect a correlation between the extent to which the prohibition on torture is
entrenched and the degree of receptivity to new forms of monitoring and imple-
menting the norm.
32 OPCAT, art. 19.

33 Ibid, arts 19, 22, 23.
34 Casale, op. cit. (note 28), p. 6.
35 A. Olivier and M. Narvaez, ‘OPCAT Challenges and the Way Forwards: The Ratification and
Implementation of the Optional Protocol to the UN Convention Against Torture’, Essex Human
Rights Review 6, 2009, p. 39 at p. 41.
36 UN Treaty Collection, available at: <http://treaties.un.org> (current as of 22 March 2010).
37 R. Harding and N. Morgan, ‘OPCAT in the Asia-Pacific and Australasia’, Essex Human Rights
Review 6, 2010, p. 99 at p. 99.
38 UN Treaty Collection, op. cit. (note 36).
The higher European ratification rate is also partly explicable by the fact that
for 20 years they have been subject to the regime under the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punish-
ment, and therefore have greater experience and familiarity with, and acceptance
of, external scrutiny of detention.39 The significant uptake of the OPCAT by South
American states may partly be attributed to ‘the recent history of dictatorship and
torture that has ultimately provoked a strong human rights response among civil
society and the elected governments’ – a factor possibly also influencing African
states.40 In contrast, ‘[t]here is no unifying Asia-Pacific characteristic that has driven
the [Asia-Pacific] region towards ratifying the OPCAT’.41
It is difficult to generalize about the reasons why particular regions have different
rates of uptake. For example, the rationale suggested regarding South American
states would also seem relevant to various Asian states that have also suffered
histories of dictatorship and human rights abuses. Several factors may explain the
relatively low ratification rate in the Asia-Pacific, including the novelty of the
procedures and their expense and resource intensity. Another factor may be ‘treaty
fatigue’ – a diminishing of enthusiasm, momentum and political will for the uptake
of new human rights treaties in the face of other priorities, including imple-
mentation of other treaties regarded as more significant by the state concerned.
Also, like all human rights treaties, the uptake of the OPCAT (and also the CRPD)
is likely to depend partially on deeper cultural, political, economic and develop-
mental factors, all of which influence a government’s attitude.42 Some further
discussion of particular factors will be provided further below, after first outlining
the key features of the CRPD.
Institution-building features of the CRPD
Overview
The CRPD has only been in force since May 2008, and currently has 99 parties
and 147 signatories – a much higher acceptance rate than for the OPCAT. The
CRPD is the first human rights treaty that comprehensively details all human rights
of persons with disabilities, and clarifies states’ obligations to respect and implement
these rights;43 it also may progressively develop the law in some areas.44
39 Harding and Morgan, op. cit. (note 37), pp. 123–4. The Committee was established under European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ETS No. 126
(entered into force 1 February 1989); ratified by the 47 states of the Council of Europe.
40 Harding and Morgan, op. cit. (note 37), p. 123.
41 Ibid, p. 124.
42 See, eg, P. Close and D. Askew, Asia Pacific and Human Rights: A Global Political Economy Perspective,
Aldershot: Ashgate, 2004, 11, 31.
43 OHCHR, op. cit. (note 10), para. 6.
44 R. Kayess and P. French, ‘Out of Darkness into Light? Introducing the Convention on the Rights
of Persons with Disabilities’, Human Rights Law Review 8, 2008, p. 1 at pp. 32–3.
Like the OPCAT, the CRPD has a two-tier system of monitoring. The
international level comprises three traditional forms of monitoring: periodic
reporting, and, via the CRPD Optional Protocol, a communication mechanism,
and inquiry procedure. The domestic level comprises three main elements, which,
as with the OPCAT, are the CRPD’s most groundbreaking aspects.45 First, article
33(1) requires states parties to ‘designate one or more focal points within govern-
ment’ for ‘matters relating to the implementation of the Convention’, ‘in accor-
dance with their system of organization’. Secondly, article 33(1) requires states
parties to ‘give due consideration to the establishment or designation of a co-
ordination mechanism within government to facilitate related action in different
sectors and at different levels’. This is only an obligation to consider, not an

obligation to actually establish/designate. Thirdly, article 33(2) requires states
parties to ‘maintain, strengthen, designate or establish’ a ‘framework, including
one or more independent mechanisms, as appropriate’, to ‘promote, protect and
monitor implementation’ of the CRPD.
The OHCHR suggests that the implementation and monitoring functions are
‘conceptually separated’ and should not be assigned to one single entity.46 That is,
implementation is the responsibility of government (via the focal point and the non-
obligatory coordination mechanism), while the protection, promotion and monitor-
ing functions should be undertaken by independent national institutions, via the
framework. The concept of independence is central to the framework;47 similarly
to OPCAT,48 the CRPD requires parties to ‘take into account’ the Paris Principles.49
Critically, in all aspects of the CRPD – implementation, protection, promotion
and monitoring – states parties must ‘closely consult with and actively involve’
persons with disabilities and their representative organizations.50
Uptake in the Asia-Pacific region

With two-thirds of the world population, the Asia-Pacific region also has around
two-thirds of the world’s people with a disability (400 million), with the number
increasing due to multiple factors including population aging.51 People with
disabilities in Asia face a range of rights violations related to their disabilities.52 Yet,
45 For detailed discussion, see UN, From Exclusion to Equality: Handbook for Parliamentarians on
the Convention on the Rights of Persons with Disabilities and Its Optional Protocol, 2007, chapters
3 and 7, available at: <http://www.un.org/disabilities/default.asp?id=212> (accessed 25 April
2010).
46 OHCHR, op. cit. (note 10), paras 16, 76.
47 Ibid, para. 18.
48 OPCAT art. 2.
49 CRPD art. 33(2).
50 Ibid, art. 4(3); see also arts 33(2), 34(3), 35(4).
51 UN Economic and Social Commission for Asia and the Pacific (‘UNESCAP’), ‘Mission Statement’,
available at: <http://www.unescap.org/esid/psis/disability/> (accessed 13 February 2010).
52 APF, ‘Issues: Disability’, available at: <http://www.asiapacificforum.net/issues/disability>
(accessed 15 February 2010).
the CRPD has only 14 parties from the region53 and 11 additional signatories.54
This contrasts with 28 parties from Europe, 21 from the Americas, and 27 from
Africa. The Optional Protocol has 61 parties and 91 signatories, with only five
regional parties55 and four additional regional signatories.56 This contrasts to 21
parties from Europe, 17 from the Americas and 14 from Africa.
The current uptake of the CRPD across the region is considerably higher than
that of the OPCAT, which reflects both the higher global ratification rate of the
CRPD, as well as the strong advocacy on disability issues from parts of the Asia-
Pacific region in recent years. Significant work on promoting the rights of persons
with disabilities in the region has been coordinated by the UNESCAP, which has
been working over the last two decades to promote multi-stakeholder networking
on disability issues with governments, NGOs and human rights experts.57 The Asia-
Pacific region was the only region to promote a specific disability-related initiative
at the end of the first UN Decade of Disabled Persons in 1992, with states recog-
nizing the Asian and Pacific Decade of Disabled Persons (1993–2002) to promote
disability-sensitive policy development and implementation – now extended to a
Second Decade (2003–12).58
In the Pacific, considerable work on disability issues is being coordinated by the
Pacific Islands Forum (‘PIF’) Secretariat, which has been working collaboratively
with member states encouraging them to sign and ratify the CRPD, drawing on a
detailed Review of Disability Policy and Legislation in the Pacific.59 In October
2009 the PIF endorsed a Pacific Regional Strategy on Disability for 2010–15,
following consultations with representative organizations and government focal
points.60 The Strategy explicitly aims to ‘strengthen commitment of all stakeholders
towards implementation of the [CRPD]’.61 The PIF Secretariat has been working
closely with UNESCAP and the Pacific Disability Forum (‘PDF’) in assisting
member countries with the development of their disability policies.
So far, few states parties have formally designated focal points. For some states,
this is because work is still ongoing, while for others, it may be because government
53 Australia, Bangladesh, China, Cook Islands, India, Laos, Malaysia, the Maldives, New Zealand,
Nepal, the Philippines, Korea, Thailand and Vanuatu as at 31 October 2010.
54 Bhutan, Brunei Darussalam, Cambodia, Fiji, Indonesia, Japan, Pakistan, Solomon Islands, Sri
Lanka, Tonga and Vietnam.
55 Australia, Bangladesh, Cook Islands, Mongolia and Nepal.
56 Cambodia, Fiji and Solomon Islands.
57 UNESCAP, op. cit. (note 51); A. Akiyama, ‘Convergence Between the International Convention
on the Rights of Persons with Disabilities and the Biwako Millennium Framework for Action’,
Asia Pacific Disability Rehabilitation Journal 18, 2007, p. 20 at p. 21.
58 UNESCAP Res. 58/4 (22 May 2002).
59 G. McKinstry, P. Price and S. Macanawai, PIF Secretariat, ‘Review of Disability Policy and
Legislation in the Pacific’, available at: <http://www.forumsec.org.fj/pages.cfm/documents/
disability-1/> (‘PIF Review’) (accessed 25 April 2010).
60 Forum Disability Ministers’ Meeting, Rarotonga, Cook Islands, 21–23 October 2009, available at:
<http://www.forumsec.org.fj/resources/uploads/attachments/documents/Pacific%20Regional
%20Strategy%20on%20Disability.pdf> (accessed 25 April 2010).
61 Ibid, p. 4, para. 1.
focal points already exist.62 For example, in September 2009, Australia designated
the Federal Attorney-General’s Department and the Department of Families,
Housing, Community Services and Indigenous Affairs (with previous experience
on disability issues) as joint focal points.63 In New Zealand, the Office for Disability
Issues in the Ministry of Social Development has been a focal point on disabilities
since 2002 and will continue to serve as the CRPD focal point.64
Notable features and potential challenges for

Asia-Pacific states
While the OPCAT and CRPD implementation and monitoring mechanisms are
different, they have some important similarities. Both employ a two-tier system of
international and national independent bodies, and for both, their most unique
aspect is the layer of national institutions that are to play a role in implementation,
and the fact that this is provided for directly in the treaty text, instead of being
developed as a result of the recommendation of treaty bodies.65 These features offer
significant promise for strengthening human rights implementation and moni-
toring, and set useful precedents for possible development of future mechanisms
in other treaties.
However, they also present significant challenges, particularly at this early stage.
Some of these challenges are likely to be common to many states globally – for
example, questions of capacity and resources will be important for all developing
states. However, some of the challenges may be particularly acute for states in the
Asia-Pacific region.
The lack of regional institutions and disinclination towards

formal monitoring
One overarching factor that may contribute to the low regional uptake of the
OPCAT and the CRPD is the traditional disinclination of Asia-Pacific states
towards creating new human rights institutions and addressing human rights issues
via formal institutional frameworks.66 This is most evident in the absence of any
regional human rights regime comparable to that in other regions. Instead, the
62 OHCHR, op. cit. (note 10), paras 22, 31.

63 Australia’s Initial Report under the CRPD, para. 212, available at: <http://www.ag.gov.au/
www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_Humanrights#latest> (accessed
22 March 2011).
64 OHCHR, ‘New Zealand Response to OHCHR Information Request Pursuant to A/HRC/10/7
Concerning the Convention on the Rights of Persons with Disabilities’, paras 1–4, 19, available
at: <www2.ohchr.org/english/issues/disability/docs/NewZealand.doc> (accessed 4 July 2010).
65 Bristol Research Team, op. cit. (note 13), 1.
66 This discussion draws partially on the author’s previous work: S. McCosker, ‘Human Rights
in the Asia-Pacific Region: Assessing the Prospects for a Regional Human Rights Framework’,
Pandora’s Box: Journal of the Women and the Law Association of the University of Queensland, 2003,
p. 99.
picture is more complex, characterized by multiple groups, networks and institu-
tions facilitating human rights work, some with overlapping membership, and some
stronger and more effective than others.
Explanations for the region’s resistance to human rights mechanisms vary and
remain contested,67 including claims about an ‘Asian way’, an emphasis on com-
munities over individuals, and responsibilities over rights,68 and a preference for
‘softer’ dispute resolution (through consensus, consultation and communitarian-
ism).69 Others have identified a traditional proclivity towards bilateralism as
opposed to regional multilateral approaches.70 Notably, the Terms of Reference
of the ASEAN Inter-Governmental Commission on Human Rights reflect the
tensions between some of these preferences. Although these debates are outside
the scope of this chapter, the key point for present purposes is that the region is
generally known for its relative lack of human rights institutions. The considerable
plurality and heterogeneity of perspectives and cultures in the Asia-Pacific region
makes it difficult to make generalizations about overall approaches to human rights,
or the reasons for uptake of particular treaties.71 As regards the OPCAT, for
instance, ‘the reasons for the slow roll out of the OPCAT in the Asia-Pacific are
complex, sensitive and jurisdiction-specific’.72 As noted earlier, although many Asia-
Pacific states are parties to the core human rights treaties, many others are not
party, while those that are do not all participate fully in periodic reporting.
This general reluctance to open up domestic activities to external scrutiny is
replicated at the domestic level, with many Asia-Pacific states often reluctant to
establish binding domestic oversight mechanisms, and resistant to human rights
activism. Also, the region still has a very uneven record in creating strong,
independent NHRIs: some (mostly developed states) have well-established NHRIs,
while others (such as the Maldives73) are far from achieving this goal. Relatively
67 See, eg, Chapter 6 of this book.

68 Y. Ghai, ‘Asian Perspectives on Human Rights’, in James Tang (ed.), Human Rights and International
Relations in the Asia Pacific, London: Pinter, 1995, p. 54 at p. 60.
69 See, eg, Y. Ghai, ‘Human Rights and Governance: the Asia Debate’, Australian Year Book of
International Law 15, 1994, p. 11; G. Triggs, ‘Confucius and Consensus: International Law in the
Asia-Pacific’, Melbourne University Law Review, 1997, p. 650; Official Statement of the Government
of Singapore, Shared Values, 1991.
70 S. Harris, ‘Recent Development: Asian Human Rights – Forming a Regional Covenant’, Asian-
Pacific Law and Policy Journal 1, 2000, p. 1 at p. 20.
71 The Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFDT) of the Australian
Parliament identified ‘geographic and resource constraints; the lack of cohesive regional identity;
limited engagement with human rights concepts; and perceived tensions with culture’ as ‘key
challenges distinct to the region that are often regarded as stumbling blocks when addressing
human rights concerns’: ‘Report of the Human Rights Sub-Committee: Human Rights in the
Asia-Pacific: Challenges and Opportunities’, Commonwealth of Australia, April 2010, para. 2.2
and paras 2.3–2.20.
73 Subcommittee, Report on the Visit of the SPT to the Maldives, UN Doc. CAT/OP/MDV/1
(2009), paras 67–9, available at: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/411/
30/PDF/G0941130.pdf?OpenElement> (accessed 27 June 2010).
few countries in the Asia-Pacific region have independent bodies with functions,
powers and immunities comparable to those required of the NPM – such as powers
to visit places of detention, obtain information about detained persons, carry out
regular inspections of all places of detention and make recommendations to the
authorities about treatment and conditions of persons in detention. It has therefore
been argued that the establishment and/or designation of NPMs needs to be
considered on a case-by-case basis, because ‘different bodies, in different contexts
and jurisdictions, raise different issues and challenges with respect to their ability
to function as an effective NPM’, and that ‘the real deciding factor, in designating
an NPM, should be each state party’s geo-political, legal, social and cultural
specifics’.74
New kinds of institution-building

The two treaties’ domestic monitoring and implementation mechanisms are
without precedent in international human rights law, and represent new, more
sophisticated kinds of institution-building. NPMs, focal points, framework and
national coordination mechanisms are not simply focused on institution-building,
in the more traditional sense of creating new entities (although this is one option
for states parties). Instead, both treaties envisage dynamic processes and coordi-
nated engagement between several interlinked institutions, networks and groups –
in short, a fluid system of inter-institutional interactions, involving multiple state and
non-state stakeholders.
The flexibility of the domestic mechanisms, with no particular organizational
form prescribed by the OPCAT or CRPD, recognizes the complexity and diversity
of government structures and circumstances. The two treaties can be understood
as triggering and strengthening institution-building in several different ways. They
complement and strengthen existing human rights institutions and further extend
the reach of UN bodies into states parties, although this brings risks of potential
duplication of work and a corresponding pressure on limited state resources. They
require domestic development of institutions, focal points, mechanisms and net-
works, and thereby create new parts of government or give existing parts new roles
and functions. They also strengthen inter-institutional links and interactions and
promote capacity-building and development assistance that facilitates the further
development of international and regional institutions and networks.
The ‘institution-building’ effects of the two treaties therefore occur at several
different levels, and in the dialectic exchanges between states, international bodies,
NGOs and civil society. The novelty of these mechanisms creates a basic practical
challenge, which is that there is relatively little precedent and practice for states to
74 E. Steinerte and R. Murray, ‘Same but Different? National Human Rights Commissions and
Ombudsman Institutions as National Preventive Mechanisms under the Optional Protocol to the
UN Convention Against Torture’, pp. 54, 71, available at: <http://projects.essex.ac.uk/ehrr/
V6N1/SteinerteMurray.pdf> (accessed 4 July 2010).
draw upon. Over time, however, as more experience develops with the OPCAT
and CRPD, states and other regional stakeholders will be able to disseminate
examples of best practice and share lessons learned.
Changed focus of oversight: bringing scrutiny closer to home

In imposing binding obligations to create domestic mechanisms, the two treaties
give increased responsibility to domestic rather than international bodies, and thus
intrude more deeply into the governance and organization systems of states parties
than other human rights treaties. By mandating consultation between government
and non-government stakeholders, the two treaties shift the focus towards strength-
ening relationships between domestic constituencies, and necessarily generate
greater transparency and visibility. No longer is it simply a remote, external UN
body sitting every three or four years in Geneva, or a distant Special Rapporteur
occasionally visiting the country, but rather an endogenous, ‘home-grown’ system
created or designated by the state party itself to complement the work of the
international bodies.
On the one hand, this may have some appeal to Asia-Pacific states, as the lack
of detailed prescription enables states to tailor the mechanisms to suit their needs
and preferences. As domestically-created entities, they ‘may have a better under-
standing of the national context (such as in relation to the language, institutional
and legal framework) than an international or regional body’, and ‘their loca-
tion and exclusive national focus enable permanent contacts with the detaining
authorities and, thus, facilitate constructive dialogue and cooperation’.75
On the other hand, the obligation to establish stronger domestic monitoring
mechanisms may be perceived as a threat by certain states in the region because it
generates much more responsibility and pressure to improve systems domestically,
and requires giving power to independent bodies which may be critical of the
government. The objective of the OPCAT, for example, is ‘to establish a system
of regular visits undertaken by independent international and national bodies’.76 States
parties must grant the NPMs, at a minimum, the power to examine regularly the
treatment of persons deprived of their liberty; to make recommendations to the
states parties regarding treatment and conditions of detainees in order to prevent
torture and ill-treatment; and to submit proposals and observations concerning
existing or draft legislation.77 These requirements may pose several challenges for
Asia-Pacific states, many of which do not have well-established, independent
NHRIs.78
While the NPMs that have been designated by states so far are ‘very diverse
entities, ranging from creating new institutions to selecting among existing bodies
75 Olivier and Narvaez, op. cit. (note 35), p. 52; W. Tayler, ‘What is the Added Value of Prevention?’,
Essex Human Rights Review 6, 2009, p. 22 at p. 26.
76 OPCAT, art. 1 (emphasis added).
77 OPCAT, art. 19.
78 As, for example, in Cambodia or the Republic of Korea.
. . . or a combination of the two’,79 it has been observed that in most cases, states
designate as part of their NPM a national human rights commission and/or an
ombudsperson.80 This may be sufficient in states where the commission and/or
ombudspersons are already independent statutory authorities with visiting func-
tions; however ‘[t]he reality is that, in most states, there are few existing institu-
tions that already have visiting experience to choose from and there will often not
be both a suitable ombudsperson and [human rights commission] to choose
between’.81
Even in states with well-established bodies, there may still be the need for
modification or expansion of their functions to accommodate the particular NPM
functions. For example, if a human rights commission has among its functions the
quasi-judicial investigation of individual complaints, those functions must be
separated out from the NPM functions, which must be focused on broader systemic,
preventive, proactive issues.82
The CRPD’s requirements for independence of monitoring institutions are less
elaborate than those of the OPCAT. As already indicated, article 33(2) of the
CRPD requires states parties to ‘maintain, strengthen, designate or establish’ a
‘framework, including one or more independent mechanisms, as appropriate’ (emphasis
added), to ‘promote, protect and monitor implementation’ of the CRPD. Similar
to the OPCAT, the CRPD requires states parties to ‘take into account’ the
Paris Principles. Australia, for example, is still in the process of developing its
framework (under the planned National Disability Strategy), but has indicated
that the Australian Human Rights Commission will form part of the framework.83
The key point here is that both treaties require independent domestic mechanisms
to provide oversight, and that this may be challenging for those regional states
which lack strong human rights bodies with functional independence from
government.
Permanent monitoring and prevention

Both the OPCAT and the CRPD create a system of permanent, continuous
domestic monitoring, in contrast to the more infrequent and reactive monitoring
of periodic reporting and sporadic individual complaints. They require states to
be more proactive and accountable for the implementation of obligations. In
the OPCAT, this is part and parcel of the treaty’s specific focus on prevention. The
Subcommittee and NPMs are not focused on investigation of individual abuses;
instead, they have a systemic, holistic focus – working collaboratively to achieve
overall improvements in treatment of people in places of detention. Similarly, the
CRPD focal points, coordinating mechanisms and national frameworks are
79 Steinerte and Murray, op. cit. (note 74), p. 58 (footnotes omitted).

80 Ibid.
81 Ibid, p. 71.
82 Ibid, p. 72.
83 Australia’s Initial Report under the CRPD, op. cit. (note 63), paras 24, 213–15.
designed to create a domestic system of implementation, monitoring and promotion
of the rights of persons with disabilities. The focus is less on individual responsibility
for human rights abuses, and instead on improving the conditions necessary to
realize the rights of persons with disabilities.
Of course, there are already communications mechanisms available in relation
to both the CAT and the CRPD, which focus on alleged violations of rights of
individuals and groups of individuals. The OPCAT and CRPD’s more systemic
focus is intended to complement these mechanisms. However, given that accep-
tance of communications mechanisms is optional, it is possible a state could become
a party to the OPCAT and CRPD but not the communications mechanisms,
resulting in a risk that individual violations could go unremedied.

Although the OPCAT and CRPD monitoring mechanisms are broadly intended
to prevent individual violations, it is possible that the broad focus on systemic
conditions might, in certain circumstances, contribute to the diffusion of respon-
sibility across government so that particular violations may not be sufficiently
addressed. Accordingly, some states might consider the monitoring mechanisms
not as ‘threatening’ as the communications mechanisms.
On the other hand, for other states, it may be that very dispersal of responsibility
that is regarded as threatening. While the violation of a human rights obligation
that is established by a communications mechanism can, in certain circumstances,
be portrayed as an isolated event committed by particular individuals, the OPCAT
and CRPD monitoring mechanisms focus on shared accountability across govern-
ment; the focus is on identifying aspects that the government as a whole needs
to improve. The communications mechanisms allow a state to be more reactive,
while the OPCAT and CRPD monitoring mechanisms require more continuous
vigilance.84 This continuity of monitoring, brought by both treaties, requires
significant extra work than traditional treaty body mechanisms.
Also, as indicated above, another challenge is the increased attention it draws
to possible breaches or issues of concern. The constant presence of a monitoring
system presents a higher risk to a government’s reputation than the relatively
temporary international exposure brought by an appearance before a treaty body
only every four years. For example, the work of NPMs brings much greater visibility
of places of detention, in both international and domestic arenas. The OPCAT
thus requires much closer, more direct scrutiny of places hitherto beyond the easy
reach of international bodies. This heightened scrutiny is likely to be unpalatable
to many states in the Asia-Pacific region. The CRPD’s domestic mechanisms, and
the formal requirement for involvement of NHRIs and civil society, also give issues
of implementation greater visibility domestically and increase pressure on states
parties for accountability.
84 See, eg, M. Evans, ‘The Place of the Optional Protocol in the Scheme of International Approaches
to Torture and Torture Prevention and Resulting Issues’, in H. Scheu and S. Hybenerova (eds),
International and National Mechanisms Against Torture, Prague: University Karlova (Prague) Law School,
2004, p. 32.
However, at least in relation to the OPCAT, this factor may at least partially be
counteracted by the treaty’s explicitly cooperative, confidential and non-judicial
focus,85 drawing on the experience of the International Committee of the Red
Cross.86 This may be relatively appealing to Asia-Pacific states, many of which have
shown a preference for handling human rights concerns in a non-confrontational,
diplomatic manner rather than through formal and public judicial means.
The shift from norm-setting to implementation

The OPCAT and CRPD are not simply norm-setting treaties, but rather
‘operational’ or ‘action-oriented’ treaties, focused on strengthening the conditions

necessary to implement existing rights in the CAT and codified in the CRPD.87 At
least in relation to the OPCAT, many states across the Asia-Pacific region may
simply not be ready for this shift, as the normative prohibitions on torture and cruel,
inhuman or degrading treatment are still not firmly entrenched in domestic law,
policy and practice. Of the 38 states in the region considered for the purposes of
this chapter, only 16 (under half) are parties to the CAT, and only parties to the
CAT can become parties to the OPCAT; also only some states have specifically
prohibited and criminalized torture and ill-treatment treatment in their laws.88 In
some jurisdictions, acts that would constitute torture or ill-treatment are prohibited
under ordinary criminal law, for example as assault, serious assault or grievous
bodily harm.89 Not only is torture not fully criminalized in the region, but many
states resort to it as a means of social control.90 The goal of creating complex NPM
mechanisms may therefore be hindered by the lack of acceptance, relative to other
regions, of the core norm the NPMs seek to uphold.
Both treaties, and particularly the OPCAT, can be understood as higher-level
operational treaties, whose institution-building obligations can only really be
effective if a government has accepted the underlying norms and is committed
to enforcing them. However, an alternative perspective is that the process of
implementing the OPCAT and CRPD institution-building obligations has an
important normative function. That is, action towards ratifying the OPCAT and
85 OPCAT, arts 2(3), 2(4), preamble.

86 Nowak and McArthur, op. cit. (note 16), pp. 1161–2.
87 B. Bernath, APT Chief of Operations, ‘Summary Document’, OPCAT seminar in Sydney,
November 2009, p. 3, para. 2.1, available at: <http://www.humanrights.gov.au/human_rights/
opcat/opcat_seminar2009.html> (accessed 21 March 2010); Olivier and Narvaez, op. cit. (note
35), p. 41.
88 For example, Australia, Bangladesh, Cambodia, Indonesia, Japan, Maldives, Mongolia, Nepal,
the Philippines, New Zealand, South Korea, Sri Lanka, Thailand, Timor-Leste: APT,
‘Compilation of Torture Laws’, available at: <http://www.apt.ch> (accessed 25 April 2010).
89 For example, this was the approach of Australia until the 2010 enactment of a specific federal
torture offence via the Crimes Legislation Amendment (Torture Prohibition and Death Penalty
Abolition) Act 2010 (Cth).
90 Asian Human Rights Commission, ‘No Torture’, available at: <http://notorture.ahrchk.net/
index.php> (accessed 21 March 2010).
establishing/designating NPMs will contribute to promoting and acculturating the
norm of the prohibition of torture. Similarly, the CRPD obligations of national
implementation and monitoring serve to foster and consolidate the institutional
preconditions necessary to ensure the realization of the Convention’s norms.91
The role of NHRIs and civil society in implementation and

monitoring: strengthening relationships between domestic
stakeholders
The obligations to include NHRIs and civil society in the implementation and
monitoring mechanisms have been highlighted as some of the especially innovative

provisions in the CRPD. These obligations may come to be particularly important
in the Asia-Pacific region, as the relative lack of strong regional and domestic
human rights institutions means that it is through the interactions between states,
NHRIs and civil society that much of the key human rights work in the region is
done.
For example, civil society is playing an instrumental role in the design of NPMs
worldwide. Internationally, this work is being led by the Geneva-based NGO, the
Association for the Prevention of Torture (‘APT’), which has offered states
assistance in a variety of ways92 and whose website far surpasses the UN’s OPCAT
website in terms of quality and usefulness. The fact that this guidance is coming
from outside the UN system shows that the process of implementing the OPCAT
is generating broader forms of transnational interaction.
In relation to the CRPD, it has been observed that article 33(2) ‘makes explicit
what is already implicit in international law – namely that NHRIs should have a
key role to play in holding Governments accountable locally to their international
legal obligations in the field of human rights’.93 However, again, some regional
states are likely to regard the obligation to involve NHRIs and civil society as posing
risks, because it heightens opportunities for criticism of government.
The OPCAT poses similar challenges. Although the OPCAT does not explicitly
mandate civil society involvement in the same way as the CRPD, both treaties’
domestic monitoring and implementation mechanisms are designed to stimulate
greater dialogue between government and non-state actors. For example, con-
siderable consultation among stakeholders is regarded as critical to determining
91 G. Quinn, ‘Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons
with Disabilities Socialise States to Right Behaviour?’, in O. Arnardóttir and G. Quinn (eds), The
UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, The Hague:
Martins Nijhoff, 2009, pp. 215–56.
92 APT, op. cit. (note 14).
93 G. Quinn, ‘NHRIs and Next Steps Under the UN Convention on the Human Rights of Persons
with Disabilities’, paper presented at 19th session, Annual Meeting of International Coordinating
Committee, NHRI Forum, Geneva, 23 March 2007, p. 4, available at: <http://www.nhri.nic.in/
2007/ICC_NHRIs_Disability-G_Quinn_EN.pdf> (accessed 25 April 2010).
the appropriate model for the NPM.94 In almost all states with an NHRI, that body
has been designated upon ratification of the OPCAT as the NPM.95 Some states
parties have an ‘extensive patchwork of bodies’ constituting their NPM,96 which
raises the question of how well such a patchwork will be able to be woven together,
particularly in developing Asia-Pacific states, where the fabric of existing human
rights bodies is not always strong and stakeholders may not be used to working
together.97 Again, this is likely to be especially challenging in those Asia-Pacific
states that lack strong NHRIs. Of course, another, more positive perspective is that
a cross-cutting, whole-of-government approach can have the effect of deepening
the embedding of norms, in contrast to a centralized single mechanism, whose
reach might be limited and which would have greater difficulty in effecting cultural
changes regarding human rights.
In both the CRPD and OPCAT, effective national monitoring mechanisms,
frameworks and NPMs are essentially predicated on there being strong institutional
structures within the state enabling independent bodies to conduct monitoring,
report back to the government, discuss issues with the government, and make
recommendations and critiques publicly. This requires that NPMs be functionally
independent and assumes an operational environment and culture where this kind
of free and open dialogue on sensitive human rights issues can occur, without fear
of intimidation or persecution. At present, this is not the case in many states in the
Asia-Pacific.
It is, perhaps, again a case of the chicken and the egg, in that the process of
working towards OPCAT and CRPD ratification may help to open greater
dialogue between stakeholders and generate the conditions necessary for that kind
of environment to be established. However, there is still a need for that kind of
environment to be operating already, at least to a certain extent, for the state to be
receptive to preparatory work towards ratification, for the work of the domestic
monitoring mechanisms to be effective, and for actors to be able to push the agenda
forward.
In sum, therefore, the lack of strong NHRIs and an open human rights culture
in some Asia-Pacific states may be a serious impediment to rapid progress towards
ratification of the CRPD and the OPCAT, and/or the effective operation of their
monitoring and implementation mechanisms. So far, however, there are many
examples of positive activity across the region by NGOs and civil society in
promoting the OPCAT and the CRPD. The low ratification rates therefore belie
much important activity behind the scenes, as discussed below.
94 Remarks made by S. Casale in ‘Implementing the OPCAT in Australia: Summary Paper of

Seminar hosted by Australian Human Rights Commission and APF, 25 November 2009’
(attended by author), p. 5, available at: <http://www.humanrights.gov.au/human_rights/opcat/
opcat_seminar2009.html> (accessed 25 April 2010), (‘AHRC Summary’).
95 K. Fitzpatrick in AHRC Summary, op. cit. (note 94), para. 1.2.
96 Evans and Haenni-Dale, op. cit. (note 15), p. 53.
97 Olivier and Narvaez, op. cit. (note 35), p. 43.
Issues of capacity, resources and timeframes
Perhaps the most significant challenge posed by the institution-building obligations
of the OPCAT and the CRPD is capacity. Both treaties place binding obligations
on states parties to do a great deal more work on treaty implementation and
monitoring than other human rights treaties. This is likely to slow down ratification,
as the majority of Asia-Pacific states are developing countries98 with constraints on
resources and capacity.
For example, full implementation of OPCAT obligations may require a party
to legislate to ensure that appropriate access to places of detention be given to the
Subcommittee and the NPM. Ideally, it requires conducting an inventory of all
relevant existing laws, policies and places of detention, to evaluate how access may
be facilitated and whether legislative change is required, and evaluating existing
monitoring mechanisms to ascertain whether they comply with the OPCAT. This
is potentially a very large and onerous undertaking.
Additional costs and resources are required to enable NPMs to carry out their
work, including conducting regular visits to places of detention. This will be a
significant disincentive to countries with limited economic resources; for some
regional states (such as Timor Leste), there are simply other much greater invest-
ment priorities, such as focusing on national development and natural disasters.99
The CRPD may impose less of an institutional workload in some respects than the
OPCAT, as for many states, designating focal points is more about formalizing
existing arrangements than creating new ones. However, effectively implementing
the focal points, coordination mechanisms and framework will also require signifi-
cant resources.
With the OPCAT, a particularly onerous challenge is the tight time limits on
designating or establishing a NPM. Each state party must do this within one year
of the OPCAT entry into force (June 2007), or within one year of ratification/
accession.100 Designing and implementing an NPM is a complex process, and so
far it seems that many states are having significant difficulties in meeting this
deadline. This one-year time-frame is relatively short, particularly for federal states
such as Australia, with multiple state and territory stakeholders that must be
consulted, and where reaching agreement on an NPM model may be a lengthy
process.101 There is, however, scope for states to postpone implementation of NPM
or Subcommittee obligations for three years under article 24 of the OPCAT. The
Philippines has expressed its intention to take advantage of the three-year deferral
option,102 and it is likely that other Asia-Pacific states will also take up this option.
98 Fifty-five of 62 member and associate member states of UNESCAP are developing countries. This
includes 14 of the 16 PIF States: PIF Review, op. cit. (note 59), p. 20.
99 Harding and Morgan, op. cit. (note 37), pp. 101, 103.
100 OPCAT, art. 17.
101 In contrast to the relative ease of a unitary state such as New Zealand: Harding and Morgan,
op. cit. (note 37), p. 107.
102 Philippines Senate Committee on Foreign Relations, public hearing on OPCAT ratification.
See APT, ‘Monthly OPCAT Briefing: October 2009’, 8 October 2009, p. 1, available at:
According to the APT, as at 31 October 2010, only 32 of the then 57 states parties
to the OPCATdesignated their NPM.103 Of those 32 states, several of them were
late. Of the remaining 25, it appears that at least 16 of them had not been able to
do it within the required time-frame, and therefore were technically in breach of
the treaty – including Cambodia, one of the three parties from the Asia-Pacific
region.
So far, the Subcommittee appears to be taking a soft approach to these breaches,
perhaps in order not to deter states from becoming party. However, the OPCAT’s
tight time-frames may pose significant challenges to the regional uptake of the
OPCAT. As many other OPCAT parties have already been experiencing, states
may ratify in good faith and then struggle with implementation and end up being
late. Other States may decline to become party at all, because of the challenges
involved. States may defer becoming party, taking the time to prepare for ratifi-
cation slowly and carefully, in order to ensure that NPMs are established well. Fear
of being in breach by missing the one-year deadline may otherwise encourage some
states to designate or establish NPMs too quickly, resulting in a rushed process and
an incomplete or poor quality outcome – which the UN Committee Against
Torture found had occurred in Sweden.104
Similarly, in relation to the CRPD, it has been suggested that an inherent danger
is that ‘the pace of domestic law reform, in the haste to ratify the CRPD and the
Optional Protocol or to bring national laws into alignment following ratification,
may compromise both the quality of the process as well as the ultimate result’.105
It has therefore been argued that ‘[i]f the Convention is to realize its expressive
value, domestic change must occur in a transparent and participatory process, one
that necessarily is time intensive and not particularly efficient’.106
Progress on ratification of both two treaties (and particularly the OPCAT) may
need to be relatively slow and incremental to be most effective. After all, ‘[r]atifi-
cation is not the “magic moment” of acceptance of human rights norms. Rather,
ratification is a point in the broader process of incorporation’.107 Education and
capacity-building will therefore be especially important in facilitating regional
progress towards OPCAT and CRPD ratification in the region.
The slower pathway is the one that will be likely to result in the most effective
implementation of the OPCAT and CRPD. This means striking the difficult
balance between: (a) continuing to advocate for ratification across the region, but
not placing too much pressure on states to do it too quickly as this may deter uptake,
<http://www.apt.ch/index2.php?option=com_docman&task=doc_view&gid=383&Itemid=59>
(accessed 24 April 2010).
103 APT, ‘List of Designated National Preventive Mechanisms’, available at: <http://www.apt.ch>
(accessed 31 October 2010).
104 Committee Against Torture, Concluding Observations on Sweden, UN Doc. CAT/C/SWE/
CO/5 (2008), para. 25.
105 M. Stein and J. Lord, ‘Future Prospects for the United Nations Convention on the Rights of
Persons with Disabilities’, in Arnardóttir and Quinn (eds), op. cit. (note 91), p. 37.
106 Ibid.
107 R. Goodman and D. Jinks, ‘Measuring the Effects of Human Rights Treaties’, European Journal of
International Law 14, 2003, p. 171 at p. 173.
and instead focusing on capacity-building and strengthening the human rights
culture; and (b) avoiding the process faltering and becoming too slow or stagnant.
What this will mean is that progress on the two treaties will not be able to be easily
measured by signature and ratification rates, because much progress needs to occur
behind the scenes in order to ensure that a state is ready to become party.
There is already considerable evidence of this happening. For example, the low
OPCAT ratification rates belie much activity in some states and much advocacy
and capacity-building on the part of NGOs. Apart from the two existing signatories
(Australia and Timor-Leste), several states in the region are actively working
towards becoming party,108 although it is unclear when that will occur.
In this respect, the novel requirement in article 32 of the CRPD for disability-
inclusive and accessible development assistance is especially significant, because
the realization of many of the rights in the CRPD (particularly economic, social
and cultural rights) requires considerable allocation of additional resources.109 Apart
from the UNESCAP and OHCHR, there are also several international NGOs
providing important technical assistance and doing capacity-building work in the
Asian region,110 in addition to the work in the Pacific of entities such as the Pacific
Disability Forum and the Australian Human Rights Commission.111
The OPCAT does not contain any similar obligations regarding an ‘inclusive
development mandate’. However important technical assistance and capacity-
building work is being done by several international and regional bodies, such as
the APT since 2005.112 For the OPCAT in particular, more education and
advocacy on entrenching the fundamental norm of the prohibition of torture and
cruel, inhuman or degrading treatment or punishment will be necessary to lay the
foundations for future uptake of the OPCAT.
108 Including South Korea, Nepal, Indonesia and the Philippines: APT, ‘OPCAT Global Campaign
Progress Report’, 17 April 2007, available at: <http://www.apt.ch/images/OPCAT/opcat%20
progress%20report.pdf> (accessed 1 May 2010); and also possibly Thailand: Harding and
Morgan, op. cit. (note 37), p. 102; as well as Japan: A. Kuwayama, ‘Exploring the Possibility
of Designating a National Preventive Mechanism in Japan’, Essex Human Rights Review 6, 2010,
p. 125 at p. 126.
109 See, eg, Development for All: Towards a Disability-Inclusive Australian Aid Program 2009–2014,
available at: <http://www.ausaid.gov.au/publications/pubout.cfm?ID=8131_1629_9578_8310_
297&Type=> (accessed 27 April 2010).
110 For example the Harvard Law School Project on Disability (HPOD): HPOD, ‘Brief Report on
Activities’, available at: <http://hpod.org/activities> (accessed 13 September 2010).
111 G. Innes, Disability Discrimination Commissioner and Race Discrimination Commissioner,
Australia, ‘Keynote Address’, Pacific Islands Forum Disability Ministers’ Meeting, Rarotonga,
Cook Islands, 21–23 October 2009, available at: <http://www.humanrights.gov.au/disability_
rights/speeches/2009/pif.htm> (accessed 27 April 2010).
112 APT, ‘Thailand: Implementing the UN Convention Against Torture’, available at:
<http://www.apt.ch> (accessed 24 April 2010); APT, ‘The Asia Pacific Programme’, available
at: <http://www.apt.ch> (accessed 24 April 2010); APT, ‘The Asia Pacific Forum’, available at:
<http://www.apt.ch> (accessed 24 April 2010).
Conclusion
This chapter has highlighted some of the key challenges raised by the domestic
implementation and monitoring mechanisms in the OPCAT and the CRPD, and
discussed how these challenges may have particular application to states in the Asia-
Pacific region. So far, the relatively low uptake of the OPCAT and CRPD by Asia-
Pacific states provides an interesting case study in examining some of the deeper
challenges of strengthening human rights institution-building in the region.
Of course, the region’s diversity and the specificity of each country’s circum-
stances make it difficult to draw a general observation. The reasons for the low
uptake are complex, country-specific and driven by different variables. Therefore,
it is important to be ‘realistic, pragmatic, and diplomatic’ in evaluating progress.113

For some countries, key factors proving a challenge to implementation of the two
treaties will be their stage of economic development and the lack of a strong human
rights culture. For others (like Australia), an important challenge will be reaching
agreement among different components of a federal system. For all states, however,
a challenge is presented by the need to adapt to monitoring and implementation
mechanisms that have little precedent in international human rights law.
All new innovations require time for adaptation and effective implementation,
and it is still early days in the life of the OPCAT and CRPD. The two treaties’
institution-building innovations hold considerable promise as fresh new means of
strengthening human rights compliance, and despite their short history so far, there
is a rapidly growing body of analysis of their new features, which will continue to
grow as state practice gradually develops. What is clear is that for states across the
region to adapt to these innovations they will need time. If these processes are
rushed, in an effort simply to establish the mechanisms in a formalistic manner,
there is a risk that the focus will become concentrated more on the procedures
themselves, and not on the substantive goal of improving human rights compliance.
These are challenges for all states, but particularly developing states, and are
perhaps especially acute for the Asia-Pacific region.
Critical to facilitating regional adaptation will be increased human rights
education, advocacy, development assistance and capacity-building by the relevant
UN bodies, and working collaboratively with regional and local human rights
institutions, NGOs and networks. This will require increased and ongoing allocation
of funding and resources to the OPCAT Subcommittee and Committee on the
Rights of Persons with Disabilities. As already noted, the Subcommittee’s ability to
fulfil its mandate effectively is severely restricted by its very limited UN budget,114
with the result that much of the leadership and work in facilitating regional
adaptation of the OPCAT is currently being undertaken by the key NGO, the APT.
As discussed earlier, the role that the OPCAT and CRPD play in requiring and
catalysing increased involvement of civil society is highly positive, and one of the

114 Casale, op. cit. (note 28), p. 13.
distinctive features of the two treaties. However, there is also a risk that, if the UN
and its member states do not provide sufficient support to the Subcommittee and
the Committee on the Rights of Persons with Disabilities, these bodies will be
constrained in their ability to promote the processes of advocacy, education and
capacity-building that are necessary for facilitating regional receptiveness to the
treaties. In turn, this could heighten the risk that regional states will be ill-equipped
to adapt effectively and that some of the challenges outlined in this chapter may
hinder states’ ability to become party, or to implement their treaty obligations
effectively upon becoming party.
Writing in 2002, when publishing the results of a major study of the domestic
impact of the UN treaty system, Heyns and Viljoen argued that attempts to
strengthen monitoring mechanisms:
must be supplemented by creative efforts to ensure that treaty norms are

internalised in the domestic legal and cultural system, and are enforced on that
level. The challenge is to harness the treaty system to domestic forces –
‘domestic constituencies’ – that will ensure its realisation.115
The sophisticated institution-building machinery of the OPCAT and the CRPD

represents precisely these kinds of creative efforts to harness the treaty system to
domestic forces. It will require commitment, capacity-building and sustained
creative efforts to drive forward their effective uptake and implementation in the
Asia-Pacific region.
115 C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level,
The Hague: Kluwer, 2002, p. 6.
5 Chinese practice in UN
treaty monitoring bodies:
principled sovereignty
and slow appreciation
Wim Muller
Introduction
A discussion of the prospects for a regional human rights mechanism in the Asia-
Pacific region cannot take place without taking account of the regional giant, China,
and its position in international human rights law. China has long been the rising
power in the region and is a permanent member of the UN Security Council.
It thus has great potential to influence other states in the region. The Chinese
government has been extremely sensitive to issues potentially impinging on China’s
sovereignty, especially when it comes to its human rights record, which continues
to be a source of controversy both within the region and beyond. China’s position
on human rights matters, and notably their relation to state sovereignty, will
influence the foreign policy not only of countries in the Asia-Pacific region, but
also in Africa, and the other ‘BRIC’ (Brazil, Russia, India and China) countries.
If China would acquiesce in, or even participate in, a regional human rights
mechanism, it could have a significant effect on the participation of other states. It
is therefore valuable to question the extent to which China may be willing to accept
institutionalized limitations on its sovereignty, and how it will regard other states
creating institutions that limit their own.
This chapter poses an answer to this question by examining China’s practice
before UN human rights bodies, focusing on the government’s normative under-
standing of international human rights obligations, level of cooperation with treaty
bodies and attitude towards other forms of international monitoring and
supervision. Through this exploration of China’s experience with international
human rights monitoring at the universal level, this chapter gauges China’s
probable attitude to regional monitoring of its human rights record.
The People’s Republic of China (‘PRC’) is party to most of the core UN human
rights treaties,1 except for the International Covenant on Civil and Political Rights
1 In chronological order, China became a party to the Convention on the Elimination of All Forms
of Discrimination against Women, 1249 UNTS 13 (entered into force 3 September 1981)
(‘CEDAW’); International Convention on the Elimination of All Forms of Racial Discrimination,
660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’); Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (entered into
force 26 June 1987) (‘CAT’); Convention on the Rights of the Child, 1577 UNTS 3 (entered into
(‘ICCPR’),2 which it has signed. It reports regularly to the bodies monitoring these
treaties, including the Human Rights Committee for the Special Administrative
Region of Hong Kong.3 However, China has not accepted any of the more
intrusive powers of treaty bodies, such as the investigatory power of the Committee
against Torture, any right of individual petition or international dispute settlement
mechanisms. At best, this betrays a distrust of international institutions. At worst,
however, China’s reluctance leaves it vulnerable to allegations of window dressing
and hypocrisy in signing up to international norms without providing international
institutions any means of verifying its compliance. China’s insistence on its
sovereignty and non-interference in its domestic affairs could lead to pessimism
about its readiness to accept more intrusive forms of human rights monitoring or
supervision, such as a regional institution.
Based on the analysis presented here, this pessimism should not be overstated.
China is, for the time being, unlikely to accept any institutionalized form of inter-
nationalized monitoring or supervision of its human rights obligations other than
the periodic reporting to treaty bodies. However, there is no indication that this
will not change in the future, and China seems content to let other states develop
new institutions. The modest approach which most of these bodies have adopted
towards China in recent years therefore seems to be the most appropriate way
to contribute to improvements in China’s compliance with its human rights
obligations, and also to increase its openness towards institutional innovations.
However, at the international level this leads to a risk in normative erosion.
Although China has accepted the main international human rights norms and does
not challenge them, in the area of implementation and interpretation it attempts
to impose a model of progressive realization on all human rights, including those
which are traditionally seen as obligations of result rather than due diligence. This
could have an impact on the wider area of international human rights law.4 It also
explains why the one treaty body with which China has a more difficult relationship
is the Committee Against Torture.
Sovereignty-oriented concerns are not unique to China. Both at the regional
level and at the universal level, many states had similar objections to monitoring
and supervisory mechanisms. By starting with the acceptance of the norms laid
down in human rights treaties, they were able to gradually accept international
monitoring and supervision, and grew willing to comply with views and judgments
laid down by international bodies. In Europe, the European Commission and
force 2 September 1990) (‘CRC’); International Covenant on Economic, Social and Cultural
Rights, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
2 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
3 Although China also continues to apply the ICCPR in Macao, it appears to have stopped reporting,
despite the expectation of the Human Rights Committee that it would continue to do so. See
Human Rights Committee, Concluding Observations on Portugal (Macao), UN Doc. CCPR/C/
79/Add.115 (1999), para. 3. The first report, still due, was expected by 31 October 2001.
4 See generally, A. Boyle, and C. Chinkin, The Making of International Law, Oxford: Oxford University
Press, 2007, pp. 154–7; M. Kamminga, and M. Scheinin, (eds), The Impact of Human Rights Law on
General International Law, Oxford: Oxford University Press, 2009.
Chinese practice in UN treaty monitoring bodies 89
Court of Human Rights took decades to become reasonably active, and the UN
Human Rights Committee also took some time. Alternatively, China might follow
the path of the United States, which has been a major normative force in inter-
national human rights law but has consistently refused to accept any form of
international monitoring except through reporting to treaty bodies. China has in
common with the United States that it is a major power and potential superpower
and a permanent member of the UN Security Council. In its attitude towards
institutions such as the International Criminal Court, it already often mirrors or
emulates US behaviour.5
China’s position in international human rights law

Before replacing the Republic of China (Taiwan) as the representative of ‘China’
in the United Nations, the PRC had a revolutionary attitude towards the inter-
national legal order and the UN as an institution, though subscribed to the prin-
ciples and purposes of the Charter. After taking China’s UN seat in 1971, the PRC
embarked on a period of ‘learning’ and adopted a cautious approach in a favour-
able diplomatic climate where it was seen as a potential counterweight to the Soviet
Union.6 A turning point came with the violent suppression of the democracy
movement centred around Tiananmen Square in 1989. The PRC’s human rights
record was subjected to unprecedented scrutiny in UN human rights bodies. The
extremely critical attitude towards China in the Commission on Human Rights
also spilled over into the treaty monitoring bodies.7 In response to this international
pressure, China issued a rather defensive White Paper on human rights in 1991.8
Since then, its attitude to international human rights institutions has aptly been
described as ‘engagement and resistance’.9
Starting with the White Paper, China’s position in international human rights
diplomacy as well as international human rights law – the Chinese government
does not seem to distinguish between the two – has been remarkably consistent. It
has adopted a number of key principled positions which are repeated over and over
again, often in very similar language, in communications with treaty bodies, the
Commission on Human Rights and its successor the Human Rights Council, and
5 See J. Lu and Z. Wang, ‘China’s Attitude towards the ICC’, Journal of International Criminal Justice
3, 2005, p. 608.
6 See generally S. Kim, China, the United Nations, and World Order, Princeton: Princeton University
Press, 1979; H. Chiu, ‘Communist China’s Attitude Toward International Law’, American Journal
of International Law 60, 1966, p. 245; H. Chiu, and R. Edwards, ‘Communist China’s Attitude
Towards the United Nations: A Legal Analysis’, American Journal of International Law 62, 1968, p. 20.
7 See generally A. Kent, Between Freedom and Subsistence: China and Human Rights, Hong Kong: Oxford
University Press, 1993; A. Kent, China, the United Nations, and Human Rights: the Limits of Compliance,
Pennsylvania: University of Pennsylvania Press, 1999; A. Kent, Beyond Compliance: China, International
Organizations, and Global Security, California: Stanford University Press, 2007.
8 Information Office of the State Council of the People’s Republic of China, ‘Human Rights in
China’, 1991, available at: <http://china.org.cn/e-white/7/index.htm> (accessed 30 March
2010) (‘Human Rights in China’).
9 R. Peerenboom, China Modernizes: Threat to the West or Model for the Rest?, New York: Oxford
University Press, 2007, p. 83.
other fora. At the same time, China has taken an increasingly active role in inter-
national human rights activities, hosting the Fourth World Conference on Women
in Beijing in 1995 and playing a major role in the establishment of the Human
Rights Council and subjecting itself as one of the first states to the Council’s new
Universal Periodic Review (‘UPR’).10 Shortly after its UPR, it also adopted a
National Human Rights Action Plan (2009–10),11 as called for in the 1993 Vienna
Declaration and Programme of Action.12
The key positions have remained more or less the same since 1991 and can be
illustrated by reference to China’s reports and publications on human rights,
notably its 1991 White Paper, its UPR Report and its National Human Rights
Action Plan. They appear regularly in China’s exchanges with treaty bodies.
Normative acceptance
The first key position is China’s acceptance of international human rights standards.
China has repeatedly emphasized its recognition and observance of the UN
Charter and its support for ‘the goal and principle of promoting human rights’.13
However, this ignores the issues of interpretation, application and compliance. In
terms of normative acceptance, it is important to recall that a breach of the norms
through human rights violations does not diminish the status of the norm and can
in fact reaffirm it.14
Similarly, in reports to all treaty bodies, China has consistently repeated its
acceptance of international human rights norms, asserting its compliance and
referring approvingly to international standards, both with treaties as well as non-
binding instruments such as the Universal Declaration of Human Rights and the
Vienna Declaration and Programme of Action, and even the ICCPR although
China is yet to become a party.15 It styled itself as an active participant in the
drafting of the CAT16 and the CRC.17
10 National Report on China, UN Doc. A/HRC/WG.6/4/CHN/1 (2008) (‘UPR Report’).

11 Information Office of the State Council of the People’s Republic of China, ‘National Human
Rights Action Plan of China (2009–2010)’, 2009, available at: <http://www.china.org.cn/
archive/2009-04/13/content_17595407.htm> (accessed 1 April 2010) (‘Action Plan’).
12 Vienna Declaration and Programme of Action: Report of the World Conference on Human
Rights, UN Doc. A/CONF.157/23 (1993).
13 See, eg, Supplementary Report submitted to the United Nations on the Implementation of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
UN Doc. CAT/C/7/Add.14 (1993), para. 60 (‘CAT Supplementary Report’).
14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Rep. 14, para. 186.
15 See, eg, Second Periodic Report of States Parties due in 1997: China, UN Doc. CRC/C/83/
Add.9 (2005), para. 73.
16 CAT Supplementary Report, op. cit. (note 13), paras 1, 60. China is mentioned once in the
drafting history described by two of the main drafters of the CAT: J. Burgers and H. Danelius,
The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dordrecht: Martinus Nijhoff, 1988, pp. 93–5.
17 Initial Reports of States Parties due in 1994: China, UN Doc. CRC/C/11/Add.7 (1995), para.
1.
Priorities and progressive development: universality with
Chinese characteristics
A second key position is that governments are in the best position to judge how
best to implement human rights standards in their country. It is linked to the official
historical narrative of the PRC, which holds that China, an ancient nation
humiliated at the hands of the imperialist powers in the nineteenth century, only
won ‘national independence and liberation’ through the Communist revolution
of 1949. Only then did ‘the Chinese people’ become ‘the masters of the country in
the true sense’. The revolution established a ‘fundamental social and political
system for the promotion and protection of human rights’.18
As a result, the ‘Chinese people’ have their own take on human rights and
priorities. Although China ‘respects the principle of the universality of human
rights’, all states need to adopt measures ‘in the light of their national realities’.19
The ‘universality debate’ is thus shifted from human rights norms themselves to
the specific way they are applied and their relative priority. Furthermore, reflecting
both its socialist legacy and its alignment with the developing world, China empha-
sizes the indivisibility of human rights as meaning that economic, social and cultural
rights and the right to development should be considered at least equally important
as civil and political rights.20 In the UPR Report and the National Human Rights
Action Plan, China explicitly gives priority to ‘the people’s right to subsistence and
development’.21
The issue of priority reflects the frustration of the Chinese government with what
it considers the one-sided focus on civil and political rights, especially of its minori-
ties, even though it has made remarkable achievements in the area of subsistence
rights and economic and social rights for many more people, and does not receive
enough credit for this. This argument is not without merit and has found a sym-
pathetic hearing with a number of observers.22 At the same time, the Chinese
government has not explained why protecting civil and political rights would
necessarily impair the realization of social and economic rights. This position,
strongly implied by references to ‘the coordinated development of economic, social
and cultural rights as well as civil and political rights’ and ‘the balanced develop-
ment of individual and collective rights’, 23 serves to frame all human rights as
subject to progressive realization and downplays the direct applicability of certain
rights.
18 UPR Report, op. cit. (note 10), para. 3. See also, Core Document Forming Part of the Reports
of States Parties: China, UN Doc. HRI/CORE/1/Add.21 (1993), para. 13.
19 UPR Report, op. cit. (note 10), para. 6.
20 As also laid down in the Vienna Declaration, op. cit. (note 12).
21 Action Plan, op. cit. (note 11).
22 Peerenboom, op. cit. (note 9), pp. 163–83.
Selective, politicized application of human rights and the
need for ‘objectivity’
A related recurring issue is the selective use of human rights for political purposes
by other states (and non-governmental organizations – ‘NGOs’), which colours
China’s position on human rights diplomacy. Its final key position is that human
rights diplomacy should focus on ‘dialogue and cooperation based on equality and
mutual respect’, as in light of differences in their political, historical and cultural
outlook, ‘it is natural for countries to have different views on human rights’. China
emphasizes ‘exchanges and cooperation’, not confrontation, and promotes a
‘fair, objective and non-selective’ approach to human rights issues.24 This is tied
to insistence on the importance of the sovereignty of states, within which the
issue of human rights ‘falls by and large’. Again, governments are in the best
position to judge how to implement human rights and a country’s human rights
situation cannot be ‘evaluated according to a preconceived model or the
conditions of another country or region’. This is the basis for China’s complaints
about ‘interfering in other countries’ internal affairs on the pretext of human
rights’.25
China’s reporting practice
Legal framework and general observations
Leaving aside the question of the extent to which the rights protected by these
treaties have become customary international law, China is legally bound by the
norms in the core UN human rights treaties to which it is party. It is obliged to
refrain from acts which would defeat the object and purpose of the ICCPR,26 which
is in any case applicable to parts of its territory. China describes its understanding
of its obligations in the National Human Rights Action Plan:
China will earnestly fulfill its obligations to those conventions, submit timely
reports on implementing the conventions to the treaty bodies concerned, hold
constructive dialogues with these treaty bodies, take into full consideration the
proposals raised by them, and adopt rational and feasible ones in the light of
China’s actual conditions.27
24 UPR Report, op. cit. (note 10), para. 8.

25 Human Rights in China, op. cit. (note 8), preface. See also E. Brems, Human Rights: Universality
and Diversity, The Hague: Kluwer, 2001, pp. 50–4; H. Xue, ‘Chinese Observations on International
Law’, Chinese Journal of International Law 6, 2007, p. 85.
26 Vienna Convention on the Law of Treaties, 1155 UNTS 331, art. 18 (entered into force 27
January 1980). This provision reflects customary international law.
This suggests an emphasis on procedural compliance and due diligence, an aversion
to criticism and confrontation, and treatment of the views of the treaty bodies
primarily as advice whilst retaining ultimate judgment for the Chinese government
itself.
In the absence of Chinese acceptance of other international mechanisms,
periodic state reports are the only means through which treaty bodies can monitor
China’s compliance with human rights standards. As the members of the com-
mittees are free to use other sources, they often refer to information supplied either
by the special mechanisms of the former Commission on Human Rights (now the
Human Rights Council), such as the Special Rapporteur on the question of torture
or the working group on arbitrary detention, or by non-governmental organizations

such as Amnesty International, Human Rights Watch and Human Rights in China.
China’s interaction with the treaty bodies can be divided into a number of phases
in which the nature of its reporting and dialogue with the committees changed.
This is partly due to developments in China, such as the Chinese delegates and
members of the committees getting used to each other, and partly because of
changes in the machinery of state reporting due to the practice of all states taking
part in it.28
Since the CEDAW, ICERD, CRC and ICESCR have the common feature that
they are, by and large, aspirational treaties, the obligations they contain are usually
ones of due diligence and rarely directly measurable. The extent to which com-
pliance can be assessed, based solely on the sources of information described above,
has resulted in their reporting histories being remarkably similar. The initial
encounters with the CEDAW and ICERD committees29 in the 1980s were
characterized by relatively short reports which merely enumerated legislation, and
polite exchanges between the treaty bodies and the Chinese delegations. The
CERD did express the wish for China to provide information ‘in a more amplified
manner’,30 after which China’s subsequent report was in compliance with the
committee’s guidelines and on time.31
In the 1990s, when China had also started reporting to the Committee against
Torture (‘CAT’) and the Committee on the Rights of the Child (‘CRC’), encounters
between Chinese delegations and the treaty bodies became more confrontational,
although the quality of Chinese reports as well as its delegations to Geneva and
New York improved significantly. During this time China was under fire in the
Commission on Human Rights, mainly due to the fallout from the Tiananmen
28 See, generally, A. Bayefsky, (ed.) The UN Human Rights System in the 21st Century, The Hague: Kluwer,
2000.
29 In the remainder of this chapter, treaty bodies will be referred to with the same acronym as their
treaty, except for the Committee on Economic, Social and Cultural Rights (‘CESCR’) and the
Committee for the Elimination of Racial Discrimination (‘CERD’).
30 Report of the Committee on the Elimination of Discrimination, UN GAOR, 38th sess., Supp.
No. 18, UN Doc. A/38/18 (1983), para. 466.
31 Report of the Committee on the Elimination of Discrimination, UN GAOR, 42th sess., Supp.
No. 18, UN Doc. A/42/18 (1987), para. 331.
events, but also due to a preceding period of unrest in Tibet.32 This led to more
specific and critical questions by members of the treaty bodies.33
Although the early focus on enumerations of legislative and administrative
measures remained, such information was increasingly supplemented with
statistical data. China ensured a large degree of procedural compliance, adhering
to the guidelines of the treaty bodies and taking its appearances before those bodies
seriously by sending large, high-level delegations. China’s attitude during this time
is reflected in the words of Ambassador Wu Jianmin, who headed numerous
delegations. In 1996, responding to strong questioning by treaty bodies relying on
NGO-provided information on politically sensitive issues, he told the CRC that
although the Cold War was over, ‘the world had not forgotten its prejudices, and
lies continued to be told about China’; China and the world needed to understand
each other through ‘an objective dialogue devoid of accusation’.34
In the first decade of the twenty-first century, committee members seem to have
concluded that an overly critical approach is neither helpful nor effective and
have turned to milder questioning of Chinese delegations, although prodding on
politically sensitive issues remains. China continues to improve its procedural
compliance and, in many respects, takes both its obligations and its reporting
very seriously at the diplomatic,35 but also substantive level. The latter, however,
depends on the topic, and the Chinese government ensures that it has the final
word and control over the assessment of its compliance, to the frustration of com-
mittee members. While the exchanges between the other treaty bodies, including
the first encounter between China and the Committee on Economic, Social and
Cultural Rights (‘CESCR’), have become milder, this is not the case with the
Committee against Torture. The most likely explanation is that the obligations in
the CAT are immediate, measurable and in principle require less state effort to
achieve than the more aspirational obligations in the other treaties.36
The reporting on the special administrative regions (‘SARs’) of Hong Kong and
Macao is conducted by their regional governments and has shown a considerable
amount of continuity with the reporting under their previous sovereigns – the
United Kingdom and Portugal respectively.37 Although representatives of these
governments have been merged into the Chinese delegations in their appearances
before treaty bodies, the discussion here is solely concerned with China’s reporting
on the mainland.
32 For detailed discussion, see Kent, China, the United Nations, and Human Rights, op. cit. (note 7), ch. 2.
33 See, eg, Report of the Committee for the Elimination of Racial Discrimination, UN GAOR, 45th
sess., Supp. No. 18, UN Doc. A/45/18 (1990), paras 118, 121, 124.
35 For example, in its concluding observations of 2005, the CRC complimented China on its
‘comprehensive and informative periodic report’ and the ‘large high-level, multisectoral
delegation’: Concluding Observations on China (including Hong Kong and Macau Special
Administrative Regions), UN Doc. CRC/C/CHN/CO/2 (2005), para. 2.
36 See also Compte rendu analytique de la 846e séance, UN Doc. CAT/C/SR.846 (2009), para. 36.
37 D. Panditaratne, ‘Reporting on Hong Kong to UN Human Rights Treaty Bodies: For Better or
Worse Since 1997?’, Human Rights Law Review 8, 2008, p. 295 at pp. 321–2.
Domestic application of the treaty
A recurring question before various treaty bodies is the issue of applicability of the
norms laid down in human rights treaties in China’s domestic legal order. Chinese
delegates before different bodies have, by and large, taken the same position, the
most complete expression of which took place before the CAT but applies to all
treaties:
China adhered to the principle of pacta sunt servanda. Under the Chinese legal
system, the international instruments to which that country was party were
considered part of Chinese law and legally binding. In the event of conflict
between an international instrument and a domestic law, the provisions of the

international instrument took precedence, unless contrary reservations applied.
The Convention against Torture, having been ratified by the Standing
Committee of the National People’s Congress, was binding on Chinese law-
enforcement and judicial organs. Special domestic measures nevertheless had
to be taken to give effect to the provisions of international treaties.38
Reporting to the CRC, it added that ‘[o]nly in cases which are not covered by the
domestic law, stipulations of the international conventions will be cited in the court
decision’.39 Similar positions have been taken before other treaty bodies, including
by some of China’s most prominent international lawyers.40 It is confirmed in
legal scholarship.41 The apparent contradiction between the assertion that inter-
national instruments are part of domestic law but still need implementation has
not yet been resolved adequately. The lack of clarity on this issue and subtle shifts
38 Summary Record of the 419th Meeting: China, Poland, UN Doc. CAT/C/SR.419 (2000).
39 Reply to List of Issues: China, UN Doc. CRC/C.21/WP.5 (1996), para. 2.
40 See, eg, Summary Record of the 252nd Meeting, UN Doc. CAT/C/SR.252/Add.1 (1996), para.
6; Summary Record of the 1164th Meeting, UN Doc. CERD/C/SR.1164 (1996), para. 44;
Summary Record of the 1459th Meeting, UN Doc. CERD/C/SR.1459 (2001), paras 4, 47;
Summary Record of the 419th Meeting, UN Doc. CEDAW/C/SR.419 (2002), para. 36;
Summary Record of the 1062nd Meeting, para. 30, UN Doc. CRC/C/SR.1062 (2005). The
delegate in the exchange with CEDAW was Xue Hanqin, currently a judge in the International
Court of Justice and previously a member of the International Law Commission.
41 C. Wang, ‘Introduction: An Emerging Legal System’, in C. Wang, and X. Zhang (eds), Introduction
to Chinese Law, Hong Kong: Sweet & Maxwell, 1997, p. 1 at p. 22; Z. Li, ‘The Role of Domestic
Courts in the Adjudication of International Human Rights: a Survey of the Practice and Problems
in China’, in B. Conforti, and F. Francioni (eds), Enforcing International Human Rights in Domestic
Courts, The Hague: Martinus Nijhoff, 1997, p. 329 at p. 346; Y. Zhu, Concise Chinese Law, China
Law Press, 2003, p. 533; H. Xue and J. Qian, ‘International Treaties in the Chinese Domestic
Legal System’, Chinese Journal of International Law 8, 2009, p. 299. This last contribution seems to
have shifted position during in various incarnations. It was first envisioned for D. Sloss, and D.
Jinks (eds), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, Cambridge:
Cambridge University Press, 2009, but has not made it into the book (see p. 3, fn. 6). The present
author relied on an earlier SSRN version dated 9 July 2008, available at: <http://ssrn.com/
abstract=1157501> (accessed 1 April 2010). The author is grateful to Otto Malmgren for sharing
his findings on its history with him.
in China’s position may be an indication of a change in China’s internal position
on the issue.42
Be that as it may, this affirmation of the primacy of international law over
domestic law does not differ much from that of other states which automatically
accept some or all treaty provisions as having direct legal force.43 The position taken
by China does enable it to respond consistently to the often repeated criticism of
various treaty bodies that its domestic legislation should be brought in line with the
relevant convention, rather than assuming that it already is.44 If practice in China
is not fully in conformity with the convention because legislation has not yet been
adopted, China can always point to the direct applicability of non-incorporated
treaty provisions. The question remains to what extent these are actually applied
by Chinese courts.
Reservations, declarations and sovereignty

China has made reservations and declarations to every human rights treaty under
which it reports. Two of these are of a substantive nature: a declaration to the CRC
in light of China’s family planning policies, and to the ICESCR with regard to
China’s laws on trade unions. In both cases the declarations are justified by the
Chinese government in light of what it considers China’s specific situation, and it
has resisted calls to withdraw them.45 In the case of the ICESCR it also, rather
defensively, responded to questions about its declaration that ‘[n]o foreign country
should try to make unwarranted accusations or interferences in this regard’.46
All other statements are reservations of a procedural nature which demonstrate
China’s reluctance to accept restrictions on its sovereignty. It has made reservations
to dispute settlement clauses which provide for the jurisdiction of the International
Court of Justice,47 and, more significantly, the inquiry procedure provided for in
42 See O. Malmgren, ‘Constructing Enforcement – the Role of International Human Rights Treaties
in Chinese Law’, conference paper on file with the author.
43 Contrary to the claim by Kent, China, the United Nations, and Human Rights, op. cit. (note 7), p. 97.
See also Xue and Qian, op. cit. (note 41), pp. 12–13.
44 Concluding Comments of the Committee on the Elimination of Discrimination against Women:
China, UN Doc. CEDAW/C/CHN/CO/6 (2006), paras 9–10. The CAT has repeatedly called
for China to incorporate the definition of torture under art. 1 of the CAT in its legislation.
45 Compilation prepared by the Office of the High Commissioner for Human Rights, in accordance
with para. 15(b) of the annex to Human Rights Council Resolution 5/1, UN Doc.
A/HRC/WG.6/CHN/2 (2008). See also List of Issues to be Taken up in connection with the
Consideration of the Initial Report of China, UN Doc. CRC/C.12/WP.5 (1996); Written Replies
by the Government of China concerning the List of Issues, UN Doc. [no number] (1996), para.
1. The Chinese government considers its reservation a ‘declaration’: Summary Record of the
298th Meeting: China, UN Doc. CRC/C/SR.298 (1996), paras 30, 39, 46.
46 Replies by the Government of the People’s Republic of China, UN Doc. CESCR/NONE/
2004/10 (2004), paras 2, 20, 55. Contrary to the CRC, the CESCR has respected China’s
qualification of this reservation as a ‘declaration’.
47 CEDAW, art. 29(1); ICERD, art. 22; CAT, art. 30(1). The CEDAW allows this explicitly, even
though reservations to dispute settlement clauses would likely be acceptable anyway.
article 20 of the CAT (explicitly allowed by article 28), which enables the CAT to
initiate an investigation when presented with credible evidence of a systematic
practice of torture within a state party. Since China has accepted no optional right
of petition, it is not possible to independently verify facts asserted by China, nor
allegations by NGOs. It is noted, however, that at times China has invited members
of treaty bodies to come into the country, presumably in a more controlled setting.48
The Chinese government has consistently resisted pressure by the treaty bodies
to withdraw its declarations and reservations and to accept the optional procedures
provided by the treaties and optional protocols. The standard response to these
kinds of suggestions is a non-committal, polite assurance that the Chinese govern-
ment is taking them into consideration. 49 It also pointed out that these reservations
reflected China’s practice with regard to dispute settlement provisions.50 The
strongest pressure came from the CAT, which returned to the question at every
one of China’s appearances complaining that they would have been better able to
assess the situation if China had accepted its competences.51 In 2008, the Chinese
government explicitly invoked its sovereignty in response.52
Independent monitoring and fact-finding

In addition to calls for China to accept optional procedures, treaty bodies have at
times lamented the absence of independent external monitoring and supervision
and have called on China to implement them, or even to accede to international
48 See, eg, Summary Record of the 300th Meeting: China, UN Doc. CRC/C/SR.300 (1996), paras
65–6; Summary Record of the 423rd Meeting, UN Doc. CAT/C/SR.423/Add.1 (2000),
para. 4.
49 Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 51st sess.,
Supp. No. 18, UN Doc. A/51/18 (1996), para. 393; Summary Record of the 1164th Meeting:
China, op. cit. (note 40), para. 45; Concluding Observations of the Committee on the Elimination
of Racial Discrimination: China (including Hong Kong and Macau Special Administrative
Regions), UN Doc. CERD/C/CHN/CO/10-13 (2009), para. 37; Report of the Committee on
the Rights of the Child, UN GAOR, 53rd sess., Supp. No. 41, UN Doc. A/53/41 (1998), para.
117; Summary Record of the 1062nd Meeting, op. cit. (note 40), paras 16, 20, 27.
50 Summary Record of the 1469th Meeting: China, UN Doc. CERD/C/SR.1469 (2001), para. 2.
51 Report of the Committee Against Torture, UN GAOR, 48th sess., Supp. No. 44, UN Doc.
A/48/44 (1993), para. 421; Summary Record of the Third Part (Public) of the 143rd Meeting,
UN Doc. CAT/C/SR.143/Add.2 (1993), para. 37; Summary Record of the 251st Meeting:
China, UN Doc. CAT/C/SR.251 (1996), paras 9, 17; Summary Record of the Public Part of the
254th Meeting: China, Croatia, UN Doc. CAT/C/SR.254 (1996), para. 2; Report of the
Committee Against Torture, UN GAOR, 51st sess., Supp. No. 44, UN Doc. A/51/44 (1996),
paras 148, 150(h); Summary Record of the 416th Meeting, UN Doc. CAT/C/SR.416 (2000),
para. 42; Summary Record of the 419th Meeting, op. cit. (note 38); Summary Record of the
423rd Meeting, op. cit. (note 48), para. 3; Compte rendu analytique de la 844e séance, UN Doc.
CAT/C/SR.844 (2009), paras 28–9, 34.
52 Written Replies by the Government of the People’s Republic of China to the List of Issues
(CAT/C/CHN/4) to be taken up in connection with the Consideration of the Fourth Periodic
Report of China (CAT/C/CHN/4), UN Doc. CAT/C/CHN/Q/4/Add.1 (2008), para. 40
(‘CAT Written Replies 2008’).
human rights treaties related to their mandates, or join institutions such as the
International Criminal Court.53 The Chinese government has always considered
these concerns groundless or even a product of ‘anti-China bias’. It denied alleged
rejection of access to representatives of the International Committee of the Red
Cross (‘ICRC’) in prisons.54 It resisted calls for international fact-finding missions
to verify the well-being of the Panchen Lama designated by the Dalai Lama.55
The discussion in this and the previous section shows that China wishes to retain
firm control of the application, implementation and interpretation of its inter-
national human rights obligations and will invoke its sovereignty and territorial
integrity to avoid too much international scrutiny, by not allowing intrusive forms
of monitoring or submitting to jurisdictions that can issue legally binding views. As

a result, it remains the final arbiter of its own human rights record and compliance
with human rights treaties. However in recent years China has accepted visits by
the special procedures of the Human Rights Council, most notably the Special
Rapporteur on Torture and the Working Group on Arbitrary Detention, although
it draws a clear procedural line between these mechanisms and the treaty bodies
even when their mandates overlap in substance. Since this requires the consent of
the state for each visit, it can be seen as a relatively safe way for the Chinese
government to allow for more intrusive monitoring.
Criticism of NGO sources and living in alternate realities:

Tibet, Xinjiang and the Falun Gong
The last issue mentioned in the previous section, the fate of the Dalai Lama-
designated successor of the Panchen Lama, illustrates another salient feature of
China’s practice before the human rights treaty bodies: the existence of two
contradictory narratives with regard to China’s human rights record on politically
sensitive and controversial issues. On these issues, one narrative is supplied by the
Chinese government and the other by NGO reports, to which members of the
treaty bodies are free to refer. It is the clash of these two narratives which has led
to the greatest tensions between members of the treaty monitoring bodies and
Chinese delegations, mostly in the 1990s but to an extent also in the last decade.
The issues in question are the Tiananmen incident, the rights of minorities, in
particular in Tibet and Xinjiang, and the rights of practitioners of Falun Gong.
The term ‘constructive dialogue’ is usually more than a diplomatic nicety when the
53 Summary Record of the 1062nd Meeting, op. cit. (note 40), paras 16, 20, 27; Compte rendu analytique
de la 844e séance, op. cit. (note 51), para. 41.
54 Summary Record of the 251st Meeting: China, op. cit. (note 51), para. 25; Summary Record of
the Public Part of the 252nd Meeting: China, op. cit. (note 40), paras 12, 17, 19.
55 Summary Record of the 299th Meeting: China, UN Doc. CRC/C/SR.299 (1996), para. 39;
Summary Record of the 300th Meeting: China, op. cit. (note 48), para. 13; Summary Record
of the 1064th Meeting, UN Doc. CRC/C/SR. 1064 (2005), paras 11, 13–14; Compte rendu
analytique de la 844e séance, op. cit. (note 51), para. 63; CAT Written Replies 2008, op. cit. (note
52), para. 2.
topics discussed are not politically charged and Chinese delegations are open to
criticism. Yet when confronted with the issues and allegations committee members
derive from NGO reports, Chinese delegates respond in accordance with pre-
defined official discourses. They dismiss the allegations without further argumen-
tation as ‘totally groundless’ and inevitably reject the sources as ‘one-sided’, ‘not
objective’ and ‘biased’. The Chinese government claims that it is ‘a victim of lies
and disinformation’ and that ‘the true situation’ is rarely reported.56 The fact that
the Chinese government has not allowed for any kind of international monitoring,
beyond the reporting procedure and the occasional visit of a special rapporteur of
the Human Rights Council, makes both the official Chinese narrative and the
NGO narratives unverifiable.57 Of course, this essential shortcoming of the

reporting procedure is a reason why other procedures exist in the first place.
Tensions have manifested themselves, to various extents, within every treaty
body. The records of China’s appearances give the impression that the committee
members and the Chinese government live in alternate realities. China describes
in glowing terms all kinds of modernization, education and development pro-
grammes undertaken in minority areas, as well as extensive minority participation
in government.58 This emphasis on modernization, development and harmony also
dominates China’s general human rights discourse, but it is even more pronounced
when combined with the official Chinese position that Tibet was ‘liberated’ from
feudal oppression in 1951,59 and that it has enjoyed full autonomy since 1956 and
any immigration of Han Chinese is not aimed at upsetting the demographic
balance but at providing temporary ‘technical assistance’. Riots and separatist
activities are the work of a handful of law-breakers, illegal and by implication
illegitimate. Democratic political rights are guaranteed, but areas with ethnic self-
rule remain ‘inalienable parts’ of China; to maintain its territorial integrity, those
who aim at ‘splitting the state’ or otherwise to undermine national unity are
criminals who should be punished.60 On the other hand, members of the treaty
bodies, relying on NGO-provided information, ask questions about unrest, rioting,
separatism and, more structurally, allegations of systematic violations of the
freedom of religion, self-determination, widespread torture and destruction of
traditional culture. One member of the CERD even alleged that China used ‘every
imaginable stratagem to wipe out Tibet’s culture and identity’.61
China contests such allegations and claims to be respecting traditional religion
and culture. With regard to the aforementioned issue of the succession of the
56 Summary Record of the 299th Meeting: China, op. cit. (note 55), paras 8–10.
57 See also Peerenboom, op. cit. (note 9), pp. 164–5.
58 Seventh Periodic Reports of States Parties due in 1995: The People’s Republic of China, UN
Doc. CERD/C/275/Add.2 (1996).
59 Summary Record of the 1942nd Meeting, UN Doc. CERD/C/SR.1942 (2009), para. 39; Compte
rendu analytique de la 1943e séance, UN Doc. CERD/C/SR.1943 (2009), para. 8.
60 Replies by the Government of the People’s Republic of China, op. cit. (note 46), para. 4.
61 Summary Record of the 1163rd Meeting: China, India, UN Doc. CERD/C/SR.1163 (1996),
paras 17, 60.
Panchen Lama, for example, the Chinese government presented its serious
involvement in the process as proof of its protection of and respect for the religious
beliefs of minorities before the CERD,62 which questioned this for exactly the
opposite reasons.63 Recent exchanges between the CERD and China on minority
issues have been less confrontational. Committee members continued to inquire
about serious human rights violations reported by various NGOs against the
Uyghur population in Xinjiang, religious freedom in Tibet, and the contrast
between China’s report, which focused on legislation, and the more pragmatic and
specific approaches of NGOs, which pointed at the discrepancy between the law
and the actual situation. Yet one CERD member, contrary to his colleague from
the earlier decade, stated that ‘China was certainly not pursuing an obvious policy
of repression’ in Tibet.64
Discussions on the unrest in Tibet in 2008 and Xinjiang in 2009 before the CAT
and the CERD went along the same lines. The Chinese government went some
way towards answering very detailed questions asked by CAT members, but mainly
disputed their reading of the facts.65 Before the CERD, it emphasized China’s
‘splendid achievements’ in legislative and other efforts in the area of development.
It gave a consolidated official account of the events, blaming them on separatists
from abroad who wished to promote ethnic hatred, ‘disrupting harmonious
development in ethnic minority areas and undermining national unity and
territorial integrity’.66
Finally, two entrenched opposing positions also exist with regard to the spiritual
movement known as the Falun Gong, which first appeared on the agenda in 2000.
The Chinese government presents it as an evil cult, which practices mind control,
endangers society and has allegedly caused more than 1,500 deaths. It denies
allegations that numerous arrests related to the movement have been made and
that torture is extensively applied to its followers, but the treaty bodies are not con-
vinced.67 When the CESCR inquired about the enjoyment of the right to freedom
of religion as a dimension of cultural rights, China provided detailed answers on
the five major religions in China – Buddhism, Taoism, Islam, Catholicism and
Protestantism. Falun Gong, although mentioned by the committee, was not
described as a religion.68
62 Seventh Periodic Reports of States Parties: China, op. cit. (note 58), para. 69.
63 Summary Record of the 1163rd Meeting: China, India, op. cit. (note 61), para. 56.
64 Summary Record of the 1468th Meeting, UN Doc. CERD/C/SR.1468 (2001), paras 47, 49, 60.
65 CAT Written Replies 2008, op. cit. (note 52), para. 2.
66 Thirteenth Periodic Reports of States Parties due in 2007: China, UN Doc. CERD/C/CHN/10-
13 (2009); Summary Record of the 1942nd Meeting, op. cit. (note 59), para. 15.
67 Summary Record of the 419th Meeting, op. cit. (note 38); Compte rendu analytique de la 846e séance,
op. cit. (note 36), para. 40.
68 Replies by the Government of the People’s Republic of China, op. cit. (note 60), para. 46.
China and the Committee against Torture
China’s encounter with the CAT reflects many of the points made before, but
confrontation has remained. In its initial CAT report in 1989, China still felt free
to conclude, sweepingly, that all its legal and other measures were ‘wholly in
compliance’ with the CAT ‘and have yielded marked results’, even though it would
continue to ‘adopt resolute measures to prevent and stamp out torture and other
cruel, inhuman or degrading treatment’. 69
However in its most recent concluding observations, almost 20 years later, the
CAT did not mince words:
[T]he Committee remains deeply concerned about the continued allegations,

corroborated by numerous Chinese legal sources, of routine and widespread
use of torture and ill-treatment of suspects in police custody, especially to
extract confessions or information to be used in criminal proceedings.70
It urgently called on China to take immediate steps to prevent torture ‘throughout

the country’ and to ‘immediately abolish all forms of administrative detention,
including “re-education through labour”’. Its other recommendations did not seem
to indicate much doubt on the credibility of serious allegations levelled by NGOs.71
On the one hand, the contrast between the two positions demonstrates how
much distance there remains between the committee and the Chinese government.
On the other hand, this gap has narrowed in the last 20 years. China underwent
a process of fast institutional learning. Its first report contained little information,
mainly reciting Chinese legislation, leading the committee to request an additional
report (as it did in those years with a number of other countries).72 However, China
responded well with a much more detailed supplementary report, albeit two years
after it was due, enabling closer scrutiny.73
One observer describes China’s presentation of its supplementary report as the
‘first time the Chinese authorities had recognized that the Committee had the right
to question them and that they had the obligation to respond’.74 In general, during
this second encounter China showed the importance it attached to a good
relationship with the committee by sending a high-level delegation and showing a
large degree of procedural compliance, even if substantive compliance was more
problematic.75 Reporting thus became less of a purely diplomatic exercise, and
69 Initial Report of States Parties due in 1988: China, UN Doc. CAT/C/7/Add.5 (1989), para. 55.
70 Concluding Observations of the Committee against Torture, UN Doc. CAT/C/CHN/CO/4
(2008), para. 11.
71 Ibid, paras 11, 13, 41.
72 Report of the Committee Against Torture, UN GAOR, 45th sess., Supp. No. 44, UN Doc.
A/45/44 (1990), para. 500; M. Nowak and E. McArthur, The United Nations Convention Against
Torture: A Commentary, Oxford: Oxford University Press, 2008, pp. 626, 639–40.
73 CAT Supplementary Report, op. cit. (note 13).
74 Kent (1999), op. cit. (note 7), p. 97.
75 Ibid, pp. 97–100.
China had to account more for the way it acquitted itself of its obligations than
initially expected.
However, problems remained in the following years. The Chinese government
was on the defensive during both its subsequent appearances before the committee,
especially when questioned about NGO allegations on torture in Tibet and later
the treatment of Uyghurs and Falun Gong practitioners, prompting exchanges of
the nature described above. CAT members called China’s response ‘hardly
enlightening’ and pointed to China’s special responsibilities with regard to respect
for international instruments as a permanent member of the Security Council.76
Chinese representatives deplored ‘misconceptions’ about China which were
‘widespread and deep-rooted’, and any conclusions by the committee based on this
‘misinformation’ could not be ‘considered objective’.77 Throughout these appear-
ances, China’s practice of the ‘re-education through labour’ programme was also
a continuous source of controversy.78 China’s attitude became more positive
towards questions that were not politically sensitive, such as those regarding the
coerced extraction of confessions by law enforcement officials, and it answered
these in detail, acknowledging the problems.79 Still, neither side refused to
compromise and, after China’s third report, the government suggested that the
best way for the committee to make an ‘objective’ judgment was to visit China and
meet law enforcement officials and scholars in the country.80
China’s most recent appearance before the CAT was at least as confrontational
as those that had preceded it. While its report again improved in terms of statistical
information, 81 the government drew clear lines when answering questions from
the committee. It even expressed regret about an allegation that ‘an array of
mutually reinforcing conditions’ contributed to torture and ill-treatment’s ‘con-
tinued pervasiveness in the criminal justice system’, dismissing it as based on
‘unproven so-called “information”’ and ‘not acceptable to the Chinese side’.82
There also seemed to be a slight retreat in the Chinese government’s acknow-
ledgement of systemic problems in the Chinese criminal justice system, which were
described as isolated cases.83
Possibly partly due to the more systematic questioning that has resulted from
the new working methods of the CAT,84 the exchange between the committee and
76 Summary Record of the 251st Meeting: China, op. cit. (note 51), paras 9, 17, 28.
77 Summary Record of the Public Part of the 252nd Meeting: China, op. cit. (note 40), paras 2, 4,
17; Summary Record of the Public Part of the 254th Meeting: China, Croatia, op. cit. (note 51),
paras 2–3.
78 Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Third
Periodic Reports of States Parties due in 1997, UN Doc. CAT/C/39/Add.2 (2000); Summary
Record of the 416th Meeting, op. cit. (note 51), paras 12, 24, 31, 35.
79 Summary Record of the 419th Meeting, op. cit. (note 38).
80 Summary Record of the 423rd Meeting, op. cit. (note 48), para. 4.
81 Fourth Periodic Reports of States Parties due in 2004: China, CAT, UN Doc. CAT/C/CHN/4
(2007).
82 CAT Written Replies 2008, op. cit. (note 52), para. 2.
83 Ibid.
84 Nowak and McArthur, op. cit. (note 72), p. 644.
the Chinese government has also revealed disagreements on substance: the
government is unwilling to accept that enforced disappearance, human trafficking
and sexual exploitation, domestic violence, and work conditions in factories came
within the scope of the CAT, showing that China does not automatically accept
the authority of the committee to interpret the convention.85 Moreover, the Chinese
government emphasized procedure over substance by objecting to questions based
on cases originally raised by the Special Rapporteur on Torture, as a mechanism
not established by the CAT, although it answered them ‘in the spirit of
cooperation’.86
The Chinese position, taken in its exchange with the committee, that the
eradication of torture is a continuing effort, suggests that the government even

considers the obligation to prevent torture subject to progressive realization. This
prompted committee member Felice Gaer to point out the difference between
aspirational obligations as laid down in treaties like the ICESCR and the direct
obligations of the CAT.87
In general, the committee members seemed to lose their patience and pointed
out that China was appearing for the fourth time, had been a party to the
Convention for almost 20 years, and the questions on the list of issues were largely
the same as before. A lot of information requested was nowhere to be found,
fundamental questions remained unanswered, and certain problems raised by the
committee were just swept aside as groundless or outside the committee’s mandate.
The stand-off between the committee and the Chinese government thus remained
intact, with China holding firm and explicitly referring to its sovereignty. The
committee was left to express regret that the Chinese government mainly spoke in
generalities and provided insufficient details, both on specific cases and in terms of
statistics.88
Concluding remarks
The quality of China’s reports to treaty bodies has improved in the course of the
last two decades. China shows a high degree of procedural compliance and has
come a long way from merely reciting all the legislative measures taken in the period
under discussion and claiming ‘full compliance’. China provides comprehensive
answers in reply to questions asked by the treaty bodies in response to its reports.
It sends high-level delegations to the treaty body sessions, and there is plenty of
reason to believe that the reciprocal praise of the ‘dialogue’ which has taken place
after every session is not a mere expression of diplomatic politeness.
Unfortunately, the more problematic sides of China’s engagement with UN
treaty bodies are fairly predictable, and there are clear fault lines. Although most
85 Compte rendu analytique de la 844e séance, op. cit. (note 51), para. 63; CAT Written Replies 2008,
op. cit. (note 52), paras 7, 35, 38.
86 Ibid, para. 21.
87 Observation by CAT committee member Felice Gaer in Compte rendu analytique de la 846e séance,
UN Doc. CAT/C/SR.846 (2009), para. 36.
88 Ibid, paras 28–9, 34, 36, 40.
treaty bodies now avoid crossing these lines when questioning the Chinese dele-
gation, this is clearly not the case, and indeed impossible with the CAT. The
defensive responses of China stand out because when discussing less politicized
issues, China tends to be far more forthcoming and open to criticism. Although
China’s lack of openness on the more sensitive issues may eventually lead to more
conflict along what has been seen with the CAT, for the time being antagonism
and confrontation with other bodies have diminished, even if they express serious
concerns in their concluding observations.
At present, state reporting remains the only form of international monitoring
which China has accepted. Based on its consistent rejection of other forms of
monitoring and supervision, it seems unlikely that China will, in the foreseeable
future, actively cooperate in setting up a regional monitoring mechanism. Its
acceptance and support of norms and serious engagement with the treaty bodies,
however, indicates that it will not have a negative attitude towards other states
establishing such an institution as long as it depends on the consent of states to take
action. Its state reporting practice indicates slow but steady progress towards better
understanding and implementation of the norms in the human rights treaties.
However, its narrow reading of its obligations under those treaties and its insistence
to place all of these within the paradigm of progressive realization is a cause for
concern. In light of the great importance that the Chinese government obviously
attaches to its reputation as a member of the international community, it may one
day accept more institutionalized limitations to its sovereignty. It may, however,
take considerable time before it considers itself ready and is prepared to let go of
the defensive discourse that still dominates its official position.
With a view to the establishment of a regional human rights institution in Asia-
Pacific, based on its treaty body practice China may be a relatively neutral factor.
It will not be an active participant in the establishment of such an institution, nor
does it seem likely to join one. However, other states in the region should not feel
inhibited in establishing such an institution. Non-participation but nominal support
for its normative aspirations would be the logical attitude to expect from China
based on its record so far.
In the meantime, the true impact of human rights on China is more properly
seen in terms of the normative impact that they have within China and the
development of civil society in the country itself. The appeal of norms laid down
in human rights treaties disseminated in China and promoted by the government,
and an increasing willingness on the part of Chinese citizens to invoke them in
court or elsewhere, may contribute more to compliance than even the strongest
form of international monitoring institutions.89
89 See also M. Wan, ‘Human Rights Lawmaking in China: Domestic Politics, International Law,
and International Politics’, Human Rights Quarterly 29, 2007, p. 727.
Part II
evolving mechanisms
Regional institutions:
6 Resistance to regional
human rights cooperation
in the Asia-Pacific:
demythologizing regional
exceptionalism by learning
from the Americas, Europe
and Africa
Ben Saul, Jacqueline Mowbray and Irene Baghoomians
Introduction
While regional mechanisms for human rights protection were established in Europe
in 1950,1 the Americas from 1959,2 Africa from 19813 and among Arab states from
2004,4 the Asia-Pacific has long been the last frontier of regional cooperation.5
1 The Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS
221 (entered into force 3 September 1953) (‘ECHR’), was adopted by the Council of Europe in
1950 and established the European Court of Human Rights and the European Commission on
Human Rights. The Commission was abolished and the Court restructured in 1998.
2 The American Declaration of the Rights and Duties of Man was adopted by the Organization of
American States (‘OAS’) on 2 May 1948 (‘American Declaration of the Rights of Man’); the Inter-
American Commission on Human Rights was established by the OAS in 1959; the American
Convention on Human Rights, 1144 UNTS 123 (entered into force 18 July 1978) (‘American
Convention on Human Rights’); and the Inter-American Court of Human Rights was established
in 1979 (following entry into force of the American Convention on Human Rights). See, generally,
D. Harris and S. Livingstone (eds), The Inter-American System of Human Rights, Oxford: Clarendon
Press, 1988.
3 The African Charter on Human and Peoples’ Rights, 1520 UNTS 217 (entered into force 21
October 1986) (‘African Charter on Human and Peoples’ Rights’), was followed by the
establishment of the African Commission on Human and Peoples’ Rights in 1987 and the African
Court of Human and Peoples’ Rights in 2004.
4 The Arab Charter on Human Rights, International Human Rights Reports 12, 2005, p. 893 (entered
into force 15 March 2008) (‘Arab Charter on Human Rights’), was adopted by the Council of the
League of Arab States in 2004 and entered into force in 2008, and provides for the establishment
of an independent Arab Human Rights Committee, which will consider states’ reports but cannot
consider individual complaints. See M. Rishmawi, ‘The Arab Charter on Human Rights and the
League of Arab States: An Update’, Human Rights Law Review 10, 2010, p. 169.
5 For a recent survey of developments in the Asia-Pacific region, see A. Durbach, C. Renshaw and
A. Byrnes, ‘“A Tongue But No Teeth?”: The Emergence of a Regional Human Rights Mechanism
in the Asia Pacific Region’, Sydney Law Review 31, 2009, p. 211.
Despite calls by Asian leaders in 1993 to ‘explore the possibilities of establishing
regional arrangements for the promotion and protection of human rights in Asia’,6
the Association of Southeast Asian Nations (‘ASEAN’) only committed to creating
a human rights body in its Charter of November 2007 and established the ASEAN
Intergovernmental Commission on Human Rights (‘AICHR’) in October 2009.7
Despite that significant step, the AICHR is entrusted with far fewer powers than
the regional mechanisms in the Americas, Europe and Africa. Beyond the limited
club of South-East Asian states, there is no sub-regional mechanism for the Pacific,
North and East Asia, or South Asia. Other inter-governmental networks in the
region have devoted little attention to human rights, whether through the South
Asian Association for Regional Cooperation (‘SAARC’),8 Asia-Pacific Economic

Cooperation (‘APEC’), Pacific Islands Forum (‘PIF’) or Shanghai Cooperation
Organisation (‘SCO’).
The purpose of this chapter is to interrogate common explanations for the Asia-
Pacific’s reluctance to institutionalize regional protection of human rights. Such
explanations typically include that the region is too diverse to subscribe to uniform
standards; contrarily, that ‘Asian values’ differ from western ‘international human
rights standards’; that principles of sovereignty and non-intervention preclude
external scrutiny; and that Asians have a cultural preference for conciliation over
adjudication, ruling out quasi-judicial methods for protecting human rights. This
chapter examines these common explanations by drawing upon the experiences
of establishing regional mechanisms in the Americas, Europe and Africa.
The comparison with other geographical regions contextualizes the debate in
the Asia-Pacific and shows that claims about the uniqueness of the Asian experience
are often exaggerated or inaccurate. Asian exceptionalism on human rights ques-
tions is often more fruitfully explained as an expression of strategic policy choices
by Asian governments to avoid strengthening human rights protections, rather than
by any inherent truths about the unsuitability of rights and institutions to Asian
traditions, values, diversity or cultural preferences. Understanding and dissecting
6 Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights,
UN Doc. A/CONF.157/ARSM/8-A/CONF.157/PC/59 (1993) (‘Bangkok Declaration’), para.
26.
7 ASEAN Charter (entered into force 15 December 2008), art. 14, available at: <http://www.
aseansec.org/21069.pdf> (accessed 29 September 2010). See also the Cha-Am Hua Hin
Declaration on the Intergovernmental Commission on Human Rights (2009). ASEAN also created
a Commission on the Promotion and Protection of the Rights of Women and Children: see
Suzannah Linton, ‘ASEAN States, Their Reservations to Human Rights Treaties and the
Proposed ASEAN Commission on Women and Children’, Human Rights Quarterly 30, 2008, p. 436.
See also Chapters 7 and 8 of this book.
8 SAARC has, however, adopted conventions on specific human rights issues such as the trafficking
of women and children and on children’s rights: SAARC Convention on Combating and
Prevention of Trafficking in Women and Children for Prostitution, adopted 5 January 2002,
available at: <http://www.saarc-sec.org/userfiles/conv-traffiking.pdf> (accessed 29 September
2010); SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in
South Asia, adopted 5 January 2002, available at: <http://www.saarc-sec.org/userfiles/conv-
children.pdf> (accessed 29 September 2010).
Resistance to regional human rights cooperation in the Asia-Pacific 109
the reasons for resistance to regional human rights cooperation in the region is
important not only in explaining the past, but in identifying the prospects for the
future strengthening of regional cooperation.
Explaining resistance to regional rights protections in

the Asia-Pacific
There are a variety of conventional explanations for the reluctance of Asian and/or
Pacific countries to embrace regional mechanisms. This section both summarizes
and interrogates those views, with the aim of demythologizing commonly held ideas
about the perceived uniqueness of the Asia-Pacific region when it comes to

prospects and possibilities for stronger human rights protection.
Assertion one: the Asia-Pacific is too diverse to share

common standards
Asia-Pacific countries have often been seen as too diverse and plural to subscribe
to a uniform set of regional standards governing the behaviour of their citizens and
residents. It is, of course, true that there is great social, ethnic, linguistic, cultural
and political diversity among Asia-Pacific countries,9 particularly given that the
region is by far the world’s most populous. Some have even suggested that there is
‘far greater diversity of language, culture, legal systems, religious traditions, and
history in the Asia-Pacific region than in other regions of the world’.10
Yet, it is difficult to accept that the Asia-Pacific is objectively more diverse than
all of the other regions of the world which have felt able to accept regional human
rights standards and mechanisms. There are presently 57 countries in Africa, 53
in the Americas and 52 in Europe, but only 50 in Asia (or only 32 if Middle Eastern
countries are excluded from that group) and a further 24 in Oceania.11 Most
pertinently, it is hard to accept that, for instance, Africa is any less diverse than
Asia at the regional, national and sub-national levels, given the acutely complex
tribal structures, religious diversity and different political ideologies in Africa. Asia
may, indeed, be more homogenous than Africa is in certain respects, since national
boundaries in most of Africa are colonial constructs superimposed upon an under-
lying autochthonous diversity, whereas certain regions of Asia – China, Japan,
Thailand, Vietnam and some others – were less defined by external forces than by
local political entities exercising pre-modern administrative control and which
9 J. Tang, ‘Towards an Alternative Approach to International Human Rights Protection in the

Asia-Pacific Region’, in J. Tang (ed.), Human Rights and International Relations in the Asia-Pacific,
London & New York: Pinter, 1995, p. 185 at p. 191.
10 D. Shelton (ed.), Regional Protection of Human Rights, Oxford: Oxford University Press, 2010,
p. 1055.
11 United Nations Statistics Division, ‘Composition of Macro Geographical (Continental) Regions,
Geographical Sub-regions, and Selected Economic and Other Groupings’, 1 April 2010, available
at: <http://unstats.un.org/unsd/methods/m49/m49regin.htm> (accessed 13 September 2010).
unified large areas. Various sub-regions in Asia also have long, pre-colonial histories
of interaction which suggest at least some degree of shared experiences among
Asian peoples.12
At the same time, it is true that some regions, such as Europe and the Americas,
are more homogeneous than Asia in certain characteristics, such as the widespread
acceptance of democratic political systems, which tends to correlate with human
rights values. But that was not always so, and is, indeed, a relatively recent phenom-
enon. Totalitarianism, fascism and communism are as much a part of recent
European history as liberal democracy; military dictatorships ruled in Spain,
Portugal and Greece as recently as the 1970s; genocidal wars gripped the Balkans
in the 1990s; and both Russia and Turkey remain plagued by periodic internal
armed conflicts. In fact, as the Council of Europe enlarged from its initial 10 member
states to its current 47, the scholarly literature has emphasized the diversity amongst
the states participating in the European human rights system. Thus the current
membership of the Council of Europe covers ‘a land mass stretching from Iceland
to Vladivostok’13 and ‘displays an unprecedented and formidable diversity’.14
The dominant narrative of the creation of the European human rights system
suggests that the system was a more or less spontaneous and consensus-based
response to the horrors of the Second World War and the threat of communism
in Eastern Europe by ‘a club of largely like-minded Western European countries
which share much of their legal and political culture and traditions’.15 Yet this
narrative is incorrect, or at least incomplete. In fact, there was considerable
disagreement and diversity of views among states negotiating the European
Convention on Human Rights (‘ECHR’) system, concerning both its nature and
the rights to be protected by it.
To give some examples, a number of European states argued that human rights
should be expressed merely in terms of ‘general principles’; others, including the
United Kingdom, argued against rights of individual petition and the establishment
of a judicial body.16 The narrow range of rights initially protected by the ECHR
reflects the difficulties in securing consensus among different states on the scope
and content of rights: the ECHR thus focused only ‘on the most fundamental
violations of human rights, recognising that they should command instant and
unconditional outrage from all people, regardless of their cultural and political
traditions’.17 As the European system strengthened over time,18 different techniques
12 Tang, op. cit. (note 9), p. 193.

13 S. Greer, ‘What’s Wrong with the European Convention on Human Rights?’, Human Rights
Quarterly 30, 2008, p. 680 at pp. 680–1.
14 W. Sadurski, ‘Partnering with Strasbourg: Constitutionalization of the European Court of Human
Rights, the Accession of Central and Eastern European States to the Council of Europe, and the
Idea of Pilot Judgments’, Human Rights Law Review 9, 2009, p. 398 at p. 400.
15 Ibid.
16 See generally E. Wicks, ‘The United Kingdom Government’s Perceptions of the European
Convention on Human Rights at the Time of Entry’, Public Law, 2000, p. 438 at pp. 439–40.
17 Sadurski, op. cit. (note 14), pp. 406–7. See further below.
18 See further below.
for managing diversity have come into play. Most prominently, the European
Court of Human Rights has developed the ‘margin of appreciation’ doctrine, by
which a degree of deference is accorded to ‘better placed’ national authorities in
decisions about restricting rights to secure other public interests.19 The central point
is that the European human rights system did not spring fully-formed from
homogeneity and consensus, but rather represents a slow evolution of consensus
on human rights from the starting point of a diversity of views.
At the same time, not only is diversity not fatal to shared values, but the experi-
ence of diversity may actually demonstrate the need for them. Human rights
consciousness in Europe largely grew out of the excesses and failures of authori-
tarian political systems. Despite the distinctly European intellectual legacy of

Enlightenment thought, in practice political and cultural diversity has been as much
a part of European history as Asian history. Paradoxically, it is the collision of
extreme manifestations of diversity – ethnic violence, racial supremacy, ideological
competition – that propelled the ultimate recognition of shared human values in
Europe and a commitment to their regional protection, even if there was dis-
agreement about how to do it. Given the extraordinary level of violence in the Asia-
Pacific during the Second World War, it is in some ways puzzling that human rights
did not catch on there too (with the notable exceptions of India, US-occupied Japan
and the Philippines).
Claims about the irreconcilable diversity of the Asia-Pacific region may also mask
strategies of national political control. If diversity is thought to preclude a commit-
ment to shared rights-based values at the regional level, then it is hard to see why
that argument would not equally preclude action at the national level. India, for
instance, has many hundreds of minority groups (including ‘tribal’ Adivasis), yet
one does not hear the Indian government objecting that India is too diverse to be
subject to a single system of Indian law, including its constitutional rights pro-
tections. Just as different social groups within a country are capable of sharing
minimum rights-based standards, so too is it equally possible for diverse national
societies to be shaped by shared regional standards – particularly those based on
the international human rights agreements which many countries in the Asia-
Pacific have formally endorsed.
Further, if safeguarding diversity and pluralism is a genuine concern in the Asia-
Pacific, then a regional human rights system could strengthen rather than weaken
pluralism. Protecting cultural and minority practices, safeguarding languages and
preserving the self-determination of peoples are all group-oriented human rights
which a regional system could readily endorse and institutionalize in the Asia-
Pacific. The European and American experiences, too, suggest that it would be
possible to establish regional systems which initially protected only these rights, but
which could subsequently evolve to protect other categories of rights as well.
19 See further below.

Assertion two: ‘Asian values’ are incompatible with
‘western’ international standards
Paradoxically, a second explanation for the reluctance of Asian countries to pursue
regional human rights cooperation is not that Asia is too diverse, but that it shares
common ‘Asian values’ which are at odds with supposedly ‘western’ human rights
conceptions (and are thus perceived as a modern extension of imperialism).20 In
particular, it is suggested that ‘Asians’ place the collective before the individual and
prefer to prioritize economic development and political stability over civil and
political rights.21 Such an approach is exemplified in the Bangkok Declaration of
1993, which recognizes:
that while human rights are universal in nature, they must be considered in
the context of a dynamic and evolving process of international norm-setting,
bearing in mind the significance of national and regional particularities and
various historical, cultural and religious backgrounds.22
A version of that statement is repeated in the AICHR’s Terms of Reference.23 The

‘Asian values’ (and universalism/relativism) debate is well trodden and is only
discussed here in the context of its implications for regional institution building.24
The most powerful and immediate criticism of the ‘Asian values’ argument is
that it essentializes ‘Asian identity’, failing to take account of diversity within and
among the peoples of the region. However, even if there were something anthropo-
logically sound about essentializing ‘Asian values’ (and conversely, constructing
them in opposition to supposedly uniform ‘western’ values and traditions),25 an
acceptance of the notion does not so much rule out a regional human rights
20 M. Freeman, ‘Human Rights: Asia and the West’, in Tang (ed.), op. cit. (note 9), p. 13 at p. 14.
21 Y. Ghai, ‘Asian Perspectives on Human Rights’, in Tang (ed.), op. cit. (note 9), p. 54 at p. 54; J.
Chan, ‘The Asian Challenge to Universal Human Rights: A Philosophical Appraisal’, in Tang
(ed.), op. cit. (note 9), p. 25 at p. 35; M. Caballero-Anthony, ‘Human Rights, Economic Change
and Political Development: A Southeast Asian Perspective’, in Tang (ed.), op. cit. (note 9), p. 39.
22 Bangkok Declaration, op. cit. (note 6), para. 8.
23 Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, 2009, para.
1.4, available at: <http://www.aseansec.org/publications/TOR-of-AICHR.pdf> (accessed 12
March 2010).
24 See further, eg, R. Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debates
about “Values in Asia”’, in Shelton (ed.), op. cit. (note 10), p. 1056; Freeman, op. cit. (note 20);
Ghai, op. cit. (note 21); Chan, op. cit. (note 21); Caballero-Anthony, op. cit. (note 21); D. Kelly
and A. Reid (eds), Asian Freedoms: The Idea of Freedom in East and Southeast Asia, Cambridge:
Cambridge University Press, 1999; A. Sharma, Are Human Rights Western? A Contribution to the Dialogue
of Civilisations, New Delhi: Oxford University Press, 2006; A. Sen, ‘Human Rights and Asian
Values: What Lee Kuan Yew and Li Peng Don’t Understand about Asia’, The New Republic 217,
1997, p. 33; J. Bauer and D. Bell (eds), The East Asian Challenge for Human Rights, Cambridge and
New York: Cambridge University Press, 1999; K. Rana, Asian Diplomacy: The Foreign Ministries of
China, India, Japan, Singapore and Thailand, New Delhi: Oxford University Press, 2007, ch. 7.
25 Ghai observes that tensions between liberty and community equally feature in western societies
and thought: Ghai, op. cit. (note 21), p. 61.
mechanism but rather affects its institutional design. Asian states have committed
themselves to the universality of human rights, but argued for specificity in their
application, such that ‘Asian values’ claims – much weakened since the Asian
economic crisis of 1997–9826 – are not fatal to a regional mechanism but rather
bear upon the content of rights protected, whether ‘duties’ are also emphasized,
and the method (for instance, consensual rather than adversarial) by which a
regional mechanism would operate.
The formation of the African human rights system is instructive. In the preamble
of the African Charter, African countries take into consideration ‘the virtues of their
historical tradition and the values of African civilization which should inspire and
characterize their reflection on the concept of human and peoples’ rights’. Article
61 of the Charter allows the Commission to consider, ‘as subsidiary measures to
determine the principles of law’, among other things, ‘African practices consistent
with international norms on human and peoples’ rights, customs generally accepted
as law, [and] general principles of law recognized by African states’.
Yet, the drafters of the Charter were careful to ensure that ‘African specificities
in dealing with rights’ did not ‘deviate from the international norms’ in the global
human rights treaties ratified by African states.27 The preamble thus highlights ‘the
importance traditionally attached to these rights and freedoms in Africa’, and others
have written on the traditional importance of various freedoms, such as free
expression and opinion,28 in certain societies in Africa, including in highly variable
pre-colonial cultures, societies, philosophies and religions.29 In Asia, too, there has
been considerable scholarly attention to the antecedents of human rights in pre-
modern Asian societies, including notions of political freedom.30
The idea of ‘African values’ in the African Charter is not presented as incom-
patible with human rights,31 but rather as a particular expression of human rights
in a regional context. Such expression finds form in the African Charter itself
through the inclusion of group or people’s rights (to self-determination, develop-
ment, peace and security and the environment);32 the articulation of concomitant
26 I. Neary, Human Rights in Japan, South Korea and Taiwan, London: Routledge, 2002, p. 5.
27 B. Okere, ‘The Protection of Human Rights in Africa and the African Charter on Human and
People’s Rights: A Comparative Analysis with the European and American Systems’, Human Rights
Quarterly 6, 1984, p. 141 at p. 152, citing the drafting record.
28 Ibid, p. 146.
29 N. Busia, ‘The Status of Human Rights in Pre-Colonial Africa: Implications for Contemporary
Practices’, in E. McCarthy-Arnolds, D. Penna and D. Sobrepeña, Africa, Human Rights, and the
Global System: The Political Economy of Human Rights in a Changing World, Connecticut: Greenwood
Press, 1994, p. 225.
30 Freeman, op. cit. (note 20), p. 15; Kelly and Reid (eds), op. cit. (note 24); M. Kinhide, quoted in
Neary, op. cit. (note 26), pp. 10–11; I. Tatsuo, ‘Liberal Democracy and Asian Orientalism’, in
Bauer and Bell (eds), op. cit. (note 24), p. 27.
31 For a radical sociological critique of human rights in Africa as an ideology of domination, see
I. Shivji, The Concepts of Human Rights in Africa, Dakar: Codesria Books, 1989.
32 See, generally, R. Murray and S. Wheatley, ‘Groups and the African Charter on Human and
Peoples’ Rights’, Human Rights Quarterly 25, 2003, p. 213; R. D’Sa, ‘Human and Peoples’ Rights:
duties (including a duty on the individual ‘to preserve and strengthen positive
African cultural values in his relations with other members of the society’);33 and
(at its inception) the creation of a regional commission rather than a quasi-judicial
body. Of greater concern, however, is its selective preambular reference to
eliminating Zionism (a sentiment shared by the Arab Charter).
In practice, the application of the African Charter has generally complemented,
rather than competed with or undermined, the scope of internationally protected
human rights, notwithstanding the unusual inclusion of extensive moral ‘duties’.34
In the Americas too, the inclusion of extensive duties has generally not prejudiced
rights protection and the Inter-American system has generally avoided any attempt
to claim or develop distinctive ‘American values’ which might reduce or limit inter-
national human rights standards.35 In the Arab Charter, however, some regional
particularities potentially diminish international standards, such as concessions to
Shari’a law in the area of women’s rights.36
The African experience suggests that ideas about the particularity of African
values perform more of an expressive political function – generating communal
solidarity and pan-African identity – than deliberately watering down or contesting
international standards. Given the sheer diversity of African peoples, the continent-
wide expression of common ‘African values’ is just as anthropologically suspect as
assertions of ‘Asian values’. Yet, whether social reality corresponds with official
or political claims about it is not the only thing that matters, for regions – just
as nations – are, up to a point, imagined or socially constructed.37 The various
permutations of pan-African solidarity over time have been partly reactionary
against colonialism, western hegemony, and the liberal economic order, a form of
negative self-definition as much as the construction of a positive collective identity.
Distinctive Features of the African Charter’, Journal of African Law 29, 1985, p. 72; S. Blay,
‘Changing African Perspectives on the Right of Self-Determination in the Wake of the Banjul
Charter on Human and Peoples’ Rights’, Journal of African Law 29, 1985, p. 147.
33 Article 29(7). See, generally, M. Matua, ‘Banjul Charter and the African Cultural Fingerprint:
An Evaluation of the Language of Duties’, Virginia Journal of International Law 35, 1995, 339.
34 Heyns, for instance, observes that the notion of duties in the African Charter has not been used in
a sinister, rights-denying manner, but instead interpreted by the African Commission as a form of
general limitations clause common in other regional and international jurisprudence: C. Heyns,
‘The African Regional Human Rights System: The African Charter’, Pennsylvania State Law Review
108, 2004, p. 679 at p. 692. By contrast, others warn of the risk of abuse of the concept of duties
by African states: see U. Umozurike, ‘The African Charter on Human and Peoples’ Rights’, American
Journal of International Law 77, 1983, p. 902 at p. 911; Shivji, op. cit. (note 31), p. 99. For a critique
of the global ‘human duties’ discourse, see B. Saul, ‘In the Shadow of Human Rights: Human
Duties, Obligations and Responsibilities’, Columbia Human Rights Law Review 32, 2001, p. 565.
35 American Declaration of the Rights and Duties of Man, op. cit. (note 2), arts 29–38 (including
duties towards society, children and parents; to receive instruction, vote, obey the law, serve the
community and nation; concerning social security and welfare; to pay taxes, work and for non-
citizens to refrain from certain political activities).
36 Article 3(3); see Rishmawi, op. cit. (note 4), p. 171.
37 B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, London and New
York: Verso, 1991.
A similar process of construction of identity through the development of a regional
human rights system can be seen in Europe. Granted, the idea of human rights is
generally traced to European Enlightenment thought, so the human rights tradition
was already seen as indigenous to Europe. Yet, in the first half of the twentieth
century, various countries in Europe had fallen under authoritarian or totalitarian
regimes, most notably Nazi Germany, which supported and constructed national
identities through systems based on the systematic denial of human rights, at least
to certain sectors of the population, and forms of chauvinistic cultural nationalism.
Post-war moves to create a united Europe, characterized by ‘the rule of law and
the enjoyment by all persons . . . of human rights and fundamental freedoms’,38
can thus be read as an effort to reclaim an earlier vision of European identity, rooted
in Enlightenment values and championing a cosmopolitan identity over narrower
nationalist ones. It can also be seen as a response to the threat of communism,
which was sweeping Eastern Europe: one of the aims of the ECHR was ‘to protect
states from Communist subversion’.39 Human rights, and the notion of ‘European
identity’ as based on these rights, were therefore deployed for a political purpose.
Over time, participation in the European human rights instruments has extended
from a small number of western European states to now cover the entire land mass
of Europe, with the exception of Belarus, and this development has been associated
with political and other social changes in the region. Even in Europe, then, the
alignment of ‘European values’ with human rights is not natural or self-evident,
but has involved the construction of ‘regional identity’ for political purposes.
The critical question in the process of constructing a regional identity is: who
enjoys the power to imagine and thus to constitute it? Some Asian political leaders
have arrogated to themselves the authority to ‘speak’ exclusively and authoritatively
on behalf of their populations – when in many countries, Asian leaders are not
representative of democratic sentiment, with some not being elected. As Yash Ghai
wrote during Asian values debate in the 1990s:
Perceptions of human rights are also reflective of social and class positions in
society. What conveys an apparent picture of uniform Asian perspective on
human rights is that it is the perspective of a particular group, that of the ruling
elites, which gets international attention. What unites these elites is their notion
of governance and the expediency of their rule. For the most part the political
systems they represent are not open or democratic, and their publicly expressed
views on human rights are an emanation of these systems, of the need to justify
authoritarianism and repression.40
In contrast, other competing Asian voices – minorities, indigenous peoples, the

rising middle class, NGOs, human rights advocates – are often marginalized.41
38 Statute of the Council of Europe, ETS No. 1 (entered into force 3 August 1949), art. 3.
39 C. Ovey and R. White, Jacobs & White’s The European Convention on Human Rights, 4th edn, Oxford:
Oxford University Press, 2006, p. 2.
40 Ghai, op. cit. (note 21), p. 55. See also Freeman, op. cit. (note 20), p. 15.
41 Ghai, op. cit. (note 21), p. 55.
Many of those voices are clamouring for, not against, stronger rights protections,
although they too may be elites of a different sort.42 As others have observed,
‘[s]ervitude and oppression are resented everywhere; Asian peoples do not inhabit
a separate planet. When they themselves appeal to freedom as a universal standard
of political and other values, this can hardly be dismissed as a bourgeois, Western,
hegemonic invention’.43
The Asian state is not, indeed, the community, which is often suppressed by it.44
The articulation of a common ‘ASEAN Identity’ in Chapter XI of the ASEAN
Charter speaks of creating a ‘sense of belonging among its peoples in order to
achieve its shared destiny, goals and values’ (article 35), but in the same breath rules
out diversity and pluralism by imposing the motto ‘One Vision, One Identity, One
Community’ (article 36). Given the undoubted diversity of voices and societies in
the Asia-Pacific region, the distillation of a common set of pan-Asian values or
identity would seem unlikely,45 even if there may be some commonalities of experi-
ence.46 Institutionalization in the Asia-Pacific region, such as through ASEAN, has
historically been ‘interests’ driven rather than grounded in a shared political or
cultural identity.47
For African countries, the commitment to constructing a pan-African identity
found expression, in part, in the articulation of human rights values. The same can
be said of Europe and the Latin American countries. In Asia, however, the
expression of Asian values has taken the form of resistance to rights. The core point
is that the construction of regional values – African, European, American or Asian
– is a deeply political project of imagining identity and bringing it into being
through deliberate political choices, as much as it may relate to any innate or
underlying ‘truth’ about the character of a particular people or region. Further,
cultural identity is dynamic, not static, and capable of change over time. There is
no reason why, for instance, Asian countries cannot embrace regional human rights
mechanisms to combat harmful traditional practices, just as Indian national law
bans sati (widow burning) or many countries prohibit child marriages.
42 Madsen notes that ‘human rights are also part of a global culture mediated by intellectual elites
around the globe’ and representing ‘different political and ideological positions’: S. Madsen, State,
Society and Human Rights in South Asia, New Delhi: Manohar, 1996, p. 186.
43 Kelly and Reid (eds), op. cit. (note 24), p. 9.
44 Ghai, op. cit. (note 21), pp. 61–2.
45 Ibid, p. 54. As Ghai writes, ‘[i]t would be surprising if there were indeed one Asian perspective,
since neither Asian culture nor Asian realities are homogenous throughout the continent’.
46 As others argue: ‘Critics of Orientalism correctly point out that there is no underlying unity, no
Asian essence, shared at a deep level by all cultures from Turkey to Japan. But to assert . . . a total
absence of cross-cutting relationships is contrary to common experience’: Kelly and Reid (eds),
op. cit. (note 24), p. 7. Likewise it is suggested that there exists in Asia ‘a history of religious-cultural
inter-flows, leavened with value systems rooted in local heterogeneity’: Rana, op. cit. (note 24), p.
166.
47 A. Acharya, Regionalism and Multilateralism: Essays on Cooperative Security in the Asia-Pacific, Singapore:
Eastern Universities Press, 2003, ch. 11.
Assertion three: the Asia-Pacific emphasizes
non-interference in national sovereignty
A third explanation for Asia-Pacific resistance to regional human rights cooperation
involves a reaction against the historical experience of European colonialism in the
region. As asserted in the Bangkok Declaration, Asian countries ‘emphasise the
principle of respect for national sovereignty and territorial integrity as well as non-
interference in the internal affairs of States and the non-use of human rights as an
instrument of political pressure’.48 As such, human rights have long been regarded
as ‘internal affairs’ to be dealt with by national governments and not through
external scrutiny. Regional institutions, such as ASEAN, have thus frequently
ignored serious human rights violations in member states. Such ideas still hold
powerful sway in many governments in the region and are a pragmatic constraint
on prospects for greater regional cooperation on human rights.49
Whether such ideas were ever coherent, or remain so, is another question. In
Africa, for instance, the experience of colonialism (and slavery) was a key reason in
favour of Africa’s support for regional human rights protection.50 The human right
of self-determination and the processes of decolonization were central to the UN’s
post-war international order and thus attractive to both liberation movements and
newly independent African states – although not, it must be said, when claims of
‘internal’ self-determination were made against newly independent states inheriting
arbitrarily drawn colonial borders.51 Liberation movements also tended to sub-
ordinate other human rights in the quest to secure the overarching goal of self-
determination, leading to violent excesses and suppression of domestic opposition.52
The discourse of human rights was also instrumentally useful to African states
as a ‘weapon for attacking political opponents’, particularly to criticize Israel’s
occupation of Palestinian territories,53 to condemn apartheid in white South Africa
(and Namibia),54 or to protest against Portuguese colonialism in Mozambique and
Angola. Thus, while African states were protective of their sovereignty,55 and
sometimes exaggerated the importance of non-interference to shield violent regimes
(as in Uganda, Central African Republic and Equatorial Guinea),56 that impulse
48 Bangkok Declaration, op. cit. (note 6), para. 5.

49 For an examination of notions of sovereignty and non-intervention in ASEAN practice, see
Acharya, op. cit. (note 47), ch. 10.
50 Heyns, op. cit. (note 34), p. 670.
51 R. D’Sa, ‘The African Charter on Human and Peoples’ Rights: Problems and Prospects for
Regional Action’, Australian Year Book of International Law 10, 1981, p. 101 at p. 118.
52 On the troubled relationship between liberation movements and human rights in Africa, see
G. Houser, ‘Human Rights and the Liberation Struggle: The Importance of Creative Tension’,
in McCarthy-Arnolds, Penna and Sobrepeña (eds), op. cit. (note 29), p. 11.
53 D’Sa, op. cit. (note 51), p. 104.
55 Ibid, p. 686.
56 Umozurike, op. cit. (note 34), p. 902; U. Umozurike, ‘The African Charter on Human and
Peoples’ Rights: Suggestions for More Effectiveness’, Annual Survey of International and Comparative
Law 13, 2007, p. 179 at p. 182.
was tempered by an appreciation of rights. Even sympathy for the plight of the
Indo-Chinese ‘boat people’ in the 1970s influenced African attitudes, along with
US President Carter’s activist stance on human rights.57
Ironically, many Asian countries benefitted from the rights-based decolonization
agenda of the UN after the Second World War, yet newly independent Asian
governments promptly turned away from extending human rights protections to
their own peoples. Some Asian countries emerged relatively unscathed from
colonialism – such as Thailand and Nepal – while yet others were colonial powers
themselves (such as Japan in China and Southeast Asia, or China in Tibet, or India
in various Himalayan territories). In the deeper past, there were numerous relations
of domination and subordination between many different political entities in pre-

modern Asia. Far from being distinctively ‘Asian’, rigid notions of sovereignty and
non-interference are largely products of post-war modernization and the
appropriation of European-derived notions of territorial statehood.
Contemporary attitudes among Asian governments are also more nuanced than
is sometimes thought. Some robust democracies have made firm commitments to
human rights, even if imperfectly protected (such as Japan, the Philippines, South
Korea, India, Indonesia, Timor and various Pacific Islands); other democracies are
either less stable or less protective of human rights (such as Thailand, Nepal,
Cambodia, Bangladesh, Sri Lanka, Singapore and Malaysia); while yet others are
communist or authoritarian (including China, Laos, Vietnam, Bhutan, Myanmar
and Pakistan). In a new democracy such as Indonesia, the notion of sovereignty in
a once authoritarian, centralized state has undergone radical transformation through
the extensive decentralization of law-making and diffusion of political authority.58
Further, there is a spectrum of views, rather than unity, in the region on issues
such as humanitarian intervention, the responsibility to protect and human
security59 – from outright hostility to agnosticism to moderate enthusiasm – sug-
gesting that ideas about sovereignty and non-intervention are both diverse and
changing. It was a notable development to find some Asian countries becoming
involved in the management of conflicts (such through the Cambodian peace
process and the UN Transitional Authority in Cambodia, or in the International
Force for intervention in Portuguese (East) Timor in 1999).60 Division within
ASEAN over its approach to Myanmar is another example, with increasing
evidence of a hardening of attitudes towards the military dictators.61
57 Umozurike, op. cit. (note 34), p. 904.

58 See, eg, S. Butt, ‘Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in
Indonesia’, Sydney Law Review 32, 2010, p. 177 (noting, however, that decentralization has been
rather chaotic and may undermine both the rule of law and human rights domestically).
59 See, eg, B. Saul, ‘The Dangers of the United Nations’ “New Security Agenda”: Collective and
Regional Security in the Asia-Pacific Region’, Asian Journal of Comparative Law 1, 2006, p. 147.
60 On ASEAN’s supportive role in East Timor from 1999, see J. Haacke, ASEAN’s Diplomatic and
Security Culture: Origins, Development and Prospects, New York: Routledge, 2005, pp. 197–204.
61 L. Jagan, ‘Burma’s FM Gets an “Earful” from ASEAN and Partners’, The Irrawaddy (online), 24
July 2010, available at: <http://www.irrawaddy.org/article.php?art_id=19052> (accessed 13
September 2010).
The increasing distance from the colonial era, the growth of an educated middle
class and increasingly empowered civil societies, greater economic and social
integration across Asia, and the end of the threat of interference during the Cold
War are likely to further challenge old, static notions about sovereignty that
underpin resistance to regional human rights cooperation.62 As one writer notes,
the quiet engagement by ASEAN with civil society on human rights issues since
the mid-1990s suggests that ‘the norm on non-interference is a nuanced norm in
practice’.63
Further, even within regions with a long tradition of human rights protection,
such as Europe, it is questionable whether there has been really much less concern
about sovereignty and non-interference in the field of human rights. Outside the
Council of Europe framework, the treaties creating the European Communities
were ‘virtually silent on the protection of human rights’ and instead focused on
economic and technical cooperation.64 The European Union was thus designed
with a limited competence to intrude in the domestic affairs of member states in
relation to human rights.65 This only changed over time as the European Court of
Justice began to recognize and protect fundamental rights in order to ensure that
Community law would be compatible with the constitutional protections in the
national law of member states.66
Even within the Council of Europe’s human rights system, the jurisdiction of the
European Court of Human Rights and the right of individual petition were
originally optional for states parties to the ECHR, precisely due to concerns about
preserving sovereignty. Further, referral of matters to the European Court was
subject to scrutiny by the Committee of Ministers,67 that is, a committee of
government representatives, suggesting reticence on the part of member states to
relinquish control in favour of a regional body. Enforcement of decisions of the
European Court still remains a matter for the Committee of Ministers.
Further, the relationship between the ECHR scheme and national legal systems
is one of ‘solidarity and subsidiarity’.68 In other words, the rights enshrined in the
Convention are primarily to be protected through national legal systems, rather than
through the ECHR and Court. ‘Solidarity’ refers to the fact that, under article 1
of the ECHR, member states are obliged to ensure that ECHR rights are protected
by their national legal orders: the member states thus act in ‘solidarity’, at the
62 Acharya, op. cit. (note 47), p. 239.

63 Caballero-Anthony, op. cit. (note 21), p. 249.
64 J.-M. Henckaerts, ‘The Protection of Human Rights in the European Union: Overview’, in
Shelton (ed.), op. cit. (note 10), p. 43.
65 Although it had significant competence to interfere in the domestic affairs with respect to matters
falling within the treaties constituting the European Communities/European Union.
66 Henckaerts, op. cit. (note 64).
67 This changed in 1998 when Protocol 11 entered into force, establishing the Court as a permanent,
full-time judicial body, and making individual petition and acceptance of the Court’s jurisdiction
compulsory.
68 See, eg, Ovey and White, op. cit. (note 39), p. 18.
national level, to guarantee rights. ‘Subsidiarity’ refers to the corollary, that the
Court is only a ‘subsidiary’ means of protecting rights, to be called upon where
national legal systems fail to do so. This principle is embodied, for example, in
article 35 of the ECHR, which provides that the Court can only deal with a matter
‘after all domestic remedies have been exhausted’.69
Further, the European Court has developed principles of interpretation which
pay considerable deference to the decisions of national authorities. Perhaps the best
known is the doctrine of the ‘margin of appreciation’, by which the Court gives
states a measure of discretion in their application of the ECHR and defers, within
limits, to the decisions of national authorities as to what (if any) action is appropriate
to protect rights.70 The scope of the margin of appreciation depends on the nature
of the right in question and is wider where there is no consensus among member
states as to how a particular right should be protected in a particular fact situation,
and where important state interests are at stake. In this way, the ‘margin of appre-
ciation’ offers a way of mediating between the need to protect human rights and
the need to respect state concerns about loss of sovereignty (particularly in relation
to critical issues such as national security). However, it has also been criticized for
giving undue deference to states and thus detracting from the effectiveness of supra-
state human rights protection.71 In its various efforts to balance national sovereign
concerns against regional supervision of human rights, the European experience
provides nuanced lessons for the Asia-Pacific region, as greater attention is paid
there to working out the interaction between sovereignty and external human rights
mechanisms.
Assertion four: the Asia-Pacific prefers informal dispute

settlement over adjudication
A fourth explanation for resistance to human rights cooperation in Asia is that
Asian people (and countries) prefer to resolve disputes by less formal and relatively
unstructured means (such as by negotiation, diplomacy or mediation), rather than
submitting to formal, binding adjudication. A corollary of this argument is a view
that human rights are better dealt with as matters of national policy and are not
suited to ‘legalization’ through judicial mechanisms.72
69 For more detailed discussion, see, eg, L. Helfer, ‘Redesigning the European Court of Human
Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’,
European Journal of International Law 19, 2008, p. 125 at pp. 128–9.
70 For a recent discussion of this doctrine, see S. Sottiaux and G. van der Schyff, ‘Methods of
International Human Rights Adjudication: Towards a More Structured Decision-Making Process
for the European Court of Human Rights’, Hastings International and Comparative Law Review 31,
2008, p. 115 at pp. 134–6.
71 See D. Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’, Duke Journal of
Comparative and International Law 13, 2005, p. 95 at p. 134.
72 A finer variation of this view is that for ‘Asians’, ‘principles, rules and issues are seen in relative
terms, not as absolutes engraved in stone and that cannot be compromised’: Rana, op. cit. (note
24), p. 174.
Such views require careful scrutiny. While many Asian countries were historically
sceptical of binding international dispute resolution mechanisms – seeing them as
a tool of western hegemony – such attitudes have changed markedly over time. As
a former Chinese President of the International Court of Justice (‘ICJ’) shrewdly
observed,73 Asian states have increasingly embraced judicial settlement in
contentious cases before the ICJ, as well as participating in advisory opinions.74
Some of those cases have involved acutely sensitive matters of sovereign title to
territory, as have complex maritime disputes submitted to the International
Tribunal for the Law of the Sea (such as between Myanmar, Bangladesh and India
in 2010). Moreover, there has also been a shift to Asia in the centre of gravity of
binding international arbitrations, with more now taking place each year in Asia
than in western countries.75 Asian countries are also active participants in the World
Trade Organization’s dispute settlement procedure. Over time, ASEAN itself has
developed increasingly strong dispute resolution mechanisms providing for binding
determinations.76
The brief survey above illustrates that Asian countries are willing to resort to
binding settlement processes when it suits them – principally in the economic arena,
but also on sensitive sovereignty questions such as territory – yet many reject the
adjudication of human rights disputes. This suggests that binding settlement is
hardly foreign to Asia, its values or traditional practices and that indeed it has been
warmly embraced where natural resources or economic transactions are involved.
The selection of a particular dispute settlement method in a given subject area can
only be understood as a political choice by Asian governments – not something
dictated by immutable Asian values or inherited ancestral characteristics.
Deconstructing reductive, essentialist and Orientalist or Occidentialist views
about legal systems, cultures and regions is vital in properly understanding resis-
tance to greater regional cooperation in the Asia-Pacific. During the drafting of the
African Charter, it was agreed by many African countries that ‘the formal adver-
sarial procedures common to Western legal systems were inappropriate. African
customs and traditions emphasize conciliation rather than judicial settlement’.77
Yet, in the very short time span of 17 years, the African Commission established
73 J. Shi, ‘Asia and International Court of Justice’, speech delivered at the UN University, Tokyo,
14 April 2004, available at: <http://www.icj-cij.org/presscom/files/1/3141.pdf?PHPSESS
ID=5c407> (accessed 28 June 2010).
74 Contentious cases have involved India, Pakistan, Cambodia, Thailand, Malaysia, Indonesia,
Singapore and Japan; advisory opinions have involved at least ten Asian countries, such as Korea,
the Philippines and Vietnam, among others already mentioned.
75 S. Ali, ‘Approaching the Global Arbitration Table: Comparing the Advantages of Arbitration as
Seen by Practitioners in East Asia and the West’, Review of Litigation 28, 2009, p. 791.
76 See, eg, Protocol to the ASEAN Charter on Dispute Resolution, adopted 8 April 2010. On
economic disputes, see ASEAN Protocol on Enhanced Dispute Settlement Mechanism, adopted
29 November 2004 (replacing the Protocol on Dispute Settlement Mechanism, adopted 20
November 1996).
77 Umozurike, op. cit. (note 34), p. 909; see also Heyns, op. cit. (note 34), p. 686; Umozurike, op.
cit. (note 56), p. 190 (also stressing the traditional importance of good future relations, thought to
be impaired by judicial settlement).
in 1987 was supplemented by an African Court of Human and Peoples’ Rights in
2004,78 suggesting that custom is hardly determinative if the conditions for regional
cooperation are right. In Africa, the change of opinion was partly due to increasing
democratization in various countries, the end of apartheid in South Africa in 1994,
and the passing of the Cold War.79
Moreover, given the proliferation of alternative dispute resolution mechanisms
in western societies over many decades, it cannot be said that binding adjudication
is a peculiarly western preference. Even within the ECHR system, which is
generally seen to be the ultimate binding, judicial approach to human rights pro-
tection, there remains an emphasis on ‘friendly’ settlement of disputes. Although
the European Court has the power to issue binding judgments, it must encourage
the parties to resolve their dispute through negotiation, by ‘plac[ing] itself at the
disposal of the parties concerned with a view to securing a friendly settlement of
the matter’.80 Similarly, article 48(f) of the American Convention on Human Rights
reserves a mediatory role for the Inter-American Commission ‘with a view to
reaching a friendly settlement of the matter’, while article 49 of the Convention
highlights the relevant mediation procedure.81
Some pre-conditions of regional cooperation

The experience of other regional human rights systems suggests that there is no
single pattern or template in establishing regional cooperation. In the Americas,
there was a relatively high degree of regional solidarity among a fairly small number
of countries and extending over a long period, boosted by the regional hegemonic
influence of the United States, which created enough momentum and confidence
among states to submit to regional scrutiny.82 The modern Organization of
American States (‘OAS’) was established in 1948 and had deep roots in the
International Union of American Republics in 1890, the Pan-American Union of
1910 and even the Congress of Panama of 1826.83 Common regional practices
78 On the creation of the Court, see I. Kane and A. Motala, ‘The Creation of a New African Court
of Justice and Human Rights’, in M. Evans and R. Murray (eds), The African Charter on Human and
Peoples’ Rights: The System in Practice 1986–2006, 2nd edn, Cambridge and New York: Cambridge
80 Article 39(1).
81 That procedure is not, however, as commonly used as in the European system, given the essential
unsuitability of mediation in resolving the kind of gross violations of human rights which have
featured in the Inter-American system. See D. Harris, ‘Regional Protection of Human Rights:
The Inter-American Achievement’ in D. Harris and S. Livingstone (eds), The Inter-American System
of Human Rights, Oxford: Clarendon Press, 1988, p. 1 at p. 3.
82 J. Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 2003,
p. 142.
83 The 1948 Charter of the Organization of American States entered into force in December 1951
and a number of subsequent protocols have amended the Charter: the Protocol of Buenos Aires
(1967); the Protocol of Cartagena de Indias (1985); the Protocol of Washington (1992); and the
Protocol of Managua (1993).
such as diplomatic asylum and geo-political realities driving independence move-
ments drove perceptions of shared regional interests. Hence, regional human rights
protection became a natural outgrowth of relatively ‘thick’ regional social bonds.
From its outset, the OAS was not limited to narrow technical cooperation, but
pursued a broad agenda including the promotion of democracy and human rights,
the strengthening of peace and security, and economic, social and cultural co-
operation.84
In Europe, by contrast, protracted historical animosity between the great powers
and their satellites, punctuated by periodic continental and world wars, was
replaced relatively quickly by post-war economic cooperation followed by deep
political and social integration. The experience of mass global violence was a trigger
for regional human rights cooperation, as Europe deliberately turned against the
violent past and sought to reconstruct a European social order founded on new
values. Regional European cooperation was also stimulated by the slow pace of
UN efforts in codifying the Universal Declaration of Human Rights of 1948 into
the binding twin covenants of 1966.85 Africa moved more slowly than Europe, but
the experience of colonialism catalysed regional cooperation on human rights,
albeit flavoured by perceptions of ‘African values’ which, in turn, appropriated
human rights as a part of a new African identity.
In the Asia-Pacific region, neither the mass violence of the Second World War
nor the experience of colonialism was sufficient to surmount various kinds of
resistance to regional cooperation on human rights. The explanations for Asian
resistance to human rights, analysed above, help to explain why Asian governments
have typically taken certain positions, but they do not satisfactorily account for the
considerable divergence on rights between Asia and Africa when many of the
underlying experiences are comparable: diversity; perceptions of unique values;
colonialism; and a preference for conciliation over adjudication. These explanations
can be further questioned once it is realized that many of these experiences can
also be found, albeit to a more moderate degree, in the American and European
contexts.
Some tentative further explanations are these. There is a lesser sense of geo-
graphical contiguity in the Asia-Pacific than in other regions. Europe is a dense
continent of neighbours; Africa is larger but still identifiable as a discrete continent;
and the Americas are two well-defined continents aligned north to south. By
contrast, the Asia-Pacific is geographically unruly and chaotic, and no-one really
agrees on where it starts and ends: the mid-Pacific Ocean through to the Middle
East, with quite discrete sub-regions in between – Central Asia, South Asia, North
and East Asia and Southeast Asia.
84 Annual Report of the Inter-American Commission on Human Rights 1994, 17 February 1995,
p. 347, available at: <http://www.cidh.org/annualrep/94eng/TOC.htm> (accessed 29
September 2010).
85 D. Shelton, ‘The Promise of Regional Human Rights Systems’, in Shelton (ed.), op. cit. (note 10),
p. 16 at p. 16.
While this point might be dismissed as merely geographical trivia, geography
can nonetheless affect social perceptions of unity, solidarity and community, and
therefore ideas about what kind of cooperation is possible in a given area. A
practical consequence of the geographic point is that there is no single regional
organization or institution in Asia which can claim pre-eminence in representing
the wider, amorphous group: ASEAN, SAARC, APEC and PIF are all small clubs
of limited sub-regional memberships, in contrast to the larger continental
constellations of the Council of Europe and European Union, the African Union
and the OAS.86
Further fracturing the Asia-Pacific community is the comparatively limited scope
of cooperation pursued within these bodies to date – mainly economic, plus

some security issues, but nothing like the wider and deeper integration elsewhere,
including in the most comparable context, Africa.87 Diplomacy is often conducted
through formal regional meetings of leaders, with relatively limited bilateral
contacts.88
The relatively narrow scope of cooperation limits the degree of mutual con-
fidence among governments in the region which would be necessary to cooperate
on human rights. Cross-border historical animosities, ethnic and religious tensions,
and competition over resources (such as shared watercourses) are just some of the
sources of inter-governmental distrust in the region. External powers in the region,
such as the United States, also tended to subordinate human rights concerns to
wider geo-strategic priorities, particularly during the Cold War,89 while rising
powers, such as China, do not place human rights at the centre of foreign policy.
External scrutiny of one another’s human rights performance requires a fairly
high level of inter-governmental confidence, so that criticism does not result in the
rapid deterioration of diplomatic relations – particularly in a region where criticism
may be received as personal insults to leaders.90 At the same time, thick social
relations are necessary in the event that sanctions are required to compel com-
pliance. As Heyns observes of the African system, ‘trade, diplomatic communi-
cation, travel, and other links between state parties’ are necessary before a regional
human rights system can be effectively enforced, including through sanctions.91
Time, the widening of cooperation generally, the thickening of transboundary
86 Although Europe is also characterized by a proliferation of regional bodies (such as the Council
of Europe, European Union, Regional Cooperation Council, and OSCE) with different
memberships and different mandates, all of which play some role in relation to the protection of
human rights.
87 M. Nieman, ‘Regional Integration and the Right to Development in Africa’, in McCarthy-
Arnolds, Penna and Sobrepeña (eds), op. cit. (note 29), p. 107 at pp. 111–12 (noting that regional
cooperation sprang up in Africa as part of decolonization and development).
88 Rana, op. cit. (note 24), p. 174.
89 Tang, op. cit. (note 9), pp. 186–7.
90 Haacke, op. cit. (note 60), p. 222.
social relations (including civil society),92 democratization93 and the loosening of
authoritarian governance and legal systems are all factors in moving towards
stronger regional protection of human rights in the Asia-Pacific.
Given the difficulties identified above, sub-regional rather than whole-of-region
cooperation on human rights may be both more feasible and more fruitful in the
short term, given that this could tap into existing institutions which share common
concerns, values and histories of cooperation.94 Such a suggestion was made in the
African context concerning ‘like-minded’ states in the early 1980s,95 although it
was superseded by pan-African developments. The recent ASEAN mechanism,
AICHR, is a rudimentary beginning in South East Asia, but so far falls short of
both international guidelines for regional human rights mechanisms as well as best
practice in other regions. The other two promising sub-regions in the Asia-Pacific
are South Asia (through SAARC) and the Pacific (through the PIF), while East Asia
would seem to be the most unlikely to embrace a mechanism given its current geo-
politics.
South Asia is promising because SAARC countries are geographically proximate
in the area of the Indian sub-continent; are a relatively small group of states (seven);
have strong historical ties (including a shared legacy of British colonialism in many
countries); are all democracies with strong formal human rights protections in
domestic law; have increasingly thickened regional cooperation over time, including
by adopting at least two subject specific human rights instruments;96 and share a
range of common problems, from terrorism to environmental protection to
transboundary resource governance.
The Pacific region too may be a viable sub-region,97 given that it exhibits signifi-
cant commonalities of culture, custom and values. There are notable similarities
across Pacific countries, largely based on shared economic issues, similar demo-
cratic systems of government, Christian heritage, a shared history of colonization
and the need to respond to the impacts of globalization.98 These similarities provide
a firm basis for the development of a mechanism that is capable of harmonizing
92 There has been a rapid proliferation of civil society organizations in Southeast Asia: see M.
Caballero-Anthony, Regional Security in Southeast Asia: Beyond the ASEAN Way, Singapore: Institute
of Southeast Asian Studies, 2005, pp. 235–9.
93 Haacke, op. cit. (note 60), p. 218.
94 See Commonwealth of Australia, Human Rights in the Asia-Pacific: Challenges and Opportunities: Joint
Standing Committee on Foreign Affairs, Defence and Trade, 2010, pp. 107–10; Shelton, op. cit. (note 10),
p. 1056.
95 E. Bello, ‘Human Rights: The Rule of Law in Africa’, International and Comparative Law Quarterly 30,
1981, p. 628 (proposing the group of Kenya, Ivory Coast, Nigeria, Senegal, Tanzania and
Zambia).
96 SAARC Convention on Combating and Prevention of Trafficking in Women and Children for
Prostitution, op. cit. (note 8); SAARC Convention on Regional Arrangements for the Promotion
of Child Welfare in South Asia, op. cit. (note 8).
97 See P. Butler, ‘A Human Rights Charter for the Pacific’, Human Rights Research Journal, 2005, p. 7.
98 New Zealand Law Reform Commission, Converging Currents – Custom and Human Rights in
the Pacific, Study Paper No. 17, 2006, pp. 32–3.
international human rights norms with regional customs and culture. There is also
growing recognition by Pacific leaders that human rights are a regional issue.99
Conclusion
The Asia-Pacific region faces numerous human rights problems, which well-
designed regional or sub-regional human rights mechanisms can assist in
addressing. Despite common belief, there is nothing inherent about the Asia-Pacific
region which precludes the development and evolution of strong human rights
institutions. The Asia-Pacific region is neither too diverse nor too distinctively
‘Asian’ to rule out regional cooperation, and other regions of the world have faced,
and overcome, similar concerns. Further, seemingly rigid concepts of sovereignty
and non-interference are more nuanced in practice when examined closely, and
governmental attitudes towards them are changing in the region as cooperation
widens and deepens on a range of issues over time. Finally, ‘Asians’ are well familiar
with binding forms of adjudication in a variety of contexts and are not wedded to
a perceived inheritance of conciliation. All too often in the Asia-Pacific region,
strategic political choices by governments to avoid strengthening human rights
protection have been presented as inherent truths about the human condition in
the region.
Once such camouflage is stripped away, there are of course a range of pragmatic
difficulties in the way of developing new mechanisms in the region and a ‘sober
realism’100 about the pace of possible change is needed. Yet, many of these
difficulties may be overcome by an evolutionary approach which builds regional
confidence and strengthens institutions over time, just as occurred in the European,
American, African and Arab regions. Sub-regional mechanisms in the Pacific,
South Asia and ASEAN regions are potentially viable options. At the same time,
to maximize the effectiveness of regional arrangements, it is imperative to support
the ongoing development of both national human rights institutions and the
ratification of international human rights instruments.
99 The Pacific Plan for Strengthening Regional Cooperation and Integration, para. 2(iv), available at:
<http://www.forumsec.org.fj/resources/uploads/attachments/documents/Pacific%20Regional%
20Digital%20Strategy.pdf> (accessed 29 September 2010); Auckland Declaration, 6 April
2004, available at: <http://www.forumsec.org.fj/resources/uploads/attachments/documents/
AUCKLAND%20Declaration1.pdf> (accessed 29 September 2010).
100 L. Thio, ‘Implementing Human Rights in ASEAN Countries: “Promises to Keep and Miles to
Go Before I Sleep”’, in Shelton (ed.), op. cit. (note 10), p. 1064 at p. 1075.
7 Persistent engagement
and insistent persuasion:
the role of the working
group for an ASEAN Human
Rights Mechanism in
institutionalizing human
rights in the region

Tan Hsien-Li
Introduction
Expressly promising to establish a human rights body in article 14 of the 2007
Charter of Association of Southeast Asian Nations (‘ASEAN’), the ten members of
this Southeast Asian grouping have overcome many differences to finally form
the ASEAN Intergovernmental Commission on Human Rights (‘AICHR’) at the
15th ASEAN Summit on 23 October 2009.1 This is the very first time a formal
human rights mechanism has been founded in Asia. The last time a regional human
rights institution was established was the African system in 1986, more than two
decades ago. It is understandable therefore that there is much excitement and
expectation (as well as criticism and derision) for the AICHR comes from inter-
national and regional observers, academia, international human rights organiza-
tions, non-governmental organizations, policy institutes and states.
While most of the current literature offers salient analyses on the subject, the
writings have tended to take the form of shorter commentaries focusing pre-
dominantly on the establishment of the AICHR against the background of the
ASEAN Charter,2 due largely to the difficulty in researching and obtaining
1 See, generally, Tan H.-L., ‘The ASEAN Human Rights Body: Incorporating Forgotten Promises
for Policy Coherence and Efficacy’, Singapore Year Book of International Law 12, 2008, p. 239.
2 These are mainly commentaries rather than formal academic publications. See, for instance, A.
Cook, B. Chng and I. Kuntjoro, ‘The AICHR Framework for Action’, NTS Insight, 1 October
2009, available at: <http://www.rsis.edu.sg/nts/HTML-Newsletter/Insight/NTS-Insight-oct-
0901.html> (accessed 13 September 2010); H. Phan, ‘The ASEAN Inter-Governmental
Commission on Human Rights and Beyond’, Asia-Pacific Bulletin (East West Center, Washington) 40,
2009; T. Chalermpalanupap, ‘Promoting and Protecting Human Rights in ASEAN’ ASEAN,
2008, available at: <http://www.aseansec.org/HLP-OtherDoc-2.pdf> (accessed 15 September
2010); T. Chalermpalanupap, ‘10 Facts about ASEAN’ Human Rights Cooperation, undated,
available at: <http://www.aseansec.org/HLP-OtherDoc-1.pdf> (accessed 13 September 2010).
information on Southeast Asia and other constraints. The existing literature
neglects discussion of ASEAN’s complex relationship with human rights and how
non-governmental organizations (‘NGOs’) have contributed towards the process
of institutionalizing human rights monitoring in this region.3 One particular NGO,
the Working Group for an ASEAN Human Rights Mechanism (‘the Working
Group’), has been instrumental in the latter aspect. This chapter aims to examine
how the Working Group’s persistent engagement with ASEAN as an institution and
with ASEAN member states individually have facilitated ASEAN’s establishment of
the AICHR.
This chapter first briefly sets out the efforts that ASEAN has made towards
establishing the AICHR and the parameters of its mandate based on the AICHR’s
legal and enabling documents – the ASEAN Charter, Terms of Reference, Cha-
Am Hua Hin Declaration on the Intergovernmental Commission on Human
Rights (‘Cha-Am Hua Hin Declaration’) and the ASEAN Political-Security and
Socio-Cultural Community Blueprints. Secondly, ASEAN’s foundational steps
towards building the AICHR over the past decade will be discussed. In this section,
the Working Group’s contributions will be teased out and analysed, showing how
ASEAN took on a considerable degree of the Working Group’s human rights
initiatives and subsequently formalized them in official ASEAN documentation
and in the exercise of AICHR competences. Finally, the AICHR’s powers will be
briefly examined to show how they compare with regional aspirations and
international standards, and what further steps the Working Group could take (in
terms of both internal mandate and external action) to assist the AICHR in
performing its functions and improving its work constantly as it evolves.
It must be noted that despite this chapter’s focus on the Working Group, the
author recognizes that its contributions are but one of a myriad of other internal
and external factors – such as the strengthening of civil society in the ASEAN
region, the democratization patterns in some ASEAN states, the growth of national
human rights institutions, and the increased familiarity with human rights within
ASEAN – which have culminated in the AICHR’s establishment.4
The AICHR and its mandate

The AICHR is governed by five foundational documents. The ASEAN Charter is
the legally binding document which stipulates its establishment.5 The Terms of
Reference (‘TOR’) is an enabling document which sets out the parameters and
3 The author elaborates on the nexus between ASEAN and non-state actors in a chapter in Jean
d’Aspremont (ed.), Participants in the International Legal System: Theoretical Perspectives, London:
Routledge, 2011 forthcoming.
4 These issues and more will be discussed in Tan H.-L., The ASEAN Inter-Governmental Commission on
Human Rights: Institutionalising Human Rights in Southeast Asia, Cambridge: Cambridge University
Press, 2011 forthcoming.
5 ASEAN Charter (entered into force 15 December 2008), available at: <http://www.aseansec.org/
21069.pdf> (accessed 13 September 2010).
Persistent engagement and insistent persuasion 129
structure of the human rights body.6 The Cha-Am Hua Hin Declaration reiterates
the spirit and aspirations that ASEAN holds for the AICHR.7 The ASEAN
Political-Security and Socio-Cultural Community Blueprints then elaborate on
ASEAN’s substantive human rights objectives up to 2015.8 It is generally accepted
that while these are the referent documents for AICHR’s initial operational phase,
they are not exhaustive, but merely set the minimum standards for further
expansion of powers as the AICHR evolves.
As part of its roadmap to transform into a formal international institution with
legal personality and legitimacy, and with a view to achieving the ASEAN
Community founded on political-security, economic and socio-cultural pillars by
2015,9 ASEAN on the occasion of its 40th anniversary adopted its new and legally-
binding Charter.10 In this Charter, ASEAN explicitly pledges to adhering to
democracy, human rights and fundamental freedoms, good governance, and the
rule of law in its purposes and principles.11 Substantive action was promised in
article 14, which states that ‘[i]n conformity with the purposes and principles of
the ASEAN Charter relating to the promotion and protection of human rights and
fundamental freedoms, ASEAN shall establish an ASEAN human rights body’.12
Pursuant to this explicit avowal, ASEAN convened the High Level Panel com-
prising senior officials from each member state to draft the terms of reference that
would frame the operations of this human rights body.13 Despite the fears that the
human rights institutionalization process could be stalled by disagreement among
the member states over the name of the human rights body, and its mandate and
functions, the Terms of Reference was finally endorsed by the ASEAN Foreign
6 Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights, adopted

in 2009, available at: <http://www.aseansec.org/DOC-TOR-AHRB.pdf> (13 September 2010)
(‘AICHR Terms of Reference’ or ‘TOR’).
7 Cha-Am Hua Hin Declaration on the Intergovernmental Commission on Human Rights, adopted
by the ASEAN Heads of State and Government at the 15th ASEAN Summit in Thailand, 23
October 2009, available at: <http://www.aseansec.org/documents/Declaration-AICHR.pdf>
(13 September 2010).
8 ASEAN Political-Security Community Blueprint, available at: <http://www.aseansec.org/5187-
18.pdf> (accessed 13 September 2010); ASEAN Socio-Cultural Community Blueprint, available
at: <http://www.aseansec.org/5187-19.pdf> (accessed 13 September 2010).
9 Cebu Declaration on the Acceleration of the Establishment of an ASEAN Community by 2015,
available at: <http://www.aseansec.org/19260.htm> (accessed 13 September 2010).
10 Singapore Declaration on the ASEAN Charter, available at: <http://www.aseansec.org/
21233.htm> (accessed 13 September 2010).
11 ASEAN Charter, arts 1, 2.
12 Ibid, art. 14(1).
13 Ibid, art. 14(2). See also Terms of Reference for the High Level Panel on an ASEAN Human
Rights Body for the Composition of the HLP, 2008, available at: <http://www.aseansec.org/
HLP-TOR.pdf> (accessed 13 September 2010); ‘Press Comments by the Chairman of the High
Level Panel (HLP) on the Establishment of an ASEAN Human Rights Body, 41st AMM’, 2008,
available at: <http://www.41amm.sg/amm/index.php/web/press_room/press_releases/press_
comments_by_the_chairman_of_the_high_level_panel_hlp_on_the_establishment_of_an_asean_
human_rights_body> (accessed 13 September 2010).
Ministers at the 42nd ASEAN Ministerial Meeting (‘AMM’) in Thailand in July
2009 and the ASEAN Intergovernmental Commission on Human Rights was
established.14
Right at the outset, the Terms of Reference explicitly states that the AICHR is
to be a consultative intergovernmental body residing within the general ASEAN organi-
zational structure.15 Hence, as a component institution comprising governmental
representatives, the AICHR would of course be required to abide by the ‘ASEAN
Way’ – characterized mainly by the supremacy of sovereignty and non-interference
in the internal affairs of other member states.16 It emphasizes that any cooperation
on the promotion and protection of regional human rights would necessitate a
gradual, constructive, non-confrontational and evolutionary approach,17 and that

all decisions are to be made by consensus.18
Over and above the member states’ primary responsibility to uphold human
rights,19 the Terms of Reference also stresses AICHR’s purpose ‘to promote and
protect human rights and fundamental freedoms of the peoples of ASEAN’,20 while
bearing in mind the socio-cultural differences between ASEAN members, national
and regional particularities, as well as the need to balance rights and responsi-
bilities.21 The AICHR is to foster regional cooperation to complement the national
and international efforts to ‘uphold international human rights standards as
prescribed by the Universal Declaration of Human Rights (‘UDHR’),22 the Vienna
Declaration and Programme of Action,23 and international human rights instru-
ments to which ASEAN member states are parties’.24 In view of the potential
thematic mechanisms to protect the rights of women, children, migrant workers
and the synergy between the AICHR and those theme-specific mechanisms, the
Terms of Reference expressed that this ‘is the overarching human rights institution
in ASEAN with overall responsibility for the promotion and protection of human
rights in ASEAN’.25
There are mixed reactions to the establishment of the AICHR. While the media
reports show widespread censure, the real picture is more nuanced. Civil society
and international observers are cautiously positive about having a human rights
institution in ASEAN – that the presence of such a body enables greater scrutiny
and a forum for discussing regional ills, which is perhaps better than not having
14 Joint Communiqué of the 42nd ASEAN Foreign Ministers Meeting, Thailand, 2009, para. 8,
available at: <http://www.aseansec.org/PR-42AMM-JC.pdf> (accessed 13 September 2010).
15 AICHR Terms of Reference, op. cit. (note 6), para. 3.
16 See ibid, para. 2.1 for the elaboration of the principles that the AICHR has to abide by.
17 Ibid, paras 2.4–2.5.
18 Ibid, para. 6.1.
19 Ibid, para. 2.3.
20 Ibid, para. 1.1.
21 Ibid, para. 1.4.
22 GA Res. 217A (III) (1948).
23 UN Doc. A/CONF.157/23 (1993).
24 AICHR Terms of Reference, op. cit. (note 6), paras 1.5–1.6.
25 Ibid, para. 6.8.
one at all. Nonetheless, there are no illusions as to the AICHR’s immediate efficacy.
The UN has encouraged the AICHR to ‘work hard to establish itself as a credible
regional mechanism and help close the gap between human rights rhetoric and the
reality on the ground’.26 Moreover, Dato’ Param Cumaraswamy, Chairperson of
the Malaysian Working Group for an ASEAN Human Rights Mechanism and the
former UN Special Rapporteur on the independence of judges and lawyers, had
earlier said that while it was preferable that the Terms of Reference be ‘more legal
than political in nature’, he held hopes for the ‘consultative and step-by-step process
involving governments and civil society groups in the longer term’.27
Civil society rightly takes issue with the strong ASEAN/state-centric char-
acteristics colouring the AICHR – that as a component institution, it is to abide by

the ‘ASEAN Way’ of non-interference, adopt ‘constructive and consultative’
approaches to achieve consensus on all decisions, and that decisions which cannot
be concluded at the AICHR level are to be referred to the ASEAN Foreign Ministers
for final resolution. While it is indeed an international norm that states have the
primary duty to promote and protect human rights in their territories, there are
misgivings that given the predominant tone of the AICHR mandate ‘favouring’ the
state, it is uncertain to what extent human rights protection and promotion in the
region can be carried out according to international standards. The justification (or
excuse) of the ‘non-interference’ and cultural relativity principles could tie the
AICHR’s hands in the closer scrutiny to address human rights abuses within ASEAN
states. ASEAN states, the AICHR representatives and civil society all have a duty
in being vigilant to avoid travesties of justice in the name of sovereignty.
Furthermore, with the rotating Chairpersonship of the AICHR being helmed
by the country representative of the ASEAN member chairing ASEAN of that
particular year,28 the tone and expanse of the AICHR’s activities would be set
according to that state’s inclinations. The AICHR would most probably be very
active when chaired by Indonesia, the Philippines or Thailand, but would be more
subdued in the years when other members chair. It is also crucial to note that there
is no mention of ‘independence’ or ‘transparency’ in the Terms of Reference –
terms one naturally expects of a regional human rights body that promises to adhere
to international standards. Transparency and independence are of utmost
importance and the non-transparent process through which most of the ASEAN
states chose their AICHR representatives was found inadequate in these two
respects. The openness and engagement with civil society on the selection process
varied among the ASEAN states with the result that most were representatives
linked to the government.29 The exceptions were Indonesia and Thailand, which
26 Per Homayoun Alizadeh, Regional Representative, UN Office of the High Commissioner for
Human Rights (OHCHR), Thailand. ‘UN Urges “Credible” New Asian Human Rights Body’,
AFP, 22 October 2009.
27 ‘Toothless in Infancy, but the Victory Is in Being Born’, Bangkok Post, 16 July 2009.
28 AICHR Terms of Reference, op. cit. (note 6), para. 5.9.
29 ‘Rights Groups Condemn ASEAN’, Bangkok Post, 20 October 2009. See also ‘A Difficult Birth for
ASEAN Human Rights’, Bangkok Post, 25 October 2009.
appointed experienced civil society leaders spearheading human rights initiatives,
Mr Rafendi Djamin and Dr Sriprapha Petcharamesree respectively, to the AICHR.
Additionally, despite the promotion and protection mandate stipulated by the
TOR, observers are dissatisfied that the AICHR is slated to carry out promotional
activities for regional human rights rather than carrying out its protective duties.30
These promotional functions include the development of an ASEAN Human
Rights Declaration that will serve as a framework for coordinating the region’s
human rights cooperation;31 promoting the ASEAN instruments dealing with
human rights (there is no explicit mention of AICHR’s facilitation of the imple-
mentation of such instruments but it could technically be assumed as one of its
functions);32 fostering human rights public education programmes, enhancing

research, and the dissemination of such information;33 promoting capacity building
so that ASEAN states will consider ratifying the international human rights
instruments and effectively implement their existing international human rights
treaty obligations;34 and to develop common positions on human rights pertaining
to ASEAN.35
ASEAN has maintained a constant position to such criticism as observed by
various officials involved in the AICHR’s establishment process.36 These sentiments
are perhaps best expressed by Termsak Chalermpalanupap, Special Assistant to
the Secretary-General of ASEAN and resource person to the High Level Panel.
Given the varying levels of openness to human rights by ASEAN members, the
reach of the ASEAN human rights body was considered very carefully during the
deliberations by the High Level Panel on the Terms of Reference – even the
mechanism’s name was of serious contention as it denoted the strength of the
mechanism’s powers to a certain extent.37 As to the disputed level of interface
between the civil society and the High Level Panel on the regional human rights
mechanism, Termsak was adamant that the ‘drafting of the TOR [was] an inter-
governmental exercise’ and that the High Level Panel had already had regular
dialogue sessions with civil society groups; those who wished to express further
views could submit them directly to the High Level Panel or its individual
members.38
On issues of transparency and efficacy, Termsak stated firmly that with the
AICHR within the organizational structure of ASEAN and operating through
30 ‘Terms of Reference Falls Short, Mechanisms Needed: NGOs’, Jakarta Post, 17 October 2009.
31 AICHR Terms of Reference, op. cit. (note 6), paras 4.2, 4.6.
32 Ibid, para. 4.6.
33 Ibid, para. 4.3.
34 Ibid, paras 4.4–4.5.
36 See ASEAN Documents on the AICHR, available at: <http://www.aseansec.org/22769.htm>
37 Ibid. See also T. Chalermpalanupap, ‘10 Facts about ASEAN Human Rights Cooperation’,
undated, para. 3, available at: <http://www.aseansec.org/HLP-OtherDoc-1.pdf> (accessed 13
September 2010).
38 Chalermpalanupap, op. cit. (note 37), para. 6.
consultation and consensus, it is not supposed to be an ‘independent watchdog’.
Berating critics, he noted that to ‘moan’ about the AICHR’s ‘lack of teeth’ was
akin to ‘bark[ing] up the wrong tree’ as ‘no biting [was] ever required’, adding that
‘ASEAN would not have come this far if its Member States want[ed] to bite one
another with sharp teeth just to get things done their own way’.39 Termsak also
cautioned that as ASEAN operates ‘in the real world’ and must be ‘realistic about
what it can or cannot do’, human rights cooperation had to begin at a level with
which every ASEAN member was comfortable and agreeable. Human rights
promotion, meaning human rights education as well, would be a practical place to
start with. He reiterated that regional cooperation required the participation of all
ASEAN members – the ‘ASEAN minus X’ (majority) formula was hence

unfeasible. Nonetheless, he stated that there existed sufficient flexibility to
strengthen the AICHR as it evolved – future initiatives would not be limited to the
mandate presently outlined in the TOR.40
This last point is an important concession, as the way in which the Terms of
Reference has structured the AICHR is admittedly rather unsatisfactory due to it
being a product of political compromise. There is a wide spectrum of positions
across the ten ASEAN member states – those which want it to exercise powers as
strong as other international mechanisms and those which continue to oppose
external scrutiny.
The states which have propelled the ASEAN human rights project forward have
tended to be Indonesia, the Philippines and Thailand. This is unsurprising, given
that these countries have had a history of struggling against and eventually
emerging from autocratic rule into democratic governance.41 Hence, with their
active civil societies, national human rights commissions, and state officials and
citizenry more accustomed to the language and modalities of human rights, they
have been more demonstrative in their advocacy of regional human rights. In
particular, Indonesia has been the most vocal in articulating that human rights and
democracy must play a more visible part in regional politics. It originally refused
to ratify the ASEAN Charter on the grounds that the proposed human rights body
was ineffectual, but eventually did ratify the Charter on condition that human rights
institutionalization would continue to be strengthened and that democratic rule
would be encouraged in member states like Myanmar such that having a regional
human rights body was not merely ‘window-dressing’.42
The more conservative in the ASEAN grouping have been Cambodia, Laos,
Myanmar, Vietnam and Brunei whose strong state policies have generally
precluded overt intrusion into what they regard as their ‘internal affairs’. None of
these states have yet established national human rights commissions – although
39 Ibid, para. 7.
40 Ibid, para. 10.
41 This is explained in greater length in Tan, op. cit. (note 4), especially a chapter on ‘The ASEAN
Human Rights Body: Incorporating Forgotten Promises for Policy Coherence and Efficacy’.
42 ‘Indonesia Ratifies ASEAN Charter’, AFP, 21 October 2008.
Cambodia has maintained interest in setting one up43 – and it is uncertain to what
extent individual or group rights can actually be protected, despite there being a
proliferation of NGOs (including aid agencies) and local grassroots organizations
dealing with human rights and social development matters. There clearly appears
to be reluctance for rapid human rights development as propounded by Indonesia,
the Philippines and Thailand.44
Standing on the middle ground are Malaysia and Singapore. Malaysia has the
Human Rights Commission of Malaysia (‘SUHAKAM’),45 a very active civil
society, and opposition parties which have highlighted domestic human rights
concerns.46 Singapore, on the other hand, has a much quieter civil society with no
national human rights commission, and human rights issues tend not to be widely
debated in public fora. These two states have, on the whole, been quietly supportive
of the regional institutionalization of human rights but at the same time customarily
cautious in their approach – the reticence possibly stemming from the stance that
leaders from both countries had taken during the ‘Asian values’ debate of the
1990s.47
Nonetheless, it is interesting to note that these ‘middle-grounders’, together with
Thailand, worked very hard to push for compromise among all ten member states
on the ASEAN human rights compact, thus preventing what could have been the
stalling or collapse of the months of discussions.48 Contrary to cynics who argue
that a ‘lowest common denominator’ outcome would inevitably ensue due to
ASEAN’s policy of obtaining consensus, it is important to recognize that the
conservative states do not stall the human rights institutionalization process when
they oppose certain proposals. As there has been overall political will to establish
the AICHR, those in the middle tended to facilitate the bridging of the two
opposing positions, with the agreement that human rights progress would
constantly be reviewed and strengthened. The contribution of these parties in
helping ASEAN reach an outcome acquiesced to by all ten member states cannot
be overlooked. It was acknowledged that, given the tension and efforts invested in
43 ‘A National Human Rights Institution for Cambodia’, undated, available at: <http://www.
aseanhrmech.org/news/national-human-rights-insitution-for-cambodia.html> (accessed 15
September 2010).
44 These are based on the author’s observations and interviews with regional human rights advocates,
as ASEAN-level human rights discussions have rarely been made public.
45 Human Rights Commission of Malaysia (SUHAKAM), website at: <http://www.suhakam.
org.my> (accessed 13 September 2010).
46 See, for instance, one of the largest human rights NGOs in Malaysia, Suara Rakyat Malaysia
(SUARAM), website at: <http://www.suaram.net/> (accessed 13 September 2010). Human
rights issues are often reported and debated by the independent media agency, Malaysiakini,
website at: <http://www.malaysiakini.com/> (accessed 13 September 2010).
47 Former Prime Ministers of Malaysia and Singapore, Mahathir Mohamed and Lee Kuan Yew
respectively, were prime proponents of ‘Asian values’. For a succinct account of the 1990s furore,
see for example, M. Barr, Cultural Politics and Asian Values: The Tepid War, London: Routledge, 2002,
30–45.
48 Tan, op. cit. (note 4).
the discussions for establishing the AICHR, if the talks were abandoned, it would
likely be that ASEAN would not have reopened the issue for years (or even
generations) to come.49
As the official stand is that the ASEAN human rights process is an evolving
mechanism, civil society organizations have indicated that they will push towards
greater powers and higher standards as the AICHR evolves.50 They have already
made it clear on several occasions that the establishment of the AICHR is only the
first step to greater human rights protection in the region and continue to suggest
improvements.51 Vitit Muntarbhorn, professor of law at Chulalongkorn University
and the former UN Special Rapporteur on the Situation of Human Rights in
Democratic People’s Republic of Korea, hopes that while the ASEAN Human
Rights Mechanism is based on consensus, it is also geared towards gaining results-
based credibility for its work. Muntarbhorn has also rather astutely observed that
the AICHR is ‘not the only tool enshrined in the ASEAN Charter for the
promotion and protection of human rights in the region’ and that ‘civil society, the
Secretary-General, the Councils of the three [ASEAN Community] pillars
(political, economic, and social ministers) and the summits are also the venues to
work out the issues’.52 Moreover, it is important to stress that there exist creative
avenues for AICHR to carry out protective functions not expressly mandated, in
that what the Terms of Reference ‘does not prohibit is not forbidden’.53 It would,
however, take time to see if and how AICHR exercises this ‘elastic’ mandate and
whether human rights protection would develop positively.
The third and final document in the establishment of the AICHR, the Cha-Am
Hua Hin Declaration, does not add to the substance of the Terms of Reference
but merely endorses the establishment of the AICHR according to the outlines of
the Terms of Reference.54 Nonetheless, one feels that the Cha-Am Declaration is
implicitly assuring critics that the AICHR will continually strive for improvement
and higher protections in its five-year review so as to ‘further develop mechanisms
on both the protection and promotion of human rights’ to enable it to truly be the
overarching regional institution responsible for upholding human rights.55
49 Ibid.
50 ‘Southeast Asian Rights Groups Call for Better Dialogue with ASEAN Leaders’, VOA, 9 October
2009, available at: <http://www.51voa.com/VOA_Standard_English/VOA_Standard_English_
34031.html> (accessed 29 September 2010).
51 Tan, op. cit. (note 1), pp. 239–55. See also ‘SAPA Task Force on ASEAN Human Rights, AICHR
Must Ensure Effective Rules of Procedure in Dealing with Human Rights Violations’, 22 March
2010, available at: <http://www.forum-asia.org/2010/2010-03-22%20RoP%20launching.pdf>
52 ‘Toothless in Infancy, but the Victory Is in Being Born’, op. cit. (note 27).
53 V. Muntarbhorn, 8th Workshop on the ASEAN Regional Mechanism on Human Rights,
Bangkok, Thailand, 14–15 July 2009, para. 6. ‘What the TOR does not expressly prohibit is not
forbidden’ is a common (and generally accepted) understanding shared among the ASEAN human
rights community – both official (state) and civil society members – and is seen as part of the
evolutionary process of the AICHR.
54 Cha-Am Hua Hin Declaration, op. cit. (note 7).
55 Ibid, paras 7, 8.
To engrave ASEAN’s human rights aspirations, the two Blueprints for the
ASEAN Political-Security and Socio-Cultural Communities adopted at the 14th
ASEAN Summit in March 2009 have to be read together with the above docu-
ments.56 In its Political-Security Community Blueprint, ASEAN professes to
promote and protect human rights as enshrined in the Charter.57 It outlines seven
key actions to this end, including the AICHR’s establishment, the systematic stock-
taking of existing human rights mechanisms and strengthening the networks among
them, improving the human rights information exchange among ASEAN states,
and enhancing human rights education and public awareness, as well as working
towards sector-specific developments such as a regional instrument for the rights
of migrant workers and the establishment of an ASEAN commission on the pro-

motion and protection of the rights of women and children.58 The Socio-Cultural
Community Blueprint further elaborates on the Political-Security Community
Blueprint, stating ASEAN’s objectives in safeguarding the rights and welfare of
women, children, the elderly, and persons with disabilities, and migrant workers
through better information gathering and sharing, the execution of existing ASEAN
initiatives and supporting various activities (including the access to remedies
and justice) to promote the rights for these vulnerable groups.59 Acknowledging the
need for human rights protection in the private sector, the Socio-Cultural
Community Blueprint also seeks to promote corporate social responsibility (‘CSR’)
through the raising of public awareness and the implementation of international
standards with respect to business and human rights.60
Paving the road towards AICHR – the dynamics

between ASEAN and the Working Group
Given the above, it is easier to dismiss the AICHR as ‘toothless’ – its emphasis on
promoting rather than protecting human rights – and to overstate obstacles than
to help it to uphold its promises by participating in the ASEAN human rights
process. It is very important that such sceptical negativity does not set the AICHR
up for a fall, wasting resources and benefiting nobody. Furthermore, with wide-
spread scrutiny upon ASEAN, to merely set up the AICHR as a ‘window-dressing’
exercise and allow sovereignty to trump the AICHR’s integrity would be detri-
mental to ASEAN’s reputation and its quest to become a rules-based international
organization. While in no way condoning the pragmatic limitations of the AICHR,
it must be remembered that up until a few years ago, human rights as an
institutional agenda was not an ASEAN objective. It might be better to view the
56 ASEAN Political-Security Community Blueprint, op. cit. (note 8). Note also that there is the
ASEAN Economic Community Blueprint adopted in November 2007 at the 13th ASEAN
Summit which does not mention human rights at all.
57 Ibid, paras 7, 12, 15.
58 Ibid, paras A.1.5(i)–(vii).
60 Ibid, para. 29.
situation as being ‘a glass half-full’ despite ASEAN’s misgivings as to the far-
reaching effects of human rights. There is sufficient leeway for the AICHR and
civil society to heighten human rights consciousness and protection in time to come.
The important thing is to have a starting point in the AICHR and work hard at its
progressive development. This is the attitude that the Indonesian and Thai AICHR
representatives, Rafendi and Sriprapha, are adopting with regard to their duties –
that they are first and foremost defenders of human rights who are rooted in civil
society.61
Thus far, there is open recognition that civil society expects and is expected to
develop its integral role of fostering human rights in the ASEAN region. While the
drafting process of the Terms of Reference and the choosing of the AICHR
representatives did not always incorporate (or appreciate) a wide range of civil
society views, the persistent and growing presence of civil society is perhaps too
potent for ASEAN to ignore.62 To be sure, ASEAN engagement with civil society
on human rights is a fairly recent phenomenon that will inevitably expand. In
particular, there is a civil society consortium – the Working Group – that has had
an important catalytic-facilitative role in the ASEAN human rights institu-
tionalization process and is now expressly enshrined as a regional stakeholder in
the ASEAN Charter.63
As is well-known, Asia has not had prodigious engagement with human rights,
with the ‘Asian values’ debate of the 1990s propounding precepts such as cultural
relativism/particularism over universalism, socio-economic development over civil-
political rights and democracy, Confucianism over Liberalism, and community
over personal freedom – that continue to colour regional perceptions.64 Such views
have been particularly prevalent in Southeast Asia with Lee Kuan Yew and
Mahathir Mohamed vociferously involved in the polemic.65 It came as a surprise,
therefore, that the ASEAN Foreign Ministers expressly voiced support of the
Vienna Conference and that ASEAN should consider the establishment of an
appropriate regional mechanism on human rights.66 This might have remained a
diplomatic statement if it were not for the efforts of the Working Group that actively
held ASEAN to its promise.67
61 ‘Undermining ASEAN Human Rights Body Will Be Act of Suicide’, IPS, 26 October 2009,
available at: <http://ipsnews.net/news.asp?idnews=48989> (accessed 29 September 2010)
(hereinafter ‘Undermining ASEAN Human Rights Body’); ‘Defending a Region’s Rights Can Be
a Balancing Act’, Bangkok Post, 14 October 2009.
62 Tan, op. cit. (note 1), pp. 239–55.
63 ASEAN Charter, Annex 2, para. V.
64 Much of the ‘Asian values’ furore intensified in 1993 amid the Vienna World Conference on
Human Rights and the Asian regional meeting in Bangkok running up to the Vienna Conference.
65 See above note 45.
66 Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore, 23–24 July 1993, paras
16–17.
67 The present discussion will be limited to the essential issues where the Working Group contributed
to regional human rights institutionalization. A more comprehensive analysis of the 15-year
engagement is available in Tan, op. cit. (note 4).
From its inception in 1995, this coalition of academics, lawyers, parliamentarians
and NGO representatives has been engaging ASEAN officials.68 Its founding
members include Carlos Medina, the incumbent Secretary-General of the Working
Group and Executive Director of the Ateneo Human Rights Center of the Ateneo
de Manila University; Vitit Muntarbhorn; and Marzuki Darusman, the former
Attorney-General of Indonesia and current UN Special Rapporteur on the
Situation of Human Rights in Democratic People’s Republic of Korea.69 The
Working Group was intended to be a non-partisan civil society group representing
the various sectors of society to call ASEAN to account for its 1993 promise to
consider the establishment of an appropriate regional mechanism on human rights
in support of the Vienna Declaration and Programme of Action.70 To that end,

and since it was the first human rights NGO of its kind advocating for a regional
human rights mechanism, the Working Group tested the waters of ASEAN
receptivity to human rights through invitations for mutual engagement and
discussion.
This confidence-building process was painstaking with occasional inroads made.
For instance, in the beginning, ASEAN states tended to send junior officials without
much experience in human rights to meetings with the Working Group. 71 This
attitude had changed by 2000 when there was the express support of senior ASEAN
officials and their participation.72 Another sign of progress was observed when the
ASEAN Foreign Ministers for the first time publicly commended the Working
Group at the 31st AMM and continued to do so thereafter.73 Nonetheless, these
talks did not yield results until the Working Group began to organize annual
Workshops for an ASEAN Human Rights Mechanism together with the host
ASEAN state and its national human rights institution (‘NHRI’) to put forward
substantive proposals in line with ‘ASEAN Vision 2020’74 that ASEAN could adopt
for its promised institution.75
68 ‘Working Group for an ASEAN Human Rights Mechanism’, available at: <http://www.
aseanhrmech.org/aboutus.html> (accessed 13 September 2010).
69 Marzuki Darusman has also led the independent UN investigation into the assassination of former
Pakistani Prime Minister Benazir Bhutto and will lead the UN panel on investigating the alleged
war crimes committed in Sri Lanka during the civil war.
70 Joint Communiqué of the 26th ASEAN Ministerial Meeting Singapore, 23–24 July 1993, para.18.
72 Joint Communiqué of the 33rd ASEAN Ministerial Meeting, Bangkok, Thailand, 24–25 July
2000, para. 33.
73 Joint Communiqué of the 31st ASEAN Ministerial Meeting, Manila, Philippines, 24–25 July 1998,
para. 28. Subsequent AMM joint communiqués can be found online at: <http://www.aseansec.
org/19471.htm> (accessed 13 September 2010).
74 The ‘ASEAN Vision 2020’ is the collective aspiration that the region has in terms of political
stability, economic development and socio-cultural cohesiveness. While it does not explicitly
mention human rights, the rights element has been understood to be implicit in the building of
‘a community of caring societies’. See ASEAN Vision 2020, available at: <http://www.aseansec.
org/1814.htm> (accessed 13 September 2010).
75 To date, eight Workshops have been hosted in Indonesia, Malaysia, the Philippines, Thailand and
Singapore: see the Working Group’s website at: <http://www.aseanhrmech.org/conferences/
The first Workshop convened in 2001 jointly by the Indonesian Foreign Ministry,
KomnasHam (‘the Indonesian NHRI’) and the Working Group addressed
ASEAN’s prior proposition that the Working Group table an appropriate regional
rights mechanism for ASEAN’s consideration.76 Studying the various international
and regional mechanisms, the Working Group asked ASEAN to consider seven
models that could ensure similar standards of protection: (1) a Commission; (2) a
Commission and Court; (3) a Court; (4) a Commission and a Committee of Ministers
or Assembly of Head of Governments; (5) a Commission, Court and a Committee
of Ministers or Assembly of Head of Governments; (6) a network of regional NHRIs;
and (7) the promotion of regional human rights activities.77 Despite its officials’
willingness to consider the establishment of a regional human rights mechanism,

ASEAN was unprepared to discuss such ‘revolutionary’ systems. Thus, the Second
Workshop merely encouraged further dialogue and cooperation among ASEAN,
NHRIs, the ASEAN-ISIS network of think tanks and other civil society groups
towards the establishment of an ASEAN human rights commission.78 To strengthen
further the internal impetus for human rights and minimize regional aversion
to external pressure on human rights, the Workshop also recommended the
establishment of national working groups. In view that all ASEAN states had ratified
the Conventions on the Elimination of All Forms of Discrimination against Women
(‘CEDAW’) and the Rights of the Child (‘CRC’), the Working Group proposed on
the basis of this common ground that ‘pending the establishment of the ASEAN
Human Rights Commission, an ASEAN Commission for the protection of women’s
and children’s rights be created’. It also advocated the setting up of thematic task
forces to address migrant labour, human trafficking, internal conflict and terrorism.79
While agreeing with the importance of these goals, ASEAN was as yet unready
to bring them to fruition, necessitating a permutation of these themes – improving
networks among regional human rights stakeholders; public education; the creation
of more NHRIs and national working groups; the development of rights protection
for women, children, migrant workers and other vulnerable groups; and the linking
of human rights with the fulfilment of ASEAN development plans – to be discussed
index.html> (accessed 13 September 2010). As Singapore does not have an NHRI, the Workshop
was hosted by the Working Group, Singapore Ministry of Foreign Affairs, MARUAH and the
Singapore Institute of International Affairs. See the Singapore Institute of International Affairs’
website at: <http://www.siiaonline.org/?q=events/7th-workshop-human-rights-mechanism-
asean> (accessed 13 September 2010).
76 ‘ASEAN Charter Drafted: Human Rights Body Expected to be One of the Organs’, 21 November
2007, available at: <http://www.aseanhrmech.org/news/asean-charter-drafted-human-rights-
body.html> (accessed 13 September 2010).
77 Summary of Proceedings for the 1st Workshop for an ASEAN Regional Mechanism on Human
Rights, Jakarta, 5–6 July 2001, para. 12(l), available at: <http://www.aseanhrmech.org/
downloads/1st_Workshop_Jakarta_Summary.pdf> (accessed 13 September 2010).
78 Summary of Proceedings for the 2nd Workshop for an ASEAN Regional Mechanism on Human
Rights, Manila, 14–15 June 2002, paras 13 and 17, available at: <http://www.aseanhrmech.org/
downloads/Second%20Workshop%20Summary.pdf> (accessed 13 September 2010).
and updated at every subsequent Workshop.80 It seemed that ASEAN was content
to continue indefinite discussion with the Working Group without actual imple-
mentation of any of its proposals. The turning point in 2004 came somewhat as a
surprise when ASEAN unveiled its Vientiane Action Programme (‘VAP’), the
regional bloc’s six-year plan of regional development from 2004 to 2010 for the
three ASEAN pillars of the Security, Economic and Socio-Cultural Communities.
The VAP was ASEAN’s first express avowal to implement human rights objectives
and it practically adopted wholesale the Workshop recommendations of estab-
lishing a women’s and children’s rights commission, greater protection of migrant
workers, better information and best practices sharing, networks and public
education.81
While there was no acknowledgement of the Working Group’s obvious
contributions to this framework through the facilitation of regional workshops, the
Working Group recognized the implicit endorsement that ASEAN had given it
through the latter’s adoption of the VAP human rights initiatives. Moreover,
ASEAN had specifically requested the Working Group to help it realize its VAP
human rights objectives.82 This positive change in the level of ASEAN’s acceptance
of the Working Group and its human rights agenda was largely attributed to years
of regular engagement by the Working Group with state officials using the ‘step-
by-step’ confidence-building modality during discussions.83
However, such efforts did not progress far. By December 2005 discussions for
the ASEAN Charter began and talks concluded at the signing of the Kuala Lumpur
Declaration in November 2007.84 The drafting of the ASEAN Charter was a
painstaking state-level (it is believed that there was no non-state involvement)
process with debates over many issues – chief among which were human rights and
democracy, decision-making based on majority voting and sanctions for rule-
breakers.85 In fact, the Eminent Persons Group tasked to ‘examine and provide
practical recommendations on the directions and nature of the ASEAN Charter
relevant to the ASEAN Community’ had earlier omitted specific advice on human
rights as it was deemed too contentious.86 However, the High Level Task Force
80 The detailed agenda of every workshop can be viewed online at: <http://www.aseanhrmech.org/
conferences/index.html> (accessed 13 September 2010).
81 Vientiane Action Programme, paras 1.1(ii), 1.1.4, Annex 1, available at: <http://www.aseansec.
org/VAP-10th%20ASEAN%20Summit.pdf> (accessed 13 September 2010).
82 ‘Working Group and ASEAN to Work Together to Promote Human Rights’, available at:
<http://www.aseanhrmech.org/news/work-together-to-promote-human-rights.html> (accessed
13 September 2010).
84 Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, adopted 12 December
2005, available at: <http://www.aseansec.org/18030.htm> (accessed 13 September 2010).
85 ‘Proposed Sanctions in ASEAN Charter Dropped, Diplomat Says’, GMA News TV, 27 March
2007, available at: <http://www.gmanews.tv/story/35951/> (accessed 13 September 2010).
86 T. Chalermpalanupap, ‘In Defence of the ASEAN Charter’, in T. Koh, R. Manalo and W. Woon
(eds), The Making of the ASEAN Charter, Singapore: World Scientific Publishing, 2009, p. 117 at
p. 127.
drafting the Charter, as guided by the ASEAN Foreign Ministers, had article 14
on the establishment of the ASEAN human rights body inserted, to the surprise of
international and regional observers.87
While little has been disclosed as to how article 14 came about, the author
surmises that the stronger human rights proponent states in ASEAN had supported
this agenda and ultimately won its insertion in the Charter. It is likely that with
human rights terminology already appearing in official ASEAN documents like the
VAP, and with ASEAN’s aspiration to become a formal international organization
with legal personality and adhering to the rule of law, ASEAN’s express avowal to
promote and protect human rights was necessary for its legitimacy and credibility,
especially when compared to other international and regional organizations which

had already enshrined such promises.
As discussed above, the result of article 14 of the ASEAN Charter has been the
TOR, Cha-Am Hua Hin Declaration and the human rights provisions in the
Political-Security and Socio-Cultural Community Blueprints. While general civil
society engagement in the drafting of these ASEAN documents was minimal, it
must be remembered that the Working Group had a significant, if indirect,
influence on the human rights provisions of the two Blueprints as these were
essentially a reproduction and elaboration of the VAP human rights clauses which
ASEAN now wanted to realize by 2015 because what was undertaken in the VAP
was, to a large extent, unachieved. The CSR undertaking in the Socio-Cultural
Community Blueprint was, however, a new addition to the ASEAN human rights
agenda.
Next steps: persistent engagement and insistent

persuasion by the Working Group
Despite the obvious flaws inherent in the present ASEAN human rights system,
one may continue to believe that the establishment of the AICHR is a positive step
for human rights and that the Working Group through its years of engagement has
facilitated this move. While it might seem that in the overall ASEAN architecture
the Working Group has had only a small impact – that its contribution to regional
human rights was indirectly through the VAP and subsequently the two Blueprints,
and it had no direct part to play in ASEAN’s process of transformation through its
Charter – it must be remembered that on its own, without external impetus or
regular engagement, ASEAN might not even have had such a regional rights
system. ASEAN continues to be strongly state-centric and it is to the Working
Group’s credit that through more than a decade of engagement with ASEAN, it
has allowed human rights consciousness to pervade the regional psyche, consider
and eventually establish a regional mechanism, take up some of the Working
Group’s policy proposals, and recognize the Working Group as an official
stakeholder with which ASEAN would engage with on human rights matters in
87 Ibid, p. 126.
the region. It is by no means a guarantee that ASEAN would take up every
suggestion of the Working Group in developing the AICHR into one that upholds
international standards, but it is, in the ASEAN context, a considerable step
forward in ASEAN-non-state actor relations.
To that end, it is notable how the Working Group has streamlined its proposals
from the more ideological ones in 2001, to more practical ones in subsequent years.
These measures respect ASEAN exigencies and modus operandi while simultaneously
recommending specific steps towards advancing regional human rights. This marks
a departure from the more ambitious proposals submitted in the earlier years. The
Working Group’s change of tack in taking intermediate steps towards the end goal
has merited much success. ‘Soft’ engagement approaches have obviously disposed
themselves more amenably to ASEAN member states as national sovereignty is less
affronted. Moreover, promoting a less adversarial form of an ASEAN human rights
body has enabled the Working Group to influence ASEAN human rights initiatives
to a large extent. The VAP proposals such as reviewing existing human rights
mechanisms, the establishment of a network among existing human rights mechan-
isms, human rights public education, and further steps towards the rights of migrant
workers, women and children, mirror the Working Group’s proposals. This is
probably more than a mere coincidence and could be taken as evidence that
persistent amicable dialogue bears fruit in the ASEAN context.
What then is or should be the Working Group’s future direction?88 For the
present, just as the AICHR is working out its Rules of Procedure and Work Plan
for the first three years of operation, the Working Group is similarly working out
its next phase of action in this period of transition. Having quietly and actively
facilitated the establishment of the AICHR, the Working Group intends to ensure
that ASEAN is on track to achieve its human rights aspirations through the AICHR
and the Blueprints by 2015 – the first five-year period of review.89 The annual
workshops co-hosted by the Working Group have been and should continue to be
important to the AICHR-building process as they produce recommendations
which are presented to ASEAN and the foreign ministries. Apart from the
workshops, the Working Group could propose position papers on AICHR
undertakings such as the AICHR Rules of Procedure and the ASEAN Declaration
on Human Rights which the AICHR is mandated to draft. If ASEAN is sincere
about having an inclusive and evolving human rights process, then the proposals
of the Working Group and other civil society organizations should be taken
seriously. Of course, ASEAN has the prerogative to choose whether or not to act
on the Working Group’s (and other non-state actors’) recommendations – it is
inevitable that ASEAN will never concede on areas with which it is not comfortable
– but, as history shows, if the recommendations are often repeated, they have a
88 This discussion is limited to the AICHR institution and not the ASEAN Commission for the
Promotion and Protection of the Rights of Women and Children (ACWC) or the ASEAN
Committee on the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant
Workers (ACMW), which is discussed in Chapters 8 and 9 of this book.
good chance of being incorporated into the ASEAN human rights agenda in the
future.
In the longer term, given that the AICHR does not have a convention,
independent commission or court, nor a strong tie with the key international human
rights treaties – and given that these were specifically propositioned by the Working
Group to ASEAN during the drafting of the TOR90 – continued engagement on
these issues is likely to be a priority. The Working Group has always aspired that
the AICHR be comparable to other regional human rights systems and that it
unfailingly uphold international human rights protections. It is too early to predict
how the Working Group might pursue this agenda, as much would depend on how
the AICHR representatives promote and protect human rights in their first term
of office, how human rights awareness and empowerment is conceived of by the
ASEAN people, and ultimately how ASEAN states acclimatize themselves to
operating in a new environment where human rights will contend with sovereignty.
One may observe that having had a long history of engagement with ASEAN
and with its formal recognition as a stakeholder in the ASEAN human rights
development process, the Working Group might perhaps hold greater credit with
ASEAN than other regional non-state actors working on human rights. This
favourable status is undoubtedly useful as it opens channels for the Working Group
to engage ASEAN governments and various ministries, but it is also a double-edged
sword as, coupled with its ‘soft’ engagement style, the Working Group could be
perceived as being biased in favour of the ASEAN position and not insisting upon
the requisite standards of human rights protection. Hence, as the AICHR begins
its work, the Working Group and its national chapters should continue to work
with the NHRIs, other civil society organizations and other ASEAN human rights
stakeholders for the upholding of international human rights standards whilst
engaging ASEAN. This is not only for the sake of the Working Group’s legitimacy
but also for the overall plurality and openness of the ASEAN human rights
development process.
90 Tan, op. cit. (note 1), pp. 242–3.

8 ASEAN: setting the
agenda for the rights
of migrant workers?
Susan Kneebone1
Introduction
This chapter considers whether ASEAN is emerging as a regional leader in setting
norms and creating institutions for human rights protection throughout the Asia-
Pacific, with a focus on the rights of migrant workers. In 2007, the ASEAN Charter
was signed, and the Declaration on the Protection and Promotion of the Rights
of Migrant Workers was created.2 Article 22 of the Declaration on the Rights of
Migrant Workers required ASEAN to develop an ASEAN instrument on the
protection and promotion of the rights of migrant workers. While the ASEAN
Intergovernmental Commission on Human Rights (‘AICHR’) has been created
pursuant to article 14 of the Charter,3 progress in developing an instrument on
migrant workers rights appears to be slow. This chapter explains the current
situation, in which the main thrust for reform appears to come from bodies outside
of formal ASEAN mechanisms. This analysis enables implications and conclusions
to be drawn about the model of regionalism that ASEAN represents.
There are indications in the ASEAN Charter that ASEAN was intended to have
a lead role in norm setting and in the creation of new institutions. The preamble
to the Charter refers to the member states’ commitment to ‘[a]dhering to principles
of democracy, rule of law, good governance, respect for and protection of human
rights and fundamental freedoms’. Article 41.3 of the Charter states that ASEAN
shall ‘be the primary driving force in regional arrangements that it initiates and
maintain its centrality in regional cooperation and community building’. One
commentator has suggested that:
1 The author gratefully acknowledges the support of the Australian Research Council, the
Asia Research Institute, National University of Singapore, the research assistance of Zoe
Jones and Fiona Ransom, and helpful comments from Tan Hsien-Li in the preparation of this
chapter.
2 ASEAN, Declaration on the Protection and Promotion of the Rights of Migrant Workers,
Philippines, 2007, available at: <http://www.aseansec.org/19264.htm> (accessed 3 September
2010) (‘Declaration on the Rights of Migrant Workers’).
3 In addition to this, the ASEAN Commission on the Promotion and Protection of the Rights of
Women and Children (ACWC) was formally inaugurated on 7 April 2010.
ASEAN: setting the agenda for the rights of migrant workers? 145
[T]he Charter helps ASEAN move from an almost purely political relationship
towards relationships in which there are legitimate expectations that arise from
repeated interactions, shared principles and purposes, and norms, as well as
stronger regional processes and institutions that will foster compliance by the
member countries to their promises and obligations.4
Yet, as has been pointed out, unlike the European Union, ASEAN does not require
its member states to have a ‘functioning pluralistic democracy with a good record
on human rights’.5 This leads to a certain ambivalence in ASEAN’s role in setting
norms and creating institutions for the protection of migrant workers.
On the one hand, ASEAN has established new structures and institutions to
govern this issue, but on the other it is wary of prescribing standards for protection.
That is, it is strong on creating formal mechanisms, but often these are without
‘teeth’. Further, the fact that ASEAN has entered into a relationship with the
International Labour Organization (‘ILO’) on these issues is a significant feature
of its approach.
ASEAN appears caught between member states, civil society and international
organizations in its transnational and regional relations in dealing with the serious
human rights abuses affecting migrant workers. The reality is that issues about
migrant or ‘foreign’ workers (as they are termed in the region) raise perceived6 and
real7 political and security implications which appear to outweigh the ‘human
security’ dimension.8
This chapter examines the approach of the ILO on issues relating to migrant
workers in international and regional contexts. This requires an understanding of
the international normative framework for migrant rights. The chapter then
explains efforts to create a ‘caring and sharing community’ by ASEAN and its
relevance to migrant workers rights, as well as new institutions and instruments
4 S. Tay, ‘The ASEAN Charter: Between National Sovereignty and the Region’s Constitutional
Moment’, Singapore Year Book of International Law 12, 2008, p. 151 at p. 169. Contrast Tan H.-L.,
‘The ASEAN Human Rights Body: Incorporating Forgotten Promises for Policy Coherence and
Efficacy’, Singapore Year Book of International Law 12, 2008, pp. 239–355.
5 T. Chalermpalanupap, ‘Institutional Reform: One Charter, Three Communities, Many
Challenges’, in D. Emmerson (ed.), Hard Choices: Security, Democracy, and Regionalism in Southeast Asia,
Washington DC: Brookings Institution Press, 2008, p. 109.
6 S. Samydorai and P. Roberstson (eds), Civil Society Proposal: ASEAN Framework Instrument on the
Protection and Promotion of the Rights of Migrant Workers, 2009, p. 10, available at: <http://www.
workersconnection.org> (accessed 3 September 2010); M. Caballero-Anthony, ‘Reflections on
Managing Migration in Southeast Asia: Mitigating the Unintended Consequences of
Securitisation’, in M. Curley and W. Siu-lun (eds), Security and Migration in Asia: the Dynamics of
Securitization, Abingdon: Routledge, 2008, p. 165.
7 A. Hapsari, ‘Hundreds of Indonesians on Death Row in Malaysia’, Jakarta Post, 21 August 2010,
available at: <http://www.thejakartapost.com/news/2010/08/21/hundreds-indonesians-death-
row-malaysia.html> (accessed 3 September 2010).
8 A. Edwards and C. Ferstman, ‘Humanising Non-Citizens: the Convergence of Human Rights
and Human Security’, in A. Edwards and C. Ferstman (eds), Human Security and Non-Citizens: Law
Policy and International Affairs, Cambridge: Cambridge University Press, 2010, p. 3.
which have been created to deal with migrant workers’ rights. The chapter
concludes with observations about ASEAN as a regional leader in this context.
The dynamics of labour migration in Southeast Asia

There is no doubt that labour migration is one of the most important global issues
today. It is estimated that worldwide, the number of people living outside their
country of origin is 214 million.9 The majority leave their place of birth because
they are unable to earn a living and because there is a demand for their labour
elsewhere.10 There is an increase not only in the number of persons migrating
internationally, but also in the complexity of the patterns of such migration.

Patterns are often ‘repeat’, ‘circular’ or ‘temporary’ and include ‘regular’ (legal)
and ‘irregular’ (illegal) migration.
These patterns are replicated within Southeast Asia and the ASEAN region. It
has been suggested that the growth of cross-border movements is one of the more
‘remarkable dimensions’ of the transformation of East Asia and Southeast Asia in
the last three decades, resulting from an imbalance in the growth of economies in
the region.11 Since the 1990s the destination of migrant workers has shifted from
the Middle East to intra-regional flows, with an increase in temporary migration.
This movement is dominated by semi-skilled and unskilled workers.12
It has been estimated that within the ASEAN countries, 1.5 million persons leave
home each year to work abroad.13 The increasingly important role of migrant
workers within the region was recognized in the 2007 ASEAN Declaration on
Rights of Migrant Workers. It is estimated that 5 million of 13.5 million workers
from ASEAN member states are working in other ASEAN countries.14 This trend
is likely to increase, propelled by differentiated economic and demographic growth
9 International Council on Human Rights Policy, Irregular Migration, Migrant Smuggling and Human
Rights: Towards Coherence, 2010, p. 11, available at: <http://www.ichrp.org/files/reports/56/
122_report_en.pdf> (accessed 3 September 2009).
10 Global Commission on International Migration, ‘A World of Work: Migrants in a Globalizing
Labour Market’, in Migration in an Interconnected World: New Directions for Action, 2005, available at:
<http://www.gcim.org> (accessed 3 September 2010).
11 M. Abella, ‘Labour Migration: Trends, Issues and Prospects’, in IOM, Situation Report on
International Migration in East and South East Asia: Regional Thematic Working Group on
International Migration including Human Trafficking, 2008 (IOM Situation Report 2008),
p. 139.
12 P. Wickramasekera, ‘Asian Labour Migration: Issues and Challenges in an Era of Globalization’,
International Migration Papers 57, 2000.
13 ASEAN, Labour and Social Trends in ASEAN 2008: Driving Competitiveness and Prosperity
with Decent Work, ILO Regional Office for Asia and the Pacific, Bangkok, 2008.
14 ASEAN Secretariat, ‘ASEAN Seeks to Protect and Promote Migrant Workers Rights’, TFAMW
Migrant Workers’ Connection, 20 July 2010, available at: <http://www.aseanmigrant.org/
articles.php?more=132> (accessed 24 August 2010). Cf International Labour Organization, Labour
and Social Trends in ASEAN 2007: Integration. Challenges and Opportunities, Bangkok: International
Labour Office, 2007, para 6.1, available at: <http://www.ilo.org/public/english/region/asro/
bangkok/library/download/pub07-04.pdf> (accessed 3 September 2010).
and closer economic integration within ASEAN.15 In Singapore and Malaysia,
foreign labour currently constitutes 30 per cent of the total labour force.
A significant feature of contemporary labour migration within the Southeast
Asia region is that it comprises a high percentage of women working in the domestic
sector who are not covered by labour laws.16 In 2008 the ILO estimated that 161
million workers, or about 60 per cent of the ASEAN workforce, were ‘vulnerable’,
with a larger share of women (65 per cent) than men (56 per cent) falling into this
category, indicating that women tend to have more limited employment oppor-
tunities.17 Moreover, irregular migration amounts to 40 per cent of total migratory
movements in Southeast Asia, which may indicate that demand for migrant labour
exceeds regular channels available under state migration policies.18 Such persons,
also known as ‘undocumented’ migrants, are most at risk of exploitation and
trafficking.19
An increase in the incidence of trafficking is regarded as an important factor in
highlighting the labour migration issue in the region.20 As one ILO representative
has expressed:
Trafficking has emerged as a global theme contextualizing migration in a

framework of combating organized crime and criminality, subordinating
human rights to control and anti-crime measures.21
However, until recently, comparatively less attention has been given to labour
migration than to trafficking, even though it too involves human rights abuses.
Investigations and reports prepared by national and international NGOs have
documented the abuses suffered by domestic and other workers throughout the
different stages of the migration process.22
15 ILO, ibid, 54.

16 A. Kaur, ‘International Labour Migration in Southeast Asia: Governance of Migration and
Women Domestic Workers’, Intersections: Gender, History and Culture in the Asian Context 15, 2007,
para. 22, available at: <http://intersections.anu.edu.au/issue15/kaur.htm> (accessed 29
September 2010).
17 ASEAN, op. cit. (note 13).
18 G. Battistella, ‘Unauthorised Migrants as Global Workers in ASEAN’, paper presented at the
IUSSP Regional Population Conference on Southeast Asia’s Population in Changing Asian
Context, Chulalongkorn University, Bangkok, Thailand, 10–12 June 2002.
19 IOM Situation Report 2008, op. cit. (note 11), p. 37.
20 J. Nafziger and B. Bartel, ‘The Migrant Workers’ Convention: Its Place in Human Rights Law’
International Migration Review 25, 1991, p. 771.
21 P. Taran, ‘Human Rights of Migrants: Challenges of the New Decade’, International Migration 38
(6), 2001, p. 7, p. 8.
22 Human Rights Watch, ‘Letter to Governments of Malaysia and Indonesia’, Human Rights Watch,
15 April 2006, available at: <http://hrw.org/english/docs/2006/04/14/malays13184_txt.htm>
(accessed 13 November 2007); TF-AMW, ‘Malaysian National Consultation Statement’, 15
August 2008, 60; TF-AMW, ‘Singapore National Consultation Statement’ 29 April 2009, 75,
both available at: <http://www.workersconnection.org/downloads.php?RCID=3> (accessed
3 September 2010); see also Samydorai and Roberstson (eds), op. cit. (note 6).
An important aspect of ASEAN’s response is that until recently it has largely
focused on anti-trafficking measures, particularly regarding women and children.
For example, the 1997 ASEAN Declaration on Transnational Crime and the 2004
ASEAN Declaration against Trafficking in Persons, Particularly Women and
Children demonstrate a commitment to join the regional anti-trafficking com-
munity. By comparison, labour exploitation continues to be seen through a political
and security paradigm, even though it is now well recognized in Southeast Asia
that there is a link between labour migration and exploitation.23
Labour migration and human rights: the international

framework
This section considers the nature of the rights that are accorded to labour migrants
under international law, and the specific international instruments that have been
created to protect this category of migrants. It also describes the ILO’s role in the
region. This will enable an evaluation to be made of ASEAN instruments and
measures adopted in relation to labour migrants, and of the significance of ASEAN’s
relationship with the ILO.
The normative framework

It is important to recognize that migrants are ‘non-nationals’: their political status
and rights are defined, first, by their lack of connection to the ‘host’ state, and
secondly, by whether they are ‘regular’ or ‘irregular’ migrants. ‘Labour migrant’ is
not a term of art but has been defined as a person ‘engaged in a remunerated activity
in a state of which he or she is not a national’.24 This reinforces their political status.
The Universal Declaration of Human Rights25 (‘UDHR’) outlines basic human
rights which apply to all persons (including migrants) irrespective of their status.
These include the right to be free from slavery, and the right to non-discrimination
and equal protection of the law.26 These rights (and more) are replicated in the
ICCPR27 as ‘non-derogable’ rights which apply to national and non-nationals, and
regular or irregular migrants alike.28 Other non-derogable rights include the right
to life,29 which, in practical terms, for many people in Southeast Asia means the
right to work and the right to earn a decent living.
23 S. Kneebone and J. Debeljak, ‘Combating Transnational Crime in the Greater Mekong

Subregion: The Cases of Laos and Cambodia’, in L. Holmes (ed.), Trafficking and Human Rights:
European and Asia Pacific Perspectives, Cheltenham: Edward Elgar, 2010, p. 133.
24 International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, 2220 UNTS 3 (entered into force 1 July 2003) (‘ICRMW’), art. 2.1.
25 GA Res. 217 A (III) (1948) (‘UDHR’).
26 Articles 5 and 7, respectively.
28 Ibid, arts 7, 8.1, 8.2, 11, 15, 16, 18.
29 Ibid, art. 6.
Some of the basic UDHR rights relate directly to the right to work.30 These
include: the right to freedom of association; the right to social security; the right to
work, to free choice of employment, to just and favorable conditions of work and
to protection against unemployment;31 the right to form and join a trade union;
and the right to reasonable working hours.32 Thus these rights include not only the
basic ‘right to work, to free choice of employment’, but also what could be termed
‘labour rights’.33
In relation to deliberate state policies on the part of both origin and host countries
in Southeast Asia, which encourage people to migrate to work, the ICCPR includes
the right to leave one’s country,34 although the right to move is qualified by security
considerations35 and there is no obligation on other states to admit non-nationals

who have no claim to refugee or human rights-based protection. For many labour
migrants there is, however, no real ‘choice’ concerning their movement.
As a result of the developments described below there are, as stated by Battistella,
‘two different but related perspectives: the human rights and the labour per-
spective’.36 Importantly, the ILO approach promotes both sets of rights.
Migrant workers’ rights instruments

There are three major instruments which specifically govern the rights of migrants,
and which are additional to the general human rights instruments described above.
Two were created by the ILO.37 The third, the 1990 International Convention on
the Protection of the Rights of All Migrant Workers (‘ICRMW’)38 is often described
as a response to the inadequacy of the ILO Conventions and is seen to compete
for primacy with the ILO instruments. It seeks to ensure the human rights of all
migrant workers, but has a poor ratification rate.39
There is an important difference between the ILO and UN Conventions; the
former are non-binding instruments. A key feature of the way that the ILO works
30 Many of these rights are contained in the International Covenant on Economic, Social and Cultural Rights,
99 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’). See arts 1.2, 3, 6, 7, 8.
31 Ibid, arts 20, 22, 23.
32 Ibid, arts 23, 24.
33 P. Alston, ‘Labour Rights as Human Rights: The Not So Happy State of the Art’, in P. Alston
(ed.), Labour Rights as Human Rights, Oxford: Oxford University Press, 2005, p. 3. Some recent
scholarship questions whether labour rights are ‘best promoted under the rubric’ of human rights.
34 Ibid, art. 12.2.
35 Ibid, art. 12.3. See C. Harvey and P. Barnidge, ‘Human Rights, Free Movement, and the Right
to Leave in International Law’ International Journal of Refugee Law 19, 2007, p. 1.
36 G. Battistella, ‘Migration and Human Rights: The Uneasy but Essential Relationship’, in
R. Cholewinski, P. De Guchteneire and A. Pecoud (eds), Migration and Human Rights: The United
Nations Convention on Migrant Workers’ Rights, Cambridge: Cambridge University Press, 2009, p. 52.
37 The Migration for Employment Convention, ILO C097 (entered into force 22 January 1952) and
the Migrant Workers (Supplementary Provisions) Convention, ILO C143 (entered into force
9 December 1978) are the main ILO instruments protecting migrant workers.
38 ICRMW, op. cit. (note 24).
39 To date 41 countries have ratified the Convention.
is an emphasis on the use of its standards to provide ‘a non-binding framework,
which recognizes the sovereign right of all nations to determine their own migration
policies’.40 Philip Alston has commented that ‘[t]he ILO remains tied to state-
centric models of the international legal order, in which social progress requires
voluntary action by the state’.41
In 1949, at the conclusion of the Second World War and with a renewed interest
in economic development,42 the ILO’s Migration for Employment Convention
(Revised), No. 97 was created. This Convention provides standards for labour
migration from, entry to return, for regular migrant workers, and conditions gov-
erning their recruitment. By contrast the 1975 ILO Migrant Workers (Supple-
mentary Provisions) Convention, No.143 applies to both regular and irregular

migrant workers. It reflected concerns about the plight of irregular migrant workers
at that time. Part II of the Convention went beyond existing human rights
instruments by providing for protection against loss of employment, free choice in
occupation43 and equal treatment with nationals for those lawfully resident. Part
III provides that basic economic and social rights apply to all migrant workers.
Despite the breadth of its provisions, working against Convention No. 143 was
its length and the fact it was seen to be in competition with UN initiatives. For exam-
ple, in the same year as it was created (1974), a competing UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities published a report on
Exploitation of Labour Through Illicit and Clandestine Trafficking. This concern
with migrant workers which dates from 1972 led eventually to the 1990 ICRMW.44
The significance of the ICRMW is that it was the first instrument to codify the
rights of migrant workers,45 whereas the ILO Conventions dealt only with aspects
of the problem. However, opinion is divided as to whether the ICRMW advances
the protection of migrant workers beyond pre-existing human rights norms.46 The
Preamble to the ICRMW specifically picks up the ILO Conventions and other
human rights instruments. In addition, it broadens the scope of the non-discrimi-
nation principle to include ethnicity, nationality, economic position and marital
40 International Labour Organization, Multilateral Framework on Labour Migration: Non-Binding

Principles and Guidelines for a Rights-Based Approach to Labour Migration, Geneva:
International Labour Office, 2006, p. vi.
41 Alston, op. cit. (note 33), p. 15.
42 P. De Guchteneire and A. Pecoud, ‘Introduction: the UN Convention on Migrant Workers’
Rights’, in Cholewinski, De Guchteneire and Pecoud (eds), op. cit. (note 36), p. 7.
43 Migrant Workers (Supplementary Provisions) Convention, op. cit. (note 37), arts 8, 14A.
44 For an account of the process see Battistella, op. cit. (note 36).
45 J. Lonnroth, ‘The International Convention on the Rights of All Migrants in the Context of
International Migration Politics: An Analysis of Ten Years of Negotiations’, International Migration
Review 25, 1991, p. 710 at p. 735.
46 Nafziger and Bartel, op. cit. (note 20), p. 775. The authors argue that the Convention ‘seeks to
expand rather than supplement or substantially modify existing rights of migrant workers’. Part
III of ICRMW recognizes the basic core rights of all migrant workers to liberty and security of
person (art. 16), protection by law (art. 9), freedom from torture (art. 10), freedom of thought,
conscience and religion (arts 12, 13), freedom to leave a country including the country of origin
(art. 8) and privacy (art. 14).
status. Articles 1 and 7 specifically exclude discrimination on the basis of an exten-
sive but inclusive list.47 One commentator has suggested that the notion of non-
discrimination has the status of a peremptory norm or jus cogens.48 However, the
inclusive definition of discrimination in the ICRMW does not include immigration
status, thus allowing discrimination on this ground.
The provisions of Part III of the ICRMW (which apply to all migrant workers)
reflect the problems and issues they face.49 In addition, the ICRMW grants all
migrant workers equality of treatment with nationals before the courts as well as
in relation to remuneration and conditions of employment,50 social security, basic
medical care, and in terms of access for their children to basic education.51 The
Convention thus covers both labour and social and economic rights.
However, there is one aspect of the Convention which suggests that it was a
compromise in favour of state sovereignty: namely, that the Convention supports
a hierarchy of rights. Part IV outlines additional rights which are applicable only
to documented migrant workers, or migrant workers in permanent situ, and
members of their families. One of the additional protections to which regular
migrants are entitled includes greater rights in relation to trade unions under article
40 which provides a right to form associations and trade unions.
Bosniak suggests that the distinction between regular and irregular migrants
reflects both the competing agendas of states and workers and a reluctance to
interfere with the notion of state sovereignty in terms of admission of aliens, or
composition of communities.52 As Lonnroth points out, the Migrant Workers
(Supplementary Provisions) Convention was considered problematic by some
states, due to the insufficient distinction between illegal and legal migration.53 States
believed that the failure to adequately distinguish between illegal and legal
migration could actually encourage illegal migration. Importantly the last provision
in ICRMW Part III (which applies to all migrants), article 35, specifically provides
that nothing in Part III is to imply ‘the regularization of the situation of’ undocu-
mented migrant workers or their families. Other provisions in the ICRMW stress
47 Notably, they each refer to ‘sex, race, colour, language, religion or conviction, political or other
opinion, national, ethnic or social origin, nationality, age, economic position, property, marital
status, birth or other status’ (own emphasis).
48 J. Fitzpatrick, ‘The Human Rights of Migrants’, paper presented at the Conference on
International Legal Norms and Migration, Geneva, 23–25 May 2002, p. 3.
49 For example, ICRMW prohibits arbitrary deprivation of property (art. 15), destruction of identity
documents (art. 21), collective expulsion (art. 22), and the rights to diplomatic contact with the
authorities of their state of origin (art. 23), to participate in trade union activities (art. 26), respect
for cultural identity (art. 31), the right to register the birth of a child (art. 29), to transfer earnings
(art. 32), and to be informed of rights (art. 33) that apply to all migrant workers.
50 ICRMW, op. cit. (note 24), arts 18, 25.
51 Ibid, arts 26, 28, 30.
52 L. Bosniak, ‘Human Rights, State Sovereignty and the Protection of Undocumented Migrants
under the International Migrant Workers Convention’, International Migration Review 25, 1991,
p. 737.
53 Lonnroth, op. cit. (note 45).
that the Convention is not intended to infringe on a state’s power to govern admis-
sion of migrant workers to their territory.54 In assessing the ICRMW, Bosniak
ultimately concludes, ‘despite its laudable protective provisions, the Convention’s
treatment of undocumented migrants is deeply ambivalent’.55
In practice, regularization policies for irregular workers have been repeatedly
applied in both Thailand and Malaysia in recent decades. This fact supports
Bosniak’s argument that states are somewhat opportunistic in applying the principle
of sovereignty.
Unsurprisingly, it has primarily been origin countries which have campaigned
for and subsequently ratified the ICRMW.56 Of the host countries, only Malaysia
has ratified the ILO Migration for Employment Convention, covering regular
(legal) migrant workers, and there are no known plans to ratify the ICRMW.
Malaysia’s political climate has generally been hostile to undocumented migrants.57
As has been pointed out, the emphasis in Malaysian policy is on flexibility, rather
than integration of migrant workers.58 At this point in time, no ASEAN country
except the Philippines has ratified both ILO conventions on migrant workers.59
While Indonesia is committed to ratifying the ICRMW, it has not yet done so.
Nevertheless, when it comes to ratifying fundamental ILO Conventions60 that
lay down the core international labour standards or ‘principles’, ASEAN member
states have a much better record.61 These ‘principles’ include freedom of asso-
ciation, freedom from forced labour and from child labour, and non-discrimination
in employment. Thus it appears that within ASEAN, similar to the global com-
munity, there is a lack of consensus on standards for migrant workers (evidenced
54 Migrant Workers (Supplementary Provisions) Convention, op. cit. (note 37), arts 68, 69, 79.
55 Bosniak, op. cit. (note 52), p. 741.
56 Within Asia, only Sri Lanka, the Philippines and Timor-Leste have ratified ICRMW.
57 P. Robertson, ‘Migrant Workers in Malaysia – Issues, Concerns and Points for Action’, 2008,
available at: <http://tp.fairlabor.org/en/migrant-worker-rights-forum/Occasional%20Paper_
Migrant%20Workers%20in%20Malaysia.pdf/view> (accessed 3 September 2010); A. Nah,
‘Struggling with (Il)Legality: The Indeterminate Functioning of Malaysia’s Borders for Asylum
Seekers, Refugees, and Stateless Persons’, in P. Rajaram and C. Grundy-Warr (eds), Borderscapes:
Hidden Geographies and Politics at Territory’s Edge, Borderlines Series Vol. 29, London: University of
Minnesota Press, 2007, p. 35 at p. 37.
58 N. Piper and R. Iredale, ‘Identification of the Obstacles to the Signing and Ratification of the UN
Convention on the Protection of the Rights of All Migrant Workers: The Asia Pacific Perspective’,
APMRN Working Paper 14, Wollongong: University of Wollongong, 2004, pp. 19–20.
59 Within ASEAN only Sabah, a state of Malaysia has ratified Convention No. 97 and no country
has ratified No. 143.
60 These are: Freedom of Association and Protection of the Right to Organise Convention, ILO
C087 (1948); Right to Organise and Collective Bargaining Convention, ILO C098 (1949); Forced
Labour Convention, ILO C029 (1930); Abolition of Forced Labour Convention, ILO C105
(1957); Minimum Age Convention (for admission to employment), ILO C138 (197); Worst Forms
of Child Labour Convention, ILO C182 (1999); Equal Remuneration Convention, ILO C100
(1957); Discrimination (Employment and Occupation) Convention, ILO C111 (1958).
61 ILO, Declaration of Fundamental Principles at Work, adopted at the International Labour
Conference, 86th sess., Geneva, June 1998, available at: <http://www.ilo.org/public/english/
standards/decl/declaration/index.htm.> (accessed 3 September 2010).
by the lack of ratification of ICRMW), while at the same time there is acceptance
of core (non-binding) ILO labour standards. This raises the question whether the
ILO is capable of advancing the profile of human rights of migrant workers within
ASEAN.
ILO and protection of migrant workers in ASEAN: principles

and processes
All ten ASEAN members are members of the ILO, and participate in ILO regional
consultations,62 through the ASEAN Senior Labour Officials Meetings (‘SLOM’)
and the ASEAN Forum on Labour Migration (‘ASEAN Forum’) described below.
Two features of the ILO’s role are relevant to ASEAN’s approach to migrant worker
issues. First, in promoting labour ‘principles’ rather than binding standards, the ILO
attempts to draw a balance between standards and market forces. The language of
a labour market clearly has greater appeal to ASEAN states.63 Secondly, the ILO
works closely with ASEAN states, attempting to create a ‘dialogue’ rather than
engaging in direct action. Overall it employs ‘soft law’ and ‘soft’ dialogue to
influence, rather than direct, change. Finally, it should be noted that the ILO also
promotes human rights.
In relation to migrant workers, the ILO consistently maintains that it is ‘the only
agency with a constitutional mandate to protect’.64 The ILO has attempted to
ensure that the language and concepts it uses to describe migrant workers is
consistent with their basic human rights. For example, the ILO objects to certain
terminology such as describing migrant workers as a ‘commodity’, or their role as
being to fulfil the ‘3 Ds’.65 Similarly, the ILO suggests that female migrant workers
should be denoted as such rather than as ‘female domestic helpers’, and that the
word ‘illegal’ be avoided when referring to irregular migrant workers.66 At the
international level, the ILO promotes its own Conventions to function alongside
the ICRMW’s human rights standards.67
In 1996 an ILO Working Party examined the reasons for non-ratification of its
Conventions. A major factor was an increasing reluctance on the part of states to
enter into multilateral commitments regarding policy on foreigners. It concluded
62 The ILO Regional Office in Bangkok supports work in more than 30 countries in the Asia-Pacific
region, from Afghanistan to the Pacific Islands and from Mongolia to New Zealand. See the
website at: <http://www.ilo.org/asia/offices/lang—en/index.htm> (accessed 3 September 2010).
63 Wickramasekera, op. cit. (note 12).
64 P. Wickramsekara and M. Abella, ‘Protection of Migrant Workers in Asia: Issues and Policies’,
Labour Migration in Asia: Trends, Challenges and Policy Responses in Countries of Origin, Geneva:
International Organization of Migration, 2003, Pt I, ch. 2, p. 63.
65 The ‘3 Ds’ refers to the idea that foreign workers can perform tasks that are ‘dirty, dangerous and
domestic’.
66 Wickramasekera, op. cit. (note 12).
67 See, eg, P. Taran, ‘To be or Not to be Ruled by Law: Migration in the 21st Century and the 1990
International Convention’, paper presented at the workshop in the 8th International Metropolis
Conference, Vienna, 15–18 September 2003.
that government intervention was not actually the best approach to managing the
problems of labour migration.68 Consistent with these conclusions, in Southeast
Asia the ILO promotes the use of bilateral and multilateral agreements between
destination and origin countries, development assistance, tripartite consultations
and agreements between workers’ organizations.69 In addition to promoting its
own standards through this approach, it also promotes ASEAN standards and
processes.70 The ILO’s activities include general awareness raising, as well as
forging relations between trade unions and NGOs. Rather than engage directly
with individual state governments, it attempts to influence through advocacy and
example. Through its regional office in Bangkok, the ILO also conducts regional
meetings to provide a forum for the discussion of various issues and the promotion
of particular agendas.71
Overall the ILO appears to promote dialogue which will lead to acceptance of
international standards, rather than to directly promote acceptance of those
standards as binding. This may be seen as a strategy to ‘sell’ the notion of workers’
rights to states that are traditionally reluctant to accept them,72 and to work
indirectly with states. However, although the ILO has a number of regional projects
on migration,73 involving technical cooperation and capacity building which work
directly with governments on specific issues, no focal point has been established for
migrant worker issues or programmes.
As has been mentioned, the ILO works in close collaboration with ASEAN. On
21 March 2007 a cooperation agreement between the ILO and ASEAN was
enacted to enable ‘the ASEAN and ILO Secretariats to maintain regular con-
sultations on issues and activities of strategic importance to ensure the greatest
possible coordination of activities’.74 Under this agreement the ILO has established
the ASEAN Forum on Labour Migration, the purpose of which is to encourage
dialogue amongst stakeholders on relevant issues, including the implementation of
article 22 of the Declaration on the Rights of Migrant Workers. The Forum is held
annually under the auspices of the Labour Ministers’ Conference: participation is
open to Ministries of Labour, other government departments concerned with
labour migration, trade unions, NGOs and civil society.
The interesting feature of this process is that it involves a transnational ‘con-
versation’ with a broad range of actors. The Task Force on ASEAN Migrant
68 Taran, op. cit. (note 21).

69 G. Hugo, ‘Migration in the Asia-Pacific Region’, paper prepared for the Policy Analysis and
Research Programme of the Global Commission on International Migration, 2005, pp. 46–7.
70 Wickramasekara, op. cit. (note 12), discussing the Regional Tripartite Meeting in Bangkok, 2003.
71 See, eg, ILO Director General’s Report, Realizing Decent Work in Asia, 14th Asian Regional Meeting,
held in Korea, 29 August–1 September 2006, p. 65, available at: <http://www.ilo.org/public/
english/standards/relm/ilc/ilc87/rep-i.htm> (accessed 3 September 2010).
72 Taran, op. cit. (note 67).
73 For information on the various projects, see the ILO website at: <http://www.ilo.org/asia/
whatwedo/projects/lang—en/index.htm> (accessed 16 August 2010).
74 Cooperation Agreement between the ASEAN Secretariat and the International Labour Office, 20 March 2007,
available at: <http://www.aseansec.org/ILO.pdf> (accessed 3 September 2010).
Workers has referred to the ‘constructive’ role of the ILO in organizing the
Forum.75 The ILO’s interaction with ASEAN appears to be having an impact on
institutionalizing dialogue. This is occurring despite the resistance of some member
states to accept changes to the way in which migrant worker issues are dealt with
regionally, as discussed below.
ASEAN and labour migration: one ASEAN, three

communities76
As noted above, article 22 of the Declaration on the Rights of Migrant Workers
refers to the creation of ‘an ASEAN instrument on the protection and promotion
of the rights of migrant workers, consistent with ASEAN’s vision of a caring and
sharing Community’. The purpose of this section is to determine where migrant
workers fit into the ASEAN Community, on the assumption that position matters
in terms of how their rights are conceived under this ‘imagined community’.77
There is ambiguity in the way that the rights of migrant workers are presented
under the new framework.
The ASEAN Charter establishes an ASEAN Community comprising the ASEAN
Political-Security Community (‘ASPC’), the ASEAN Economic Community (‘AEC’),
and the ASEAN Socio-Cultural Community (‘ASCC’). As we shall see, migrant
workers issues appear under both the Political-Security and the Socio-Cultural
Communities. On the surface the Charter appears to represent a break from the
past, whilst still respecting ASEAN’s historical origins. The language of the ‘Asian
values’ debate from the 1990s appears to have been put to one side, whilst still
adhering to some of the underlying concepts such as the importance of non-
confrontational processes. Importantly, whilst the Asian values debate emphasized
cultural diversity as a point of difference with supposed European ‘homogeneity’,
and as a reason for challenging the application of ‘Western’ human rights norms,
the experience of diversity has led to calls for greater unity within ASEAN.
For example, Article 35 of the ASEAN Charter provides that ‘ASEAN shall
promote its common ASEAN identity and a sense of belonging among its peoples
in order to achieve its shared destiny, goals and values’. However, it seems that
unskilled ‘foreign’ workers are not seen as part of ‘ASEAN’s cultural heritage’
despite the historical evidence of use of migrant labour by colonial powers. In this
respect ASEAN does not appear to have progressed beyond the spirit of the 1999
Bangkok Declaration as explained below.
75 Samydorai and Roberstson (eds), op. cit. (note 6), p. 40.

76 This title is borrowed from Chalermpalanupap, op. cit. (note 5), p. 92, who argues that the
‘organisational hardware’ of ASEAN is ‘not up to the task’ of building true communities.
77 Cf J. Van Selm, ‘The Europeanisation of Refugee Policy’, in S. Kneebone and F. Rawlings-Sanaei
(eds), New Regionalism and Asylum Seekers: Challenges Ahead, Oxford: Berghahn Books, 2007, ch. 4.
Van Selm discusses the position of refugee issues under EU policy.
A tale of two Bangkok Declarations
The antecedents of efforts to create an ASEAN identity can be traced back to the
1993 Bangkok Declaration78 and another Bangkok Declaration79 in 1999. Under
these two instruments, the rights of migrant workers are conceived in very different
ways. The 1990s was a period in which there was renewed international interest
in trafficking and irregular migration. In particular the near contemporaneous
International Conference on Population and Development held in Cairo in 1994
was significant in putting the issue of trafficking (which is arguably the ‘flip side’ of
labour migration) onto the international agenda and was one of many initiatives
in the 1990s which discussed that issue in the context of international migration.80
At the regional level, the 1993 Declaration was made by Ministers and repre-
sentatives of Asian states in preparation for the Vienna World Conference on
Human Rights. The Declaration made a specific reference to the rights of migrant
workers and other vulnerable persons,81 but also referred to the need to create
favourable conditions for effective enjoyment of human rights at both the national
and international levels.82 Migrant rights were linked to inequalities in development
between the global North and the global South.83
Whilst some see the 1993 Bangkok Declaration as heralding the beginning of a
shift to human rights,84 it could also be interpreted as a strident and defensive
declaration of ‘Asian values’. It presents a view of how Asian states perceived their
responsibility for human rights issues at the time. The important difference is that
now it is recognized that disparities in development exist at both the global and
regional level.85 As mentioned above, movement of migrant workers in Southeast
Asia is substantially intra-regional. The global North can no longer be solely blamed
for inequalities leading to human rights abuse.
The 1993 Bangkok Declaration contrasts with the 1999 Bangkok Declaration
on Irregular Migration which clearly had a different focus and genesis, but never-
theless made an important statement about the rights of all international migrants.
This was a regional consultation organized by the International Organization for
78 Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights,
UN Doc. A/CONF.157/ARSM/8-A/CONF.157/PC/59 (1993) (hereinafter ‘1993 Bangkok
Declaration’).
79 Bangkok Declaration on Irregular Migration, adopted at the International Symposium on
Migration, held in Bangkok, 21–23 April 1999, available at: <http://www.smc.org.ph/rights/
bangkok.htm> (accessed 24 August 2010) (hereinafter ‘1999 Bangkok Declaration’).
80 See Battistella, op. cit. (note 36), p. 60.
81 Article 11 emphasizes ‘the importance of guaranteeing the human rights and fundamental
freedoms of vulnerable groups such as ethnic, national, racial, religious and linguistic minorities,
migrant workers, disabled persons, indigenous peoples, refugees and displaced persons’.
82 1993 Bangkok Declaration, op. cit. (note 78), art. 2.
83 Ibid, art. 18.
84 S. Linton, ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed
ASEAN Commission on Women and Children’, Human Rights Quarterly 30, 2008, p. 436.
85 Tay, op. cit. (note 4), 157. Tay points out that ‘[t]he diversity of economic development levels
among ASEAN member countries differs greatly’.
Migration (‘IOM’) and an early example of such processes.86 Although ASEAN
was not formally present, ASEAN member states were.
The 1999 Bangkok Declaration recognizes that ‘international migration,
particularly irregular migration, has increasingly become a major economic, social,
humanitarian, political and security concern for a number of countries in the Asia-
Pacific region’.87 It also recognizes that ‘comprehensive, coherent and effective
policies on irregular/undocumented migration have to be formulated within the
context of a broader regional framework based on a spirit of partnership and
common understanding’ and the need for ‘international cooperation to promote
sustained economic growth and sustainable development in the countries of origin
as a long-term strategy to address irregular migration’.88

Paragraph 1 of the 1999 Bangkok Declaration provides that migration, and in
particular irregular migration ‘should be addressed in a comprehensive and
balanced manner, considering its causes, manifestations and effects, both positive
and negative, in the countries of origin, transit and destination’. Significantly,
paragraph 3 of the 1999 Bangkok Declaration provides that ‘regular migration and
irregular migration should not be considered in isolation from each other’. In that
respect it was forward-looking, prescient and arguably went even further than either
the ICRMW which creates a hierarchy of rights for regular and irregular migrants,
or the 2007 Declaration on the Rights of Migrant Workers.
The three pillars – position matters

Migrant worker issues appear under both the first and third pillars of the ASEAN
Community, the Political-Security and Socio-Cultural. Unsurprisingly the
Economic Community encompasses business and skilled migration. In its post-
Charter ASEAN Blueprint, the Political-Security Community includes the rights
of women and children, and a reference to an ASEAN instrument on migrant
workers,89 in fulfilment of article 22 of the Declaration on the Rights of Migrant
Workers. The Community is to ‘[c]ooperate closely with efforts of the sectoral
bodies in the development of an ASEAN instrument on the protection and
promotion of the rights of migrant workers’. Additionally, the Political-Security
Community Blueprint articulates an expansive concept of ‘comprehensive security’,
which implicitly incorporates issues about migrant workers in development.90 In
this respect the Blueprint is consistent with regional literature which ‘securitizes’
migration issues.91
86 S. Kneebone, ‘The Governance of Labor Migration in South East Asia’, Global Governance: A Review
of Multilateralism and International Organisations 16, 2010, p. 383.
87 1999 Bangkok Declaration, op. cit. (note 79), preamble, para. 4.
88 Ibid, preamble, paras 8, 10.
89 ASEAN Political-Security Community Blueprint, section A.1.5 (Promotion and Protection of Human
Rights), available at: <http://www.aseansec.org/22337.pdf> (accessed 23 September 2010).
90 Paragraph 17. Also, B.4, paragraph 25 refers to ‘non-traditional security issues’.
91 M. Caballero-Anthony, ‘Challenging Change: Nontraditional Security, Democracy and
Regionalism’, in D. Emmerson (ed.), Hard Choices: Security, Democracy, and Regionalism in Southeast
Asia, Singapore: Institute of Southeast Asian Studies, p. 191.
However, migrant worker issues also appear in the Socio-Cultural Community
Blueprint which has a strong emphasis on human rights protection and social
welfare, including women and children, the elderly and persons with disabilities.
Part C.2 of the Blueprint deals in detail with the ‘[p]rotection and promotion of
the rights of migrant workers’, including operationalizing the Declaration on the
Rights of Migrant Workers. A strategic objective under this part is to:
Promote fair and appropriate employment protection payment of wages and

adequate access to decent working and living conditions for migrant workers
and provide migrant workers, who may be victims of discrimination, abuse,
exploitation or violence, with adequate access to the legal and judicial system
of the receiving states . . .92
Unlike the 1999 Bangkok Declaration there is no clear sense in the ASEAN
Community Blueprints of the causes, dimensions or solutions to the problem of
migrant workers’ rights. On the one hand migrant workers are seen as a potential
threat to social cohesion and associated with ‘transnational crimes and trans-
boundary challenges’, but on the other they are portrayed as individuals with rights.
It is unclear when one image prevails over the other. The overall impression is
one of ambiguity about the place of unskilled migrant workers in the ASEAN
Community. By contrast ASEAN has a clear focus about skilled labour and
professional migration.
ASEAN initiatives in relation to labour migration

In the late 1990s, in addition to policies in relation to trafficking, ASEAN also began
to tackle the management of migration. However, unskilled and irregular migrant
workers were largely left out of the picture. For example, the Hanoi Plan of Action
1998 (‘HPA’)93 contained several measures related to immigration and trafficking,
including accelerating the freer flow of skilled and professional labour in the region
and the strengthening of ASEAN collaboration in combating the trafficking of, and
violent crimes against, women and children.94 This latter focus was consistent with
the 1993 Bangkok Declaration and the 1993 ASEAN Plan of Action for Children.95
The related Hanoi Declaration reiterated ASEAN’s goal of addressing trans-
national crimes such as smuggling and trafficking.
92 ASEAN Socio-Cultural Community Blueprint, section C.2, available at: <http://www.aseansec.

org/22336.pdf> (accessed 23 September 2010).
93 Hanoi Plan of Action (HPA) 1997, available at: <http://www.aseansec.org/10382.htm> (accessed
24 August 2010).
94 But see Linton, op. cit. (note 84), p. 436.
95 ASEAN Secretariat, ‘Resolution on the ASEAN Plan of Action for Children’, Manila, the
Philippines, 2 December 2003, available at: <http://aseansc.org/2036.htm> (accessed 6
September 2010).
In 1999, ASEAN agreed to establish a High Level Ad-hoc Experts Group
Meeting on Immigration Matters: to develop an institutional framework for ASEAN
cooperation on immigration matters; develop a Plan of Action for Cooperation on
Immigration Matters; and establish an ASEAN Directory of Immigration Focal
Points to facilitate networking among immigration authorities.96 The ‘general
objectives’ of the resulting ASEAN Plan of Action on Immigration Matters,97
included promoting modernization of immigration facilities, systems and operations,
and supporting efforts to combat transnational crime. There was a specific focus
upon cooperation amongst member states in the movement of labour, both skilled
and unskilled. However, the associated Program of Action excluded any mention
of actions to facilitate the movement of unskilled labour.

Since 2000 ASEAN’s focus on labour and human resources has been guided by
the ASEAN Labour Minister’s Work Programme. This has four broad priority
areas, namely: labour market monitoring; labour mobility; social protection; and
tripartite cooperation. An ASEAN Labour Ministerial Meeting (‘ALMM’) has been
established under the ASEAN Socio-Cultural Community with two sub-organs,
SLOM (discussed above) and the ASEAN Committee on the Implementation of
the Declaration on the Rights of Migrant Workers (‘ACMW’) (see below).98 At the
2010 meeting, there was discussion about ‘Accelerating Labour Cooperation
within the ASEAN Community’.99
The 2007 ASEAN Declaration on the Rights of Migrant

Workers
The Declaration was an outcome of the VAP (2004–10). Importantly, the Preamble
to the Declaration recognizes both the contributions of migrant workers to the
society and economy of receiving and sending states, and the sovereignty of states
in determining their own migration policy for migrant workers. As we shall see,
these competing principles involve a balance in which state sovereignty reigns
supreme. It should be noted that the Preamble of the 2007 ASEAN Declaration
acknowledges first, ‘the legitimate concerns of both sending and receiving states’
in relation to migrant workers (without specifying what they are) and, secondly,
‘the need to address cases of abuse and violence against migrant workers’. This is
in the context of ASEAN’s role to create ‘a cohesive caring society’ which is ‘com-
mitted to enhancing the quality of life and well being of its people, especially those
96 At the 3rd Meeting of the ASEAN Directors General of Immigration Departments and Heads of
Consular Affairs Divisions of the ASEAN Ministries of Foreign Affairs.
97 Available at: <http://www.aseansec.org/16573.htm> (accessed 2 December 2007).
98 ASEAN Committee on the Implementation of the ASEAN Declaration on Migrant Workers,
‘Statement of the Establishment of the ASEAN Committee on the Implementation of the ASEAN
Declaration on the Protection and Promotion of the Rights of Migrant Workers’, 2007, available
at: <http://www.workersconnection.org/articles.php?more=82> (accessed 6 September 2010).
99 Available at: <http://www.aseanmigrant.org/articles.php?more=131> (accessed 24 August
2010).
in the vulnerable and disadvantaged sectors’. But after this inclusive opening, which
seems to give primacy to state interests, what does it provide?
There are several overall points to note about the Declaration. First, it focuses
on regular migrants. It does not provide a definition of ‘migrant worker’, but article
2 distinguishes those who ‘subsequently become undocumented’ as being provided
with assistance for ‘humanitarian’ reasons, rather than as an entitlement.100 Further,
article 4 states that nothing in the Declaration implies the ‘regularization’ of
undocumented migrant workers.
Secondly, the Preamble refers to the (non-binding) UDHR and one of the anti-
discrimination Conventions, namely CEDAW, 101 as well as the CRC.102 Notably
it does not refer to racial discrimination,103 nor to the ILO Conventions, the
ICRMW or to other general human rights instruments. It has been pointed out
that in practice the legislation of many member states does not comply with these
obligations.104 The obligations of receiving states are briefly set out as being to:
• intensify efforts to protect the fundamental human rights, promote the welfare
and uphold the human dignity of migrant workers (article 5);
• work towards the achievement of ‘harmony and tolerance’ between receiving
states and migrant workers (article 6);
• facilitate access to resources and remedies, justice and social welfare services
‘as appropriate and in accordance with’ local legislation, bilateral agreements
and multilateral treaties (article 7);
• promote fair and appropriate employment protection and ‘adequate’ access
to decent working and living conditions (article 8); and
• provide victims of discrimination, abuse, exploitation with ‘adequate’ access
to the legal system (article 9).
It is unclear whether ‘the fundamental human rights’ referred to in article 5 include

those set out in the ICRMW. The language of ‘adequate’ access to rights also
contrasts with the right to equality of treatment with nationals in the ICRMW.
The second part of the Declaration refers to the obligations of sending states in
somewhat bland terms. For example article 12 refers to their obligation to ‘[e]nsure
access to employment and livelihood opportunities for their citizens as sustainable
alternatives to migration of workers’. This is a somewhat circular requirement as
100 That is, it appears to apply to a limited class of ‘undocumented’ workers, namely those who enter
legally and subsequently become ‘illegal’ through overstay or breach of visa for example. This
provision does not apply to those who enter illegally.
101 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13
(entered into force 3 September 1981) (‘CEDAW’).
102 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990)
(‘CRC’).
103 That is, International Convention on the Elimination of All Forms of Racial Discrimination, 660
UNTS 195 (entered into force 4 January 1969) (‘ICERD’).
104 P. Robertson, power-point presentation of 13 November 2008; copy on file with the author.
the lack of such opportunities is the intractable cause of labour migration. They
are also required to regulate recruitment, and to provide pre-departure training.
The third part refers to ASEAN’s role in very ambitious terms. For example, article
15 requires ASEAN to ‘[p]romote decent, humane, productive, dignified and
remunerative employment for migrant workers’.
There are also obligations about creating reintegration programs (article 16) –
which imply that they are considered as temporary workers – and provisions about
cooperation in trafficking and smuggling. For example, it refers to building capacity
(article 19) and data sharing (article 18). Finally article 21 requires ASEAN to:
Encourage international organisations, ASEAN dialogue partners and other

countries to respect the principles and extend support and assistance to the
implementation of the measures contained in this Declaration.
The Declaration has been described as an ‘aspirational’ document which is thin

on operational detail. Notably, it does not discuss the joint obligations of sending
and receiving states which is one of the biggest hurdles for progress on this issue.
Implementation of declaration
Under article 22 of the Declaration on the Rights of Migrant Workers a new
committee has been created by ASEAN (‘ACMW’), and the ILO has created a
new process for it through the ASEAN Forum on Labour Migration (as discussed
above). The Task Force – ASEAN Migrant Workers (‘TF-AMW’), which is a
platform for ASEAN civil society groups working for effective implementation of
the ASEAN Declaration, has been established alongside these formal, official
mechanisms. This section describes the role of ACMW and assesses the work of
the TF-AMW.
ASEAN Committee on Migrant Workers

ACMW is one of two sub-organs of the ALMM created by the Charter under the
ASCC (the other being SLOM). This committee had its first meeting in September
2008. It comprises one senior representative from each of the member states and
a representative from the ASEAN Secretariat, assisted by representatives from
concerned government agencies of each member state. The formality of its role is
evidenced by the fact that it reports to the SLOM. It comprises senior labour
ministry officers and has been formally tasked with the role of drafting a regional
agreement or instrument to protect the rights of migrant workers under article 22.
The TF-AMW presented its Draft Framework Instrument to this body on 12 May
2009 and urged it to incorporate it into deliberations on the rights of migrant
workers.
Task Force – ASEAN Migrant Workers
The unofficial TF-AMW which includes broad civil society representation is taking
the lead on implementation of the Declaration on the Rights of Migrant Workers.
The TF-AMW was formed in April 2006 and held eight national consultations and
seven regional consultations in 2007–09. Its representation includes trade unions
and ‘mass organizations’ from Lao PDR and Vietnam. It has drafted a Framework
Instrument on the Promotion and Protection of the Rights of Migrant Workers
(‘Framework Instrument’),105 based upon four core principles which appear to go
further than the ICRMW:
First, it shall include and cover all migrant workers in ASEAN. Second, it shall
recognize that the protection of the rights of migrant workers is a shared
obligation of both sending and receiving countries. Third, it shall follow the
principles of non-discrimination in treatment provided to migrant workers and
their families. Finally, given the predominance of women who are migrating
for work, the fourth principle shall be to ensure migration policy and practices
are gender-sensitive.106
The first principle, which comes expressly from the 1999 Bangkok Declaration,
embodies the proposition that ‘all migrants in ASEAN shall be covered by the
Framework Instrument, regardless of legal status’.107 It is likely to prove the most
controversial among member states.
The third core principle is also likely to meet resistance. It requires equal
‘national’ treatment of migrants, including as regards freedom of movement,
freedom of association, right to receive and send communications, and the right to
life including the right to a family, and security of person.108
The Framework Instrument thus implicitly supports the international human
rights framework, although like the Declaration on the Rights of Migrant Workers
it refers only to the UDHR, CEDAW and CRC. Significantly, prominence is
given to the eight core ILO Conventions. Member states are to agree that they
‘shall immediately ratify’109 such Conventions, but in contrast, are only urged to
‘consider’ ratification of the ILO Conventions Nos 97 and 143 as well as the
ICRMW.110 A key recommendation of the Framework Instrument is the creation
of a Subcommittee on the Rights of Migrant Workers operating under the super-
vision of the AICHR. However, this has not been established.
105 TF-AMW, ‘Civil Society Proposal: ASEAN Framework Instrument on the Protection and
Promotion of the Rights of Migrant Workers’, in Samydorai and Roberstson (eds), op. cit. (note
6), p. 16.
106 Ibid, paras 11, 17.
107 Ibid, paras 12, 17.
108 Ibid, paras 14, 18.
109 Ibid, paras 17, 18.
110 Ibid, para. 18.
In January 2010, the Convenor of the Task Force, Sinapan Samydorai, com-
mented that whilst ASEAN regional economic integration is on the ‘fast track’, the
protection of the rights of the migrant workers of its member states is ‘still very
poor’.111 In February 2010 the drafting process was reportedly deadlocked by
Malaysia’s refusal to agree to key issues.112 The drafting process was largely led by
representatives from the Philippines and Indonesia – two ASEAN countries which
are source countries for labour migration.
At the 3rd ASEAN Forum on Migrant Labour in Hanoi in 2010, discussion
centred upon ‘Enhancing Awareness and Information Services to Protect the
Rights of Migrant Workers’. In relation to the obligation under article 22, an
encouraging statement arising from the Forum refers to the need to:
Strengthen information and services to better protect women and men migrant
workers and ensure decent and productive work in conditions of freedom,
equity, security and human dignity. Provide opportunities for migrants to
realize their labour rights in line with legislation of the ASEAN Member States,
the ILO Fundamental Principles and Rights at Work, and their basic human
rights protected by the UN and international conventions, particularly
CEDAW and CRC, and in the spirit of the ASEAN Declaration on the
Protection and Promotion of the Rights of Migrant Workers.113
The reference to ‘basic human rights’ and the focus upon protection and services
are welcome. However there was no mention of the Framework Instrument which
was launched in the Philippines in April 2010. At that launch it was stated that
‘[t]he proposed framework is facing a tough road ahead, however, as some ASEAN
states have expressed resistance to it at the onset’.114 It seems that the work of the
TF-AMW has been side-lined. Furthermore, on the crucial issue of the obligations
of sending and receiving states, the statement meekly referred to the need to:
Strengthen and raise the visibility of labour attachés and consular staff in
collecting and providing information, and responding to rights violations
against women and men migrant workers. This should be achieved through
close engagement with the migrant community and employers, and in co-
operation with authorities of the host countries.115
111 FORUM-ASIA, 27 January 2010, available at: <http://forum-asia.org> (accessed 26 March

2010).
112 ASEAN Framework, ‘Draft Deadlocked over Key Issues’, Draft ASEAN Framework, 16 February
2010, available at: <http://www.aseanmigrant.org/index.php> (accessed 26 March 2010).
2010).
114 ‘TF AMW Presses for Stronger Protection of Migrant Workers in ASEAN’, available at:
<http://www.aseanmigrant.org/articles.php?more=128> (accessed 24 August 2010).
2010).
Conclusion
The issue of the rights of unskilled and semi-skilled migrant workers is one that is
testing ASEAN’s capacity to act as a regional leader on human rights issues. It has
to contend with the ‘securitized’ perspective of receiving ASEAN member states,
as well as the competing perceptions of such workers as ‘commodities’ in a labour
market rather than as bearers of human rights. ASEAN’s role is further complicated
by the fact that the normative framework for migrant workers’ rights, which is in
any event contested at the international level, has not been accepted by ASEAN
member states, with the exception of the Philippines and Indonesia, which are
‘sending’ states. However all have signed up to ILO core labour obligations.
This tension is replicated in the way that migrant workers are included in the
ASEAN Community and in formal ASEAN mechanisms such as ALMM.
Although ASEAN has created a number of formal institutions such as the ACMW
and drafted the Declaration on the Rights of Migrant Workers, progress on the
issue is slow. The main actors to date are the ILO, which importantly has
established the ASEAN Forum, and the TF-AMW, which has drafted a Framework
Instrument to implement the Declaration on the Rights of Migrant Workers. The
alliance between ASEAN and the ILO is interesting in the context of the debate
at the international level about the normative framework. It seems that the ILO is
having a strong influence in this region – both within ASEAN and with Labour
Ministers. The ILO has been instrumental in developing regional and transnational
dialogues which transcend national approaches. The experience of tackling
trafficking in the region, which has been coordinated by forums such as the
COMMIT process,116 suggest that transnational dialogue can assist to break down
barriers between sending and receiving states and lead to cooperative measures
and changes in attitude to transboundary problems.
At the moment the main obstacle to change arises from the attitudes of member
states. Because of its non-interventionist approach ASEAN is unlikely to challenge
states directly. Thus its alliance with the ILO is a convenient cover for ASEAN. In
any event, the ILO’s principles and methods merge well with ASEAN’s approach.
The present failure of the TF-AMW’s ‘bottom up’ advocacy demonstrates the
existence of a large gap between civil society and member states. In this scenario
ASEAN cannot fulfil the broad promises of leadership which its new Charter
contains or show the strong leadership that is required to bring the Framework
Instrument into effect. Currently it is mainly the ILO filling the gap. However,
there are some signs of progress in the recent ASEAN Forum on Migrant Labour,
which focused upon protecting migrant workers. It is to be hoped that through
quintessential ASEAN consultation and persuasion, acculturation will occur and
that attitudes of member states will shift over time.
116 COMMIT stands for the Coordinated Mekong Ministerial Initiative Against Trafficking, and
involves the six countries of the GMS: Cambodia, the Yunnan Province (of the People’s Republic
of China), Laos PDR, Myanmar, Thailand and Vietnam. See the UN Inter-Agency Project on
Human Trafficking website at: <http://www.no-trafficking.org/commit.html> (accessed 24
August 2010).
9 Challenges for ASEAN
Human Rights Mechanisms:
the case of Lao PDR from
a gender perspective
Irene Pietropaoli
Introduction
The creation of the ASEAN Intergovernmental Commission on Human Rights
(‘AICHR’) in October 2009, followed by the ASEAN Commission on Promotion
and Protection of the Rights of Women and Children (‘ACWC’) in April 2010, is
a milestone in the evolution of ASEAN as a regional community. The new
institutions represent a bold step forward that has officially legitimized human rights
discourse in the region for the first time.
Yet, as this chapter demonstrates, these normative developments will face
limitations when put into the practice of promoting and protecting human rights
in the region. In certain countries, such as the Lao People’s Democratic Republic
(‘Lao PDR’), which is the focus of this chapter, there is a pattern of poor imple-
mentation of laws and policies promoting women’s rights, which limits the ACWC’s
potential effectiveness. The degree of independence of ACWC commissioners and
whether the ACWC can actually protect a country’s most vulnerable groups remain
ongoing questions. The risk is that the envisaged step-by-step process of empower-
ing women and securing their rights might become a charade which further
legitimizes authoritarian governments.
This chapter first briefly outlines the development of the human rights discourse
in ASEAN and the establishment of the ACWC as a regional body concerning
the rights of women and children. It then examines the major challenges to
these regional human rights initiatives: the differences in the political and social
systems among ASEAN countries; the ‘ASEAN way’; the weakness of the ACWC’s
mandate and its politicized composition; the lack of civil society participation
and oversight in the ACWC, which undermines its ability to contribute to the
‘people-centred’ process that ASEAN promotes; and the obstacles of domestic
sovereignty and non-interference that prevent effective human rights monitoring
and protection.
The chapter next examines the potential issues facing the emerging ACWC in
relation to gender concerns in the Lao PDR. Despite the ratification of international
and regional treaties protecting women’s rights in Lao PDR, substantive gender
inequality and the status of women have not significantly improved. Lao women
are generally unaware of the regional discussions about women’s human rights at
the ASEAN level. The country, characterized by an authoritarian, corrupt
government that systematically violates human rights, may not yet be ready to be
meaningfully or effectively part of the formal developments taking place at the
regional level. The chapter accordingly addresses the problem of matching nor-
mative standards on substantive equality and non-discrimination with the real
recognition, promotion and fulfilment of women’s human rights in that country.
ASEAN’s protection of women’s and children’s rights

Despite ASEAN’s commitment to the promotion and protection of human rights1
and to the development of a regional mechanism in 1993,2 there was little progress
at the institutional level in the subsequent decade. Through the Vientiane Action
Plan (‘VAP’) of November 2004,3 ASEAN adopted a new policy on human rights
which committed it to establishing the ACWC by 2010. Following the adoption of
the ASEAN Charter in November 2007,4 ASEAN created a working group
(‘Working Group’) to devise the wider ASEAN Human Rights Mechanism
envisaged by the Charter.5 Despite opposition to a regional mechanism from Lao
PDR, Burma and some other authoritarian ASEAN countries,6 the Working
Group recommended the establishment of a commission,7 as discussed in Chapter
7 of this book.
In April 2009, the Working Group, in conjunction with national human rights
commissions, also sought to implement the VAP by drafting the terms of reference
of another working group for the establishment of an ASEAN Commission on the
Promotion and Protection of the Rights of Women and Children.8 As part of this
1 In July 1993, shortly after the Vienna World Conference, ASEAN member states met in Singapore
and adopted its position on human rights to affirm the Vienna Declaration: see Joint Communiqué
of the 26th ASEAN Ministerial Meeting, 23–24 July 1993, Singapore, available at: <http://www.
aseansec.org/politics/pramm26.htm> (accessed 14 May 2010). See also Vienna Declaration and
Program of Action, UN Doc. A/CONF.157/23 (1993).
2 Joint Communiqué of the 26th ASEAN Ministerial Meeting, op. cit. (note 1), paras 16–18.
3 Vientiane Action Plan (VAP) 2004–10, available at: <http://www.aseansec.org/VAP10th
%20ASEAN%20Summit.pdf> (accessed 29 September 2010).
4 ASEAN Charter (entered into force 15 December 2008). The text is available at <http://www
.aseansec.org/21069.pdf> (accessed 29 September 2010).
5 For a discussion on the Working Group see, eg, D. Keane, ‘South Asian Regional Charter on
Minority and Group Rights: A Comparative Regional Analysis’, European Yearbook on Minority Issues
2010.
6 See ‘Thailand to Hold Postponed ASEAN Summit in February’, The Irrawaddy, 16 December
2008, available at: <http://www.irrawaddy.org/highlight.php?art_id=14801> (accessed 14 May
2010).
7 Working Group for an ASEAN Human Rights Mechanism, ‘Proposed Elements for the Terms
of Reference of an ASEAN Human Rights Body’, available at: <http://aseanhrmech.org/
downloads/WGsubmissiontoHLP.pdf> (accessed 14 May 2010).
8 Terms of Reference for the Working Group that Will Work Towards the Establishment of an
ASEAN Commission on the Promotion and Protection of the Rights of Women and Children,
adopted at the Joint Session between the ASEAN Committee on Women (ACW) and ASEAN
Senior Officials Meeting on Social Welfare and Development (SOMSWD), Manila, the
Philippines, 9 April 2009 (‘WG-ACWC Terms of Reference’).
Challenges for ASEAN Human Rights Mechanisms 167
drafting process, a dialogue between civil society organizations (‘CSOs’) and the
Working Group was held in Bangkok on 17 August 2009.9 The ACWC Terms of
Reference were released in November 2009,10 soon after the establishment of the
AICHR.11
On 7 April 2010 the ACWC was inaugurated at the 16th ASEAN summit in
Hanoi.12 The ACWC is an intergovernmental consultative body and part of the
ASEAN organizational structure.13 Rafendi Djamin, Indonesia’s AICHR
Commissioner, said that the ACWC ‘will serve as a complementary body to the
AICHR and will work on sectoral issues under the guidelines and standards of the
AICHR’.14
Vietnam’s Prime Minister Nguyen Tan Dung, as the ASEAN Chair, stated that
the establishment of the ACWC represents the common will of the ASEAN leaders
in realizing the aspirations of women and children, translating into reality the
objectives set out in the Charter, the VAP and the Roadmap for ASEAN
Community for 2009–15.15 ASEAN proclaimed that the Commission marked a
‘turning point’ for the region. 16 The first purpose of the Commission is:
[t]o promote and protect the human rights and fundamental freedoms of
women and children in ASEAN, taking into consideration the different
historical, political, socio-cultural, religious and economic context in the region
and the balances between rights and responsibilities.17
The ACWC is mandated, inter alia, to promote the implementation of international

and ASEAN instruments relating to the rights of women and children;18 to develop
policies, programmes, and innovative strategies to promote and protect the rights
9 Dialogue with Civil Society Organisations (CSOs) in the Drafting of the TOR for the ASEAN
Commission on the Promotion and Protection of the Rights of Women and Children, Bangkok,
18–19 August 2009.
10 Terms of Reference of the ASEAN Commission for the Promotion and Protection of the Rights
of Women and Children, available at: <http://www.aseansec.org/documents/TOR-
ACWC.pdf> (accessed 14 May 2010) (‘ACWC Terms of Reference’).
11 For the establishment of AICHR, see Chapter 7 of this book.
12 S. Wahyuni, ‘ASEAN Gets Commission for Children and Women’ Jakarta Post, 8 April 2010,
available at: <http://www.thejakartapost.com/news/2010/04/08/asean-gets-commission-
children-and-women.html> (accessed 30 June 2010).
13 ACWC Terms of Reference, op. cit. (note 10), para. 4.
14 Child Rights Information Network (CRIN), ‘ASEAN: Cautious Welcome for Women and
Children Commission’, 8 April 2010, available at: <http://www.crin.org/resources/info
Detail.asp?ID=22345> (accessed 30 June 2010).
15 Ibid.
16 Asia Forum for Human Rights and Development (FORUM-ASIA), ‘ASEAN Commission on
Women and Children: Difficult to Have Protection Mandate’, 16 April 2010, available at:
<http://www.forum-asia.org/index.php?option=com_content&task=view&id=2522&
Itemid=129> (accessed 30 June 2010).
17 ACWC Terms of Reference, op. cit. (note 10), para. 2.1.
18 Ibid, para. 5.1.
of women and children;19 and to promote public awareness, education and build
the capacity of relevant stakeholders on the rights of women and children.20 The
ACWC shall also encourage ASEAN member states to undertake periodic reviews
of national legislations, regulations, policies and practices relating to the rights of
women and children;21 and propose appropriate measures, mechanisms and
strategies for the prevention and elimination of all forms of violation of such rights.22
In terms of its working methods, the ACWC shall ‘pursue a constructive non-
confrontational and cooperative approach to enhance the promotion and
protection of rights of women and children’.23 Each ASEAN member state shall
appoint two representatives to the ACWC, one representative on women’s rights
and one on children’s rights.24 The ACWC met for the first time in August 2010.
While the AICHR emerged out of the ASEAN Political-Security Community
and is formally mentioned in the ASEAN Charter, the ACWC was born out of an
action plan, which is a part of the ASEAN Socio-Cultural Community. This is an
important difference between the two bodies. The AICHR is able to function cross-
sectorally, having the mandate to influence and engage with all three ASEAN
communities (the third being the Economic Community). In contrast, the ACWC
will operate in a more limited manner as part of the socio-cultural pillar, through
its primary reporting to the ASEAN Ministers Meeting on Social Welfare and
Development (‘AMMSWD’) and its subsidiary reporting to the ASEAN Committee
on Women (‘ACW’) and other relevant sectoral bodies. 25
While there are various differences between the AICHR and ACWC mandates,
both commissions will ultimately work together. AICHR Commissioner Rafendi
Djamin highlighted that since the AICHR is mandated to provide technical advice
on human rights to all ASEAN sectoral bodies, it can help ACWC in main-
streaming important women’s and children’s issues under both the political-security
and economic pillars. The ACWC, in turn, can aid the AICHR in providing
specialized technical expertise on women’s and children’s protection issues in the
region. 26
Challenges for the ASEAN Human Rights Mechanisms

In theory, human rights discourse has now been legitimized for discussion at all
levels of ASEAN cooperation. This is important in a region where discussion of
19 Ibid, para. 5.2.

20 Ibid, paras 5.3, 5.5.
23 Ibid, para. 3.6.
24 Ibid, para. 6.1.
25 A. Cook and P. Bhalla, ‘Regional Champions. Examining the Comparative Advantages of
AICHR and ACWC’, Centre for Non-Traditional Security Studies Insight 1, 2010, available at:
<http://www.rsis.edu.sg/nts/HTML-Newsletter/Insight/NTS-Insight-jun-1001.html>
26 Ibid.
human rights has traditionally been prohibited in most intergovernmental forums.
Nevertheless, the implementation of human rights within ASEAN must overcome
a number of political obstacles and structural challenges.27
One of the main challenges for the establishment of an effective regional human
rights system is the different political and social systems within ASEAN. The
ten ASEAN states are diverse in their histories, economic development, forms
of government and positions on human rights. Of ASEAN’s ten members, only
Indonesia is regarded as a full democracy. The rest range from electoral democ-
racies hindered by corruption or instability (such as the Philippines and Thailand)
to authoritarian one-party states (such as Vietnam, Lao PDR and Burma).28 The
diversity among ASEAN states is arguably greater than that among its European,
American or African counterparts. Simon Tay argues that the European system
of human rights has evolved in the particular context of a much broader harmo-
nization and integration in politics, economics, security and social policy,29 and
that ASEAN politics render the comparison meaningless.30
Only four of the ten ASEAN states (Indonesia, Malaysia, the Philippines and
Thailand) have national human rights institutions,31 and they have taken varying
positions on the most prominent issues of international human rights law.32 Given
that human rights are not guaranteed at the national level in many ASEAN states,
a regional human rights body will face challenging political obstacles. Several
member states do not accept international standards for human rights in practice.
The lack of national human rights institutions and national enforcement mechan-
isms in many of the ASEAN states presents a formidable obstacle to realizing
regional protection.
The ‘ASEAN way’ is reflected in the influential debates on human rights and
‘Asian values’, by which human rights are only pursued through cooperation and
consensus, not confrontation and conditionality.33 ASEAN has always been
27 For discussion on the obstacles for the ASEAN human rights regional system see, eg, D. Aguirre
and I. Pietropaoli, ‘Human Rights in South East Asia: The Predicament of an ASEAN Regional
System’; copy on file with the author.
28 S. Roughneen, ‘One Step Forward, Two Steps Back’, International Relations and Security
Network, 29 October 2009, available at: <http://www.isn.ethz.ch/isn/Current-Affairs/Security-
Watch/Detail/?lng=en&id=108891> (accessed 30 June 2010).
29 S. Tay, ‘Comparing Apples with Mangoes and Durian: Human Rights Systems in Europe and
Southeast Asia’, Singapore: Singapore Institute for International Affairs, 2002.
30 Ibid. Cf. Chapter 6 of this book.
31 See The ASEAN National Human Rights Institutions (NHRI) Forum, available at:
<http://www.aseannhriforum.org/en/about-us.html> (accessed 15 September 2010).
32 See ‘ASEAN Workshop Highlights Need for Greater Civil Society Involvement’, Asian Forum
for Human Rights and Development (FORUM-ASIA), 26 July 2007, available at:
<http://www.forum-asia.org/index.php?option=com_content&task=view&id=844&
Itemid=42> (accessed 14 May 2010).
33 The ASEAN Declaration, Bangkok, 8 August 1967, signed by the Presidium Minister for Political
Affairs/Minister for Foreign Affairs of Indonesia, the Deputy Prime Minister of Malaysia, the
Secretary of Foreign Affairs of the Philippines, the Minister for Foreign Affairs of Singapore and
the Minister of Foreign Affairs of Thailand. See also D. Mauzy, ‘The Human Rights and “Asian
regarded as a group of sovereign states operating on the basis of ad hoc under-
standings and informal procedures rather than within the framework of binding
international treaties. The ASEAN way is to arrive at agreements through con-
sultation and consensus, rather than by negotiations that result in enforceable law.
This was true especially in ASEAN’s early years when the five founding members
still nursed historic animosities and suspicions towards each other.34 With the
subsequent entry of new members, ASEAN started over in terms of having to
delicately manage the legacies of history and culture. Rodolfo Severino, former
ASEAN Secretary General, argues that:
By not forcing its incredibly diverse and mutually suspicious members into
legally binding standards, ASEAN has done the remarkable job of moving its
members from animosity to the close cooperative relationship that they enjoy
today, a relationship in which violent conflict is all but unthinkable.35
Today, more than 40 years after its founding, ASEAN still relies largely on patient
consensus-building to arrive at informal understandings or loose agreements. This
philosophy governs the guiding principles for the new ASEAN human rights bodies:
respect for national sovereignty, non-interference,36 consensual decision making,37
and the imperative for gradual, constructive and non-confrontational coopera-
tion.38 These principles will hinder the effectiveness of both the AICHR and the
ACWC.39
The absence of common standards within ASEAN is evident in women and
children’s rights. The only two human rights treaties to which all ASEAN countries
are parties are the Convention on the Elimination of Discrimination against
Women (‘CEDAW’)40 and the Convention on the Rights of the Child (‘CRC’).41
The regional ratification of the CEDAW and the CRC seems to indicate a common
legal standard and mandate for the ACWC. It also appears to suggest that while
Values” Debate in South East Asia: Trying to Clarify the Key Issues’, The Pacific Review 10, 1997,
pp. 210, 221.
34 Rodolfo Severino, Secretary-General of The Association of Southeast Asian Nations, ‘The
ASEAN Way and the Rule of Law’, address delivered at the International Law Conference on
ASEAN Legal Systems and Regional Integration, University of Malaya, Kuala Lumpur,
3 September 2001, available at: <http://www.aseansec.org/2849.htm> (accessed 30 June 2010).
35 Ibid.
36 Working Group for an ASEAN Human Rights Mechanism, op. cit. (note 7), para. 2.1.
37 Ibid, para. 6.1.
38 Ibid, paras 2.4, 2.5.
39 S. Sheldon, ‘ASEAN and Multilateralism: The Long, Bumpy Road to Community’, Contemporary
Southeast Asia 30, 2008, p. 268.
40 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13
(entered into force 3 September 1981) (‘CEDAW’).
41 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990)
(‘CRC’).
human rights are still a sensitive topic in ASEAN, ‘[g]overnments have shown more
comfort in dealing with the rights of women and children’.42
Yet, the reality is that no common standard binding all ASEAN states truly exists
in relation to women and children.43 CEDAW and CRC, while universally
recognized, are among the least implemented, with certain ASEAN states, such
as Singapore, Brunei Darussalam, Thailand and Malaysia, entering reservations
to essential provisions – for example to articles 2 and 1644 – or general reserva-
tions.45 Only one state, the Philippines, has ratified the CEDAW Optional Protocol
that allows for individual complaints.46 The UNDP Gender Development Index
(‘GDI’) also illustrates that there is no regional norm on gender equality and it
remains quite varied across Southeast Asia. The GDI’s world rankings of ASEAN
states range from 15th out of 155 countries (in the case of Thailand) down to 104th
(Brunei).47
The literature on national laws and policies protecting women and children in
ASEAN states also shows that there are still gaps in the application of international
human rights instruments.48 The High Level Panel established to draft the Terms
of Reference of the ASEAN human rights body states that the body shall refer to
the UDHR, the CEDAW and the CRC unless there is an ASEAN human rights
declaration or convention.49 This understanding still provides a reference point
when considering cultural relativism against the universalism of human rights, as
well as a justification for the shortcomings of human rights practices in the region.
This view can lead to the advocating of double standards to justify violations of
international human rights, including women’s and children’s rights.
42 The Office of Human Rights Studies and Social Development (OHRSD), Mahidol University
Thailand, ‘Towards an ASEAN Commission on the Promotion and Protection of the Rights of
Women and Children’, June 2008, pp. xix–xx.
43 Suzannah Linton, ‘ASEAN States, Their Reservations to Human Rights Treaties and the
Proposed ASEAN Commission on Women and Children’, Human Rights Quarterly 30, 2008, pp.
436, 440.
44 Article 2 (Policy Measures) Singapore; art. 5(a) (Role Stereotyping and Prejudice) Malaysia; art.
7(b) (Political and Public Life) Malaysia; art. 9(2) (Nationality) Malaysia, Brunei, Singapore; art.
11 (Employment) Malaysia, Singapore; art. 16 (Marriage and Family Life) Singapore, Thailand,
Malaysia.
45 Brunei Darussalam (Constitution, Islam); Malaysia (Shariah, Constitution); Singapore (private/
religious/personal laws, socio-political conditions, national legislation); Thailand (Constitution,
national laws).
46 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women, 2131 UNTS 83 (entered into force 22 December 2000). The Philippines ratified it on
12 November 2003.
47 UNDP, Human Development Report 2009, available at: <http://hdr.undp.org/en/reports/global/
hdr2009/> (accessed 30 June 2010).
48 OHRSD, op. cit. (note 42), p. vi.
49 See, Asian Forum for Human Rights and Development (FORUM-ASIA) and Solidarity for Asian
Peoples’ Advocacy (SAPA), ‘The Process of Drafting the Term of Reference (TOR) on the ASEAN
Human Rights Body and Civil Society Involvement’, 21 February 2009, available at:
<http://www.forum-asia.org/news/press_releases/pdfs/Backgrounder-AHRB-FORUM-ASIA-
2009-Feb.pdf> (accessed 29 September 2010).
Soon after the adoption of the ASEAN Charter, doubts about its credibility and
capacity to enforce human rights emerged, including the complaint that the
AICHR is ‘more into rhetoric than real action’.50 Both ASEAN human rights
bodies are primarily consultative. Their Terms of Reference provide more for
promotion rather than protection of human rights. The protective mandate
outlined is limited to an advisory and non-binding recommendatory function.51
The AICHR’s consultative status gives it the power to advise and recommend.52
This is the only way forward for a human rights body in a region where human
rights themselves remain politically sensitive. In practice it is left to each govern-
ment to monitor its own conduct relating to human rights. While the creation of
the ACWC is a welcome step, there are concerns among CSOs that it too would
face similar limitations to the AICHR. 53
The AICHR is only one of the components in the ASEAN framework to respond
to human rights promotion and protection; the others include the ACWC, civil
society organizations and national human rights commissions.54 The main actors,
however, remain the ASEAN states themselves. As a result, non-interference in
domestic affairs remains the primary obstacle to practical discourse at the AICHR.
The AICHR commissioners are not independent from governments. As eight of
the ten members are current or retired government employees (‘His Excellencies’),55
this obstacle is unlikely to be surmounted in the near future. The AICHR is
composed of officials chosen by and accountable to member governments.56 Three
members were part of the High-Level Panel that drafted the AICHR’s ‘toothless’
Terms of Reference.57 Only Indonesia and Thailand allowed independent national
human rights bodies to nominate representatives,58 and those representatives are
the only ones with human rights expertise.
The ACWC’s Terms of Reference outline that each member state shall
facilitate, with regard to their respective internal processes, a transparent, open,
participatory, and inclusive selection process.59 Theoretically this process allows
for greater accountability to the public than does the selection process of the
50 Sinapan Samydorai quoted in W. Arnold, ‘Historic ASEAN Charter Reveals Divisions’, New York
Times, 20 November 2007.
51 OHRSD, op. cit. (note 42), p. xix.
52 V. Muntarbhorn, ‘Ten Tips for “Humanising” ASEAN’, Bangkok Post, 10 November 2009.
53 FORUM-ASIA, op. cit. (note 49).
54 Muntarbhorn, op. cit. (note 52).
55 H.E. Pehin Datu Imam Dato Paduka Seri Ustaz Haji Awang Abdul Hamid Bakal (Brunei), H.E.
Om Yentieng (Cambodia), H.E. Bounkeu Sangsomsak (Lao PDR), H.E. Datuk Muhammad
Shafee Abdullah (Malaysia), H.E. Kyaw Tint Swe (Myanmar), H.E. Rosario G. Manalo (the
Philippines), H.E. Richard Magnus (Singapore), and H.E. Do Ngoc Son (Vietnam).
56 As stated in AICHR Terms of Reference, para. 5.1: ‘Each ASEAN Member State shall appoint
a Representative to the AICHR who shall be accountable to the appointing Government’.
57 Cambodia’s Om Yentieng, Philippines’s Rosario Manalo and Laos’s Bounkeut Sangsomsak. See:
A. Ashayagachat, ‘A Difficult Birth for ASEAN Human Rights’, Bangkok Post, 25 October 2009.
58 Roughneen, op. cit. (note 28).
59 ACWC Terms of Reference, op. cit. (note 10), art. 6.4.
AICHR. 60 The reality is, however, that the ACWC too is composed of current
and former civil servants rather than independent experts.61 The composition of
both commissions may affect their effectiveness as well as their credibility at the
international level and among civil society.
The preamble of the ASEAN Charter resolves to put people at the centre of the
regional community-building project.62 The promotion of a people-oriented
ASEAN is promulgated as one of the Association’s purposes in article 1.13: ‘[t]o
promote a people-oriented ASEAN in which all sectors of society are encouraged
to participate in, and benefit from, the process of ASEAN integration and com-
munity building’.63 The obvious limitation is that the statements do not necessarily
reflect the reality.64 ASEAN has been widely viewed as the antithesis of civil society
participation and human rights.65 The principles of the Charter outlined in article
2 proceed to codify state-centrism, referring to sovereignty, national identity and
non-interference.66
For CSOs, a ‘people-oriented’ approach represents a historic opportunity for
ASEAN to become more transparent in its decision-making, to enable popular
participation and to address human rights issues.67 A lack of participation by CSOs
prevailed during the establishment of the ASEAN human rights bodies. Despite
the consultation of CSOs by the High Level Panel on several occasions, the
Terms of Reference were developed behind closed doors. The authoritarian
governments of Lao PDR, Myanmar and Vietnam obstinately refused to legitimize
the role of CSOs in decision-making. The drafting process of the ACWC Terms
of Reference that included CSOs and members of the Working Group in Bangkok
was more transparent, but not all states allowed for CSO participation.68 For
example, Lao CSOs did not participate.
The 2007 ASEAN Charter makes no provision for an institutionalized role for
CSOs. Indeed, the Charter provides no space for citizens to have any role to play
in the ASEAN decision-making process. The apparatus – coordinating councils,
community councils, ministerial bodies, a committee of permanent representatives,
and national secretariats – remains state-centric. The Solidarity for Asian Peoples’
Advocacies Working Group described the ASEAN Charter as ‘a document that
60 Cook and Bhalla, op. cit. (note 25).

62 ASEAN Charter, op. cit. (note 4), preamble.
63 Ibid, art. 1.13.
64 C. Medina, et al. (eds), ASEAN and Human Rights: A Compilation of ASEAN Statements on Human Rights,
Philippines: Working Group for and ASEAN Human Rights Mechanism, 2003.
65 A. Collins, ‘A People Centered ASEAN: A Door Ajar or Closed for Civil Society Organizations?’,
Contemporary Southeast Asia 30, 2008, p. 314.
66 Ibid, p. 326.
67 Ibid, p. 325.
68 Dialogue with Civil Society Organisations (CSOs) in the Drafting of the Terms of Reference for
the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children,
Bangkok, 18–19 August 2009.
falls short of what is needed to establish a “people-centered” and “people-
empowered” ASEAN’.69
Lao PDR from a gender perspective

The establishment of the ACWC is an important step for all ASEAN countries.
Lao PDR is also expected to benefit from this development. However, there are
also significant challenges that will limit these prospects in that country. The
government of Lao PDR has consistently shown an inability or unwillingness to
implement national laws protecting women. Moreover, its implementation of
relevant international human rights laws, such as the CEDAW and CRC, falls well
below acceptable standards. Based on the evidence analysed in this section, it seems
unlikely that a new set of non-binding regional commitments will make much
difference in practice. Real implementation can only come with deeper internal
structural reforms that bring political and economic freedoms for the women of
Lao PDR.
Lao PDR is an authoritarian one-party state ruled by the Lao People’s
Revolutionary Party (‘LPRP’) – the only party legitimized by the constitution. The
political system of Lao PDR is characterized by a remarkable degree of overlap
between the government and the Party.70 The president of the Party is also
currently the state president. Since the formation of the Lao PDR in December
1975, all political power has been monopolized under the authority of the LPRP.
The Party permeates and controls four key institutions: (i) the government; (ii) the
bureaucracy; (iii) mass organizations; and (iv) the military. Lao PDR’s repre-
sentation at the regional human rights bodies does not vary from this pattern:
Bounkeu Sangsomsak, the appointed Lao AIHRC commissioner, is also the
country’s deputy foreign minister.71
Lao PDR has a poor human rights record. Political dissent of even the most
limited kind – in the form of political study groups, or small peaceful public demon-
strations – is quickly suppressed.72 Arbitrary detention is common. Prison condi-
tions are harsh and at times life threatening. The death penalty is still applied.73
While Lao law prohibits torture, members of the security forces reportedly subject
prisoners to torture and other forms of inhumane treatment.74 The government
systematically violates the rights to privacy, freedom of speech, the press and
69 Solidarity for Asian Peoples’ Advocacies (SAPA) Working Group on ASEAN, ‘Analysis of the
ASEAN Charter’, 18 November 2007, available at: <http://www.r2pasiapacific.org/documents/
SAPA%20-%20Analysis%20on%20ASEAN%20Charter.doc> (accessed 29 September 2010).
70 Martin Stuart-Fox, ‘The Political Culture of Corruption in the Lao PDR’, Asian Studies Review 30,
2006, p. 59 at pp. 64–5.
71 Ashayagachat, op. cit. (note 57).
72 Stuart-Fox, op. cit. (note 70), p. 64.
73 Between 2003 and 2009, at least 39 people have been sentenced to death.
74 See US Department of State, ‘2009 Human Rights Report: Laos’, 11 March 2010, available at:
<http://www.state.gov/g/drl/rls/hrrpt/2009/index.htm> (accessed 30 June 2010).
assembly.75 A significant issue is the presence of anti-government rebels, mainly of
the Hmong ethnic minority, who have reportedly been harshly treated by the Lao
government.76 Trafficking in persons, especially women and girls for prostitution,
remains a problem, as does discrimination against ethnic minorities. Workers’ rights
are also restricted.77 Lao PDR does not have a national human rights institution,
and the barring of independent human rights monitors makes an exact appraisal
of the situation impossible.
Lao PDR has a short history of formal legislation. After the country’s inde-
pendence in 1975, Lao National Assembly’s First Legislature adopted for the first
time a number of laws including the 1991 Constitution.78 Since then, 78 new laws
have been adopted.79 The flood of new laws has made it difficult for officials to
master and apply them.80 Even in the Ministry of Justice and among the few
professional lawyers, knowledge of the new laws and their application is vague.81
The interpretation of some laws is unclear and requires clarification in a con-
stitutional court, which, under the Lao constitution, is unavailable.
Especially in rural areas, most of the population cannot read and know nothing
about existing laws; they do not refer to those laws in the face of official malfeasance.
Instead they resort to the methods they understand: the influence of friends and
relatives and the payment of bribes.82 Corruption in the police and the judiciary is
widespread. Lao PDR ranks number 158 out of 180 in the 2009 Corruption
Perception Index.83 While the way of limiting corruption in any society is through
the rule of law, in Lao PDR the Party is the law.84 The 2003 amended constitu-
tion has not strengthened the independence of the judiciary.85 The widespread
corruption in Lao PDR is likely to undermine the mandate of the ACWC in the
country, particularly because the Lao commissioners are government officials.
The legal framework of Lao PDR is still relatively weak compared to other
countries within ASEAN. 86 Gender equality is formally protected, but this has not
75 Ibid.
76 Amnesty International, ‘Lao People’s Democratic Republic: Hiding in the Jungle – Hmong under
Threat’, 23 March 2007, available at: <http://www.amnesty.org/en/library/info/ASA26/
003/2007> (accessed 29 September 2010).
77 US Department of State, op. cit. (note 74).
78 Asia Pacific Parliamentary Forum, ‘Brief History of the National Assembly’, available at:
<http://www.na.gov.la/appf17/na_history.html> (accessed 30 June 2010).
79 Ibid. A list of Lao laws translated in English is available online at the Lao National Assembly
webpage available at: <http://www.na.gov.la/index.php?option=com_frontpage&Itemid=1>
(accessed 30 June 2010).
80 Stuart-Fox, op. cit. (note 70), pp. 59, 64–5.
81 Ibid.
82 Ibid.
83 Transparency International, ‘Corruption Perception Index’, 2009, available at: <http://www.
transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table> (accessed 14 May
2010).
84 Stuart-Fox, op. cit. (note 70), pp. 69–71.
85 Ibid.
86 CEDAW in Action in Southeast Asia, ‘Lao PDR, CEDAW Implementation’, available at:
<http://cedaw-seasia.org/lao_cedaw_implementation.html> (accessed 30 June 2010).
translated into practical and cultural changes. While the constitution and several
laws (such as on land, property, labour and family) do include some gender-equality
provisions, the overall implementation of these legislative provisions remains
weak. Commitments to anti-discrimination are not followed by specific, detailed
operational plans and no mechanisms are established to ensure compliance.87
The 2003 Lao Constitution states that ‘Lao citizens are all equal before the law
irrespective of their gender, social status, education, beliefs and ethnic group’, 88
and further that ‘[c]itizens of both genders enjoy equal rights in the political,
economic, cultural and social fields and in family affairs’.89 Since 2004 other policies
and legislation, such as the National Strategy for the Advancement of Women90
and the Law on Development and Protection of Women (‘LDPW’),91 have been
adopted to provide for gender equality. The LDPW focuses on eliminating dis-
crimination and violence against women and purports to create an enabling envi-
ronment for women’s empowerment. The Law contains some gaps: for example,
it does not have a definition of discrimination against women. In 2006 Lao PDR
took another formal step forward in gender equality by issuing a decree to make
the LDPW fully enforceable. But these provisions have been poorly implemented
and the government’s efforts in disseminating information on gender equality laws
and policies are inadequate. The following paragraphs illustrate some examples of
the poor implementation of gender equality laws in Lao PDR.
The 1990 Family Law sets the legal marriage age at 18 years, but early marriage
is common, particularly amongst girls in remote, rural, midland villages who often
marry before they reach the age of 14 years.92 The UN estimates that almost 27
per cent of women between 15 and 19 years of age were married, divorced or
widowed.93 Article 4 of the Family Law holds monogamy as the governing principle
of marriage; however polygamy remains customary especially among some Hmong
mountain tribes.94 Prostitution is illegal, but in practice anti-prostitution laws are
not enforced, and in some cases officials are involved in the trade.95
87 Ibid.
88 Constitution of the Lao People’s Democratic Republic, National Assembly No. 25/NA, 6 May
2003, art. 35.
89 Ibid, art. 37.
90 Lao National Commission for the Advancement of Women, National Strategy for the Advancement of
Women: 2005–2010, Vientiane, 2004.
91 Lao People’s Democratic Republic, Law on Development and Protection of Women, National Assembly
No. 70/PO, 15 November 2004.
92 Social Institution and Gender Index (SIGI), ‘Gender Equality and Social Institution in Lao PDR’,
available at: <http://genderindex.org/country/lao-pdr> (accessed 30 June 2010).
93 UN Department of Economic and Social Affairs, Population Division, World Fertility Report 2003,
New York: United Nations, 2004.
94 The Gender and Development Group (GDG), ‘List of Key Issues to be Submitted to the CEDAW
Committee’, CEDAW Pre-session, 44th CEDAW session, November 2008, available at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/GDG_Laos_44.pdf> (accessed
30 June 2010).
Men and women are treated equally under the 1990 Inheritance Law: however,
varying degrees of traditional, culturally based discrimination against women
persist, with greater discrimination practised by some hill tribes.96 Another illu-
stration is the process of land titling. The law grants men and women equal access
to land, but tends to be of less significance than customary traditions.97 An assess-
ment by the Lao Women’s Union (‘LWU’) found that although women owned
more land than men, the majority of names on land title documents were those of
men alone. 98
Violence against women is common despite the fact that the 2006 decree on the
LDPW establishes severe penalties for this crime.99 The Gender Resource
Information and Development Centre (‘GRID’) indicates that domestic violence

is perceived as a private matter, and most young men and women consider that
men are justified in hitting their wives.100 The high prevalence of violence against
women – especially domestic violence – appears to be socially legitimized and
accompanied by a culture of silence and impunity.101 Cases of violence are under-
reported and those that are reported are usually settled out of court. The law
criminalizes domestic abuse and sexual harassment, but these crimes are rarely
reported and there is no official data available on the number of abusers prosecuted,
convicted or punished.102 If Lao PDR’s adherence to the ACWC is genuine, a
priority for the country should be to address the impediments faced by women
victims in gaining access to justice, redress and protection.
Lao PDR ratified CEDAW in 1981, the second country in the region after the
Philippines. It took almost 25 years before the first state report was submitted to
the CEDAW Committee for review in 2005.103 The status of the Convention vis-
à-vis domestic legislation is still unclear. For example, the Constitution or other
appropriate legislation does not include a definition of discrimination. The
Convention as a concept is still new in the country.104 Knowledge of CEDAW is
confined mainly to senior government officials or senior members of the LWU.105
The UN Development Fund for Women (‘UNIFEM’) notes that the lack of
formal training institutions, translated materials on CEDAW, and generally low
educational level make awareness building challenging, particularly at the district
96 Ibid.
97 SIGI, op. cit. (note 92), citing a 1998 survey by GRID: ‘although 40 per cent of land surveyed
was passed on by the parents of wives, only 16 per cent of land was registered in the wives’ names.
By contrast, some 58 per cent of land was registered in the husbands’ names even though only 18
per cent of it originated from the husbands’ parents’.
98 CEDAW in Action in Southeast Asia, op. cit. (note 86).
99 SIGI, op. cit. (note 92).
100 The Gender Resource Information and Development Centre (GRID), Lao PDR Gender Profile,
Washington DC, 2005.
101 Ibid.
104 Ibid.
105 Ibid.
or village levels.106 Entrenched patriarchal attitudes and traditional gender-role
stereotyping at all levels compound the issue, and encourage a general indifference
to the rights of women.107 While exposing traditional gender inequalities to the
scrutiny of human rights based standards is a positive development, the recom-
mendations of the CEDAW Committee, with stronger obligations than the ACWC,
have not significantly improved the implementation of the domestic legal pro-
visions, procedures and institutions.
Another example of the limited impact in Lao PDR of the formal development
of regional norms and mechanism is the issue of human trafficking. One priority
issue under the ACWC’s scrutiny will be the trafficking in women and children.108
What the Commission’s role would exactly be has yet to be specified. Trafficking
in women and children is experienced in all the ASEAN member states, especially
in the Mekong Delta countries of Lao PDR, Thailand, Vietnam, Cambodia and
Burma.109
Lao PDR already has domestic laws and regional treaties combating trafficking,
but their implementation has been weak. Lao PDR prohibits all forms of human
trafficking through article 134 of the Penal Code, as revised in 2006. The Lao
government has also signed two Memorandums of Understanding (‘MOUs’) with
the Thai government on the problem.110 Despite these developments, trafficking
and sexual exploitation of women and girls in the country persists: 60 per cent of
the victims are reportedly girls between 12 and 18 years of age.111 Lao PDR is
primarily a source country for women and girls trafficked to Thailand for the
purposes of commercial sexual exploitation and forced labour. Lao PDR is also
increasingly a country of transit for Vietnamese, Chinese and Burmese women
trafficked to Thailand due to the construction of new highways and the acceleration
of infrastructure projects linking these countries.
A severe lack of resources, the poor training of officials, an ongoing police
corruption problem, a weak judicial sector and the population’s general distrust of
the court system have been identified as key impediments to the government’s
ability to combat trafficking in persons.112 Corruption especially remains a problem
with government officials susceptible to involvement or collusion in trafficking.
Observers in Lao PDR believe that at the local level, it is almost certain that some
officials are involved in facilitating human trafficking, sometimes in collusion with
106 Ibid.
107 Ibid.
109 Wahyuni, op. cit. (note 12).
110 One on ‘Employment Cooperation’ on 18 October 2002 and the other on ‘Cooperation to
Combat Trafficking in Persons, Especially Women and Children’ on 13 July 2005.
111 Concluding Observations of the Committee on the Elimination of Discrimination against Women:
Lao People’s Democratic Republic, UN Doc. CEDAW/C/LAO/Co/7 (2009) (‘CEDAW
Committee Concluding Observations on Lao’).
112 See US Department of State, ‘Trafficking in Persons Report, Laos’, 2009, available at:
<http://www.state.gov/g/tip/rls/tiprpt/2009/123137.htm> (accessed 30 June 2010).
their Thai counterparts. There is also evidence that border officials permit smug-
gling of all kinds, including of humans.113 Protection procedures for returned
trafficked victims from abroad, especially from Thailand, are also inadequate.114
The promotion of women and children’s rights at the regional level will have
the positive effect of bringing these issues into domestic politics. This can be
achieved, for example, through information-sharing about how different states
develop policies to address gender inequalities.115 The interaction between the
domestic situation in Lao PDR and the evolving regional norms and mechanisms
could induce compliance with regional standards on women’s rights. One problem
is that these standards have yet to be defined in Southeast Asia. The lack of
implementation poses another major problem. UNIFEM notes that even though
legal changes on women’s rights issues have been made, these changes still fall
significantly short of making an impact on the ground because of poor enforcement,
limited capacity and weak accountability.116
The ACWC is described as having a wider protection mandate than the
AICHR.117 However, Forum-Asia, an umbrella organization for regional rights
groups, observes that the ACWC’s Terms of Reference lean more towards the
promotion of rights and that it will be difficult for it to embark on a protection
mandate.118
The ACWC is expected to establish, in the next three years, a children’s and
women’s rights monitoring system in Southeast Asia that ‘will deal with sensitive
issues relating to children and women’.119 Yet the regional system will be signif-
icantly hampered in monitoring women’s rights until a stronger national system is
put in place in Lao PDR. Although Lao PDR could pursue stronger domestic
measures while simultaneously engaging with regional mechanisms, this requires
willingness, awareness and resources. At present it seems highly unlikely that a
corrupt government involved in violations of women’s rights will be willing to
enforce the ACWC’s protection mandate in the country.
The ACWC is expected to strengthen regional cooperation on the promotion
and protection of the rights of women and children, including their social welfare,
development and empowerment. The ACWC has the mandate to support the
participation of women and children in the dialogue and consultation processes in
ASEAN as related to the promotion and protection of their rights. This opens up
the opportunity for public participation in the processes.120 To fulfil this mandate
the ACWC needs to work with civil society partners in the region.121 It is difficult
113 Ibid.
114 CEDAW Committee Concluding Observations on Lao, op. cit. (note 111).
116 UNIFEM East Southeast Asia Regional Office, ‘Violence against Women’, UNIFEM Issue Briefs
on Women’s Human Rights in the ASEAN Region, May 2010.
118 CRIN, op. cit. (note 14).
120 Ibid.
at present to imagine this dialogue with civil society happening in Lao PDR
domestically or at the regional level. Since the launch of the AICHR in October
2009, the governments of Lao PDR, Burma, Singapore, Cambodia and the
Philippines made their view on civil society participation clear, refusing to meet
the NGOs selected for a meeting with the heads of government.122
Civil society is in its infancy in Lao PDR.123 The country lacks expert and inde-
pendent women’s groups. Local organizations are few and are typically restricted
to providing community services.124 The only active organization working for
gender equality in the country is controlled and limited in its activities. The low
level of women’s participation in decision-making further impedes efforts to address
discrimination concerns.125 Although there has been an improvement in female

representation in the National Assembly, the CEDAW Committee notes the
otherwise poor representation of women throughout the administration and
the judiciary,126 as exemplified by the fact that less than 1 per cent of the village
chiefs are women.127
Two institutions in Lao PDR form the national women’s machinery in charge
of ensuring formal protection: the LWU and the Lao National Commission for the
Advancement of Women (‘NCAW’). The LWU is a conservative mass organization
with over 800,000 members. Membership of the LWU is automatic after a Lao
woman reaches 17 years of age.128 Some LWU village representatives are active,
and work diligently as volunteers. However, since most of its work is unpaid and
time-consuming, they are generally over-burdened.129 The NCAW, established in
2003, is responsible for formulating and implementing national policy for the
advancement of women.
Both institutions have unclear mandates, lack coordination and do not receive
sufficient budget allocations from the government.130 The CEDAW Committee
has expressed concern about the inadequate institutional structure and financial
resources available to the NCAW to implement its work.131 The government also
conducted an assessment into NCAW’s effectiveness at the central and sub-unit
levels, finding that it does not have sufficient resources to fulfil its mandate.132 The
government is also largely dependent upon the international donor community to
fund anti-trafficking activities in the country, though it continues to greatly restrict
the activities of NGOs.133 Lack of human and financial resources, a constant
122 Roughneen, op. cit. (note 28).

124 Ibid.
126 Ibid.
127 Ibid.
128 K. Kusakabe, ‘Gender Mainstreaming in Government Offices in Thailand, Cambodia, and Lao
PDR: Perspectives from Below’, Gender and Development 13, 2005, p. 49.
129 Ibid.
130 CEDAW Committee Concluding Observations, op. cit. (note 111).
132 Ibid.
problem in Lao PDR, is a challenge for the work of the ACWC commissioners in
the country. The budget for ACWC activities has not been released yet, but
ASEAN leaders have pledged only US$200,000 for funding the AICHR in its
work across all ASEAN countries.134
Finally, there is a general lack of awareness on women’s rights in Lao PDR. The
country has high illiteracy rates among women (37 per cent).135 As most women
lack access to education, especially in rural areas, legal awareness tends to be
extremely low. The Lao government itself recognizes that ‘women have limited
access to legal information’.136 The development of a human rights culture is
difficult and slow. Yet, a priority should be given to human rights education so that
people know about their rights and understand how to protect them. Governments
must also commit themselves to their implementation.137 Fostering such an
environment provides the essential foundation for the effective functioning of a
regional body like the ACWC.
Conclusion
Human rights are at an important junction in Southeast Asia. There is strong civil
society pressure building in states that permit it, but it is suppressed in others.
ASEAN states are now more open to human rights discourse than ever before. No
longer can human rights be excluded from ASEAN regional activities, and this is
reflected by the evolution of its nascent human rights bodies. This constitutes a
rapid political change that has yet to be reflected in practice on the ground in
individual countries. In order to put this into practice, ASEAN human rights bodies
will have to overcome their structural weaknesses, political dependence and
separation from civil society to challenge the ‘ASEAN way’ of political engagement
and to promote a genuine human rights culture among the member states.
The ASEAN Charter contains powerful language that promises some dramatic
policy changes even within ASEAN’s more recalcitrant members.138 The estab-
lishment of the AIHRC and the ACWC represents much-needed institutional
progress in the region, which will undoubtedly continue to develop and improve.139
134 Foreign Policy Digest, ‘ASEAN’s New Human Rights Commission: “Toothless Tiger” or Catalyst
for Change?’, January 2010, available at: <http://www.foreignpolicydigest.org/Asia/January-
2010/aseans-new-human-rights-commission-qtoothless-tigerq-or-catalyst-for-
change.html#mce_temp_url#> (accessed 30 June 2010).
135 Committee on the Elimination of Discrimination against Women, Consideration of Reports
submitted by States Parties under Article 18 of the Convention on the Elimination of All Forms
of Discrimination against Women, Combined Sixth and Seventh Periodic Report of States Parties:
Lao People’s Democratic Republic, UN Doc. CEDAW/C/LAO/7 (2008) (‘Lao PDR CEDAW
Report 2008’). The Lao government recognizes that only 63 per cent of women are literate while
the literacy rate of men is 83 per cent.
136 Ibid, p. 145.
137 CEDAW Committee Concluding Observations on Lao, op. cit. (note 111).
138 M. Bunyanunda, ‘Burma, ASEAN, and Human Rights: The Decade of Constructive
Engagement, 1991–2001’, Stanford Journal of East Asian Studies 2, 2002, pp. 118–19.
139 OHRSD, op. cit. (note 42), p. xvi.
Regional human rights mechanisms play a crucial role in assisting regions to create
a culture of human rights for their peoples and especially for vulnerable groups.140
The ACWC, for example, could take the lead in the drafting and implementation
of treaties that require transnational cooperation, as in relation to the trafficking
of women, their exploitation or prostitution.141
Human rights have now been legitimized at the regional level. But it is important
to distinguish between norm-recognition and norm-compliance. ASEAN states’
human rights treaty compliance records are a case in point. ASEAN contains a
number of ‘champions of ratification’ who accede to human rights standards but
do not implement them at the national level. As examined in this chapter, Lao
PDR is a prime example in this respect.

Ratification of human rights treaties may serve certain countries as a signaling
device: ‘States ratify human rights treaties after periods of regional crisis as a way
to attract aid from the major international donors’.142 Signaling that they intend
to remain democratic or even that they are moving towards human rights, it is
argued, can result in substantial material benefits from the international community
through development aid or other assistance.143 Giving development aid to corrupt
governments – such as Lao PDR – risks reinforcing authoritarian regimes which
deny human rights in spite of their formal legal commitments. It is unclear at this
early stage whether the ASEAN human rights bodies will constitute more than
political window dressing.
It is this gap between ratification and implementation that necessitates inde-
pendent regional monitoring. As yet, some ASEAN states are not willing to submit
to a truly independent and powerful supervisory human rights body.144 The Lao
government has not yet committed to a full implementation of its international
treaty obligations. In Lao PDR, 30 years after the ratification of the CEDAW, the
status of women has improved little. Without a real foundation for implementing
its mandate, the adherence by Lao PDR to the AICHR and ACWC risks being
another empty gesture, a façade for the Lao government, and another opportunity
to legitimize the country’s image on human rights. Regional scrutiny of women’s
and children’s rights in Lao PDR is indeed a positive development. Yet, the fact
that the government is passing laws, signing regional and international treaties and
establishing national and regional commissions without any real action on
implementation risks widening the gap between formal policies and the reality of
women’s and children’s experiences.
140 Ibid.
141 NTS-ASIA Secretariat, NTS Alert, 1 September 2009.
142 H. Smith, ‘Explaining Ratification of Global Human Rights Instruments: The Role of Regional
Instability’, presentation delivered at the Journeys in World Politics Conference, University of
Iowa, 9–12 March 2006.
143 Linton, op. cit. (note 43), p. 443.
144 Ibid, p. 490.
Part III
Transnational and
national institutions
10 The role of networks in
the implementation of
human rights in the Asia
Pacific region
Catherine Renshaw
Introduction
The aim of this chapter is to challenge the focus on ‘institutions’ (the lack of them,
their potential, how to build them) in discussions about human rights in the Asia
Pacific region. I argue that the ‘European paradigm’ of ‘third party institutions
delegated with the power to impose top-down binding rules on sovereigns
enforceable by third-party judicial resolution’,1 is not the only effective form of
implementing human rights. In particular, it is argued that an emphasis on such
institutions ignores the power of networks.2 In the vast and heterogeneous regions
of Asia and the Pacific, networks are well-suited to ‘the progressive, incremental
elaboration of human rights norms which are implemented largely voluntarily’.3
The argument here is not that networks are or can be a substitute for formal
institutions, but that networks represent a significant, and already present, force
for the implementation of human rights.
This chapter argues that one network in particular has been influential in
advancing international human rights within the Asia Pacific region. The Asia
Pacific Forum of National Human Rights Institutions (‘APF’) is an association of
state-based human rights institutions, which are established constitutionally or
legislatively, with a mandate to promote and protect human rights. The network
facilitates the exchange of information between its members, forges links between
staff in different institutions and disseminates technological expertise. The network
provides members with information about best practice and operational effi-
ciencies, collates and disseminates human rights legislation, casework, techniques,
1 J. Alvarez, ‘Institutionalized Legalization and the Asia Pacific Region’, New Zealand Journal of Public
and International Law 5, 2007, p. 9 at p. 15.
2 In this chapter, two types of networks will be considered: transgovernmental networks and
transnational NGO networks, or ‘Transnational Advocacy Networks’. The broad definition of
‘network’ from sociological theory applies to both types of networks: ‘a set of ties linking social
system members across categories and bounded groups’. B. Wellman, ‘Network Analysis: Some
Basic Principles’, Sociological Theory 1, 1983, p. 156 at p. 156.
3 S. Toope, ‘Emerging Patterns of Governance and International Law’, in M. Byers, The Role of Law
in International Politics: Essays in International Relations and International Law, Oxford: Oxford University
Press, 2000, p. 91 at p. 98.
procedures and outcomes particular to national institutions both within and outside
the region. In the period since its inception in 1996 the network has contributed
to the ‘incremental growth of shared perceptions fostered by participation in
processes of norm evolution which are deemed to be fair and open’.4 This argument
is illustrated, in the final section of this chapter, by a case study of the APF’s efforts
to advance a particular issue-area – abuse of human rights on the basis of sexual
orientation and gender identity.
Networks in international relations

Globalization, and the inefficiency and inflexibility of international organizations

in responding to issues of transnational concern (from pandemics to terrorism),5
has driven the search for new forms of global governance. Networks – particularly
transgovernmental networks – have been promoted ‘as a form of international
governance that is more efficient and adaptable than the bureaucracies of inter-
national organisations’.6 Transgovernmental networks have been defined as
‘patterns of regular and purposive relations among like government units working
across the borders that divide countries from one another and that demarcate the
“domestic” from the “international” sphere’.7 They are ‘international relationships
between government officials that are not controlled or closely guided by the
policies of the cabinets or chief executives of those governments’,8 which are able
to ‘carry on various aspects of global governance in new and informal ways’.9 At
the apex of network scholarship is the work of Anne-Marie Slaughter, who argues
that transgovernmental networks are the answer to the ‘globalization paradox’,
which she defines as ‘the need for global institutions to solve collective problems’
coupled with the ‘unavoidable and dangerous threat to individual liberty’ that
would result from ‘world government’.10 Slaughter claims that a world of govern-
ment networks would be ‘a more effective and potentially more just world order
than either what we have today or a world government in which a set of global
institutions perched above nation-states enforce global rules’.11
Slaughter’s premise is that the state is not a unitary monolithic actor, but the
sum of its aggregate parts (legislatures, bureaucracies, judiciaries), and that these
parts have the capacity (and the imperative) to interact with their foreign counter-
4 Ibid, p. 98.
5 A.-M. Slaughter, A New World Order, Princeton: Princeton University Press, 2004, p. 8.
6 Miles Kahler, ‘Networked Politics: Agency, Power and Governance’, in Miles Kahler (ed.), Networked
Politics: Agency, Power and Governance, New York: Cornell University Press, 2009, p. 1 at p. 2.
7 Slaughter, op. cit. (note 5), p. 14.
8 R. Keohane and J. Nye, ‘Transgovernmental Relations and International Organisations’, World
Politics 1, 1974, p. 39.
9 A.-M. Slaughter and D. Zaring, ‘Networking Goes International: An Update’, Annual Review of
Law and Social Science 2, 2006, p. 211.
10 Slaughter, op. cit. (note 5), pp. 8–9.
11 Ibid, pp. 6–7. Here, Slaughter builds upon the work of Robert Keohane: R. Keohane, ‘Governance
in a Partially Globalized World’, American Polticial Science Review 95, 2001, p. 1 at p. 1.
The role of networks in the implementation of human rights 187
parts in order to address issues of transnational or common concern. Engagement
results in horizontal networks, which are decentralized and dispersed, incapable of
exercising centralized coercive authority.12 Slaughter, and other international
relations network theorists,13 argue that domestic political decisions to implement
global objectives (from desisting deforestation to conforming to global standards
about securities trading) are the result of activities amongst regulators (coordinating
information, policy and action) at the same hierarchical level within their own
national structure. A key element of conformist decision-making is the provision
and exchange of material and immaterial resources (principally information) to all
network members.
The network which is the subject of this chapter – the APF – falls generally within
the category of ‘transgovernmental network’.14 The argument here is that the APF,
as a transgovernmental network, has promoted the establishment of domestic
bodies dedicated to the promotion and protection of human rights, set standards
of independence and effectivness for its members, disseminated information and
ideas amongst its members about international human rights norms, and then
catalysed action in relation to the domestic implementation of these norms.
Transgovernmental networks aim to achieve domestic change which conforms
to a global or regional objective, via the cooperation of bureaucrats and government
officials. Networks thus achieve domestic change for an international agenda in
ways that can bypass political processes which are normally triggered by govern-
ment attempts to achieve change in traditional ways, for example, after negotiating
international conventions or treaties. For these reasons, for some, transgovern-
mental networks represent an unacceptable surrender of the democratic account-
ability of states, which alone possess the legitimacy to act in the public interest.15
The issue of network accountability lies at the heart of many concerns about
networks.16 It is important to consider how serious the concern about accountability
might be, in relation to a transnational network of national human rights institu-
tions, such as the APF.
Slaughter has a three-fold rejoinder to concerns about the accountability of
government networks:17 (i) government networks are primarily ‘talking shops’ and
(traditional, political) accounbtability is not relevant to the ‘soft power’ of (only)

13 See, eg, the work of Emilie Hafner-Burton, Princeton University; Miles Kahler, University of
California, San Diego; Alexander H. Montgomery, Reed College.
14 Although the APF has some of the attributes of a transgovernmental network (an ability to
coordinate effective action between government actors at sub-state level) it also employs some of
the strategies of a Transnational Advocacy Network (such as mobilizing international actors
around issue-areas in order to influence government). See note 65 below and associated text.
15 K. Anderson, ‘Squaring the Circle? Reconciling Sovereignty and Global Governance through
Global Governemnt Networks’, Harvard Law Review 118, 2005, p. 1255.
16 See, eg, P. Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’,
European Journal of International Law 8, 1997, p. 435.
17 A.-M. Slaughter, ‘The Accountability of Government Networks’, Indiana Journal of Global Legal
Studies 8, 2000, p. 347.
giving and receiving ideas; (ii) the (independent) nature of some domestic institu-
tions (Slaughter offers courts, but national human rights institutions occupy a
similiar position) is that they ‘act legitimately without direct acountability’; and (iii)
accountability must be assessed comparatively; international organizations (the
UN) and NGOs are not very acccountable themselves, yet both aim to effect
domestic change and bypass domestic political processes. In comparison to these,
government networks, which in the end must submit network ‘ideas’ to national
policy processes and then domestic regulation, are perhaps more accountable than
these other forms of influence.
There are too few empirical studies of how networks operate for critics to be able
to make broad generalizations about the lack of accountability of transgovern-

mental networks.18 The dynamics of each network are different: the accountability
of each network must be measured in light of that network’s objectives, member-
ship, issue-areas and decision-making processes. The APF network constists of
institutions which states have deliberately fashioned so that they are (normatively)
independent of national political processes, with mandates to engage inter-
nationally. The case study in this chapter, about the APF’s promotion of the idea
of human rights in relation to sexual orientation and gender identity in 2009–10,
shows there may be some substance to Slaughter’s response to accountability
critiques. The case study shows the advancement of a particular idea amongst APF
network members, some of whom would not have otherwise considered this idea,
and others who (at least initially) overtly resist the idea. The APF provided a forum
for a ‘talking shop’ where an idea was tested by dialogue and exchange within a
forum of independent human rights institutions, which must ultimately, if they
decide to attempt legislative change within the state, submit the idea to ordinary
domestic political processes. These factors suggest that domestic projects driven by
the APF network may not represent the affront to democratic legtimacy and the
problem with accountability that is sometimes raised as a concern with other
transgovernmental networks.
Two other criticisms of networks bear consideration, one concerning the utility
of networks, and the other concerning the distribution and uses of power within
networks. In relation to utility, some critics of network theories of governance argue
that the power of networks is shallow. Networks may be useful facilitators in ‘soft’
issue-areas where cooperation between the like-minded is hardly revolutionary,
but for ‘the hard choices of global redistribution’,19 it is questionable how network
principles of ‘harmonization and convergence’ really assist. ‘[T]he world of war,
death, poverty and resistance does not feature large in Slaughter.’20 In relation to
the operation of power within the network, some close studies of networks have
18 A.-M. Slaughter, ‘Governing through Government Networks’, in D. Held and A. McGrew (eds),
The Global Transformations Reader: An Introduction to the Globalization Debate, 2nd edn, Cambridge: Polity
Press, 2003, p. 189 at p. 193.
19 G. Simpson, ‘The Ethics of the New Liberalism’, in C. Reus-Smit and D. Snidal (eds), The Oxford
Handbook of International Relations, Oxford: Oxford University Press, 2009, p. 255 at p. 263.
20 Ibid, p. 262.
suggested that networked governance is ‘too often represented as inherently con-
sensual,’ and that the assumption that power within networks is always exercised in
a benign way must be questioned. These critics point to the ability of some network
nodes to exert disproportionate influence as a result of their position in the network:
‘power’s second face, setting the network’s agenda through structural control of
information’.21
In relation to the utility of a human rights norm, such as rights in relation to sexual
orientation and gender identity, being advanced via the APF network (as opposed
to attempts to secure domestic support from within states for a regional or
international treaty on the subject, for example), the value of the network seems
clear. The network provides a unique forum for government institutions (which
operate with some autonomy below the level of state, and possess sufficient domestic
power and legitimacy to catalyse change within the state) to consider, debate and
test ideas which might ultimately be taken back to national governments. Sub-state
government institutions avoid the political complications and consequences of
‘state’ or ‘government’ engaging with a controversial rights issue.22 At the 2009
workshop on human rights, sexual orientation and gender identity organized by
the APF, representatives from national human rights institutions in countries such
as Malaysia, Jordan, the Palestinian Territories and Indonesia, discussed questions
which could not be characterized as ‘soft’ issues within those states. Representatives
agreed upon a plan for future cooperation to develop programmes and disseminate
information to promote the issue within their states. If ideas hold power – and a
large body of international relations literature supports the case that they do – then
the network’s ability to effectively promote an idea answers the criticism concerning
the utility of networks.
The critique of networks from the perspective of how power operates within a
network is potentially damaging to a human rights network such as the APF. This
is because it suggests that within the network some nodes may be more powerful,
and that these powerful nodes may be capable of appropriating agendas and
pushing particular ideological positions, without the transparency that accompanies
domestic political processes or negotiation of international agreements.
The first answer to this critique is to question the transparency and egalitarian
basis of domestic poltical processes and international agreements themselves. As
in the argument above about accountability, all domestic and international forums
are susceptible to the influence of those with resources and energy to carry their
opinions. The power exercised within networks is no more likely to occur in what
Philip Alston calls ‘[t]he back rooms of the real new world order, where those with
power consolidate it and make the decisions which will continue to determine the
fate of the excluded’,23 than in any other forum. This chapter suggests that the
21 Kahler, op. cit. (note 6), p. 3.

22 Slaughter notes Koskenniemi’s criticism that this avoidance of political complications is a
surrender of form and validity that cedes fundamental constraints on power: Slaughter, op. cit.
(note 18), p. 193.
23 Alston, op. cit. (note 16), p. 441.
membership-based nature of the network means that ‘the excluded’ may be less
likely to be excluded in the first place and that within the network, processes allow
for the voices of both proponents and opponents of the ideas proffered within the
network to be heard.
The seond answer is to point, as the APF’s secretariat does, to the fact that
support for the network and the network’s longevity depends on its members’ trust
in its processes and their satisfaction with its deliberated outcomes. Much store is
set by the Secretariat on reflecting the views of members and on the network’s
transparency.24 Government, civil society, and network members have access to
the network’s background and briefing papers, all workshop deliberations and
outcomes, funding arrangements, and all are provided with opportunities to set
agendas and provide input into meetings.
Finally, issues of accountability, utility and power within the APF network have
been shaped by the activities of a regional civil society network, the Asian Network
on National Institutions for the Promotion and Protection of Human Rights
(‘ANNI’). ANNI was born in 2006, as an organization of NGOs from across the
region, dedicated to maintaining the independence and effectiveness of individual
human rights commissions and coordinating strategy between NGOs on thematic
issues relevant to the work of national commissions, such as the place and protection
of human rights defenders. ANNI is a mirror network of the APF – where the APF’s
membership consists of human rights institutions created and supported by states,
ANNI consists of human rights NGOs from most countries in the region which
possess a national human rights institution.25 ANNI has worked to monitor and
publicize information about the independence and effectiveness of the APF’s
members.
To date, ANNI has aimed primarily to hold the APF’s members accountable, not
the APF network itself. In its engagement with NHRIs, ANNI has operated as a
‘Transnational Advocacy Network’ (‘TAN’). 26 TANs, which were the subject of
some of the earliest network studies, are networks of actors ‘who are bound together
by shared values, a common discourse, and dense exchanges of information and
services’.27 They are ‘international issue-networks’ comprising domestic and NGOs
and international NGOs, which exert pressure on governments ‘from above’ (by
mobilizing international human rights organizations, donor institutions and great
powers) and ‘from below’ (by mobilizing national opposition groups, NGOs and
social movements), to accomplish human rights change. Sikkink argues that ‘in the
give-and-take of exposing violations, demanding explanations, providing justifi-
cations, and changing practices, states and NGOs gradually questioned traditional
24 Interview with John von Doussa, former President of the Australian Human Rights Commission,
Sydney, 18 June 2010, copy on file with author:
25 At present, no Australian or New Zealand NGOs are members of ANNI.
26 K. Sikkink, ‘Human Rights, Principles Issue-Networks, and Sovereignty in Latin America’,
International Organisation 47, 1993, p. 411.
27 M. Keck and K. Sikkink, Activists beyond Borders: Advocacy Networks in International Politics, New York:
Cornell University Press, 1998, p. 2.
understandings of sovereignty and began constructing the elements of a modified
sovereignty’.28
Critiques of networks that may be apposite for some transgovernmental networks
(that they lack accountability, that they lack utility, that they foster the agendas of
some members of the network to the exclusion of others) are less so for a network
of national human rights institutions such as the APF. Before turning to study the
nature and functions of the network, it is necessary to consider the institutions which
form the membership of the APF and which ANNI is dedicated to preserving the
independence and integrity of – national human rights institutions (NHRIs).
National human rights institutions

The premise of the argument here about the significance of the APF is that the
actors within the network, NHRIs, are themselves potentially significant actors in
the implementation of human rights. NHRIs are institutions of the state – created
constitutionally or by statute – that have a mandate to promote and protect human
rights by monitoring (and in some cases enforcing) state adherence to international
human rights law.
In 1993, the UN General Assembly endorsed the Paris Principles,29 a set of
guidelines relating to the structure, powers, functions and mandate of NHRIs. The
International Coordinating Committee of National Institutions for the Promotion
and Protection of Human Rights (ICC), accredits NHRIs with ‘A’, ‘B’ or ‘C’ status
based on its assessment of the institution’s compliance (or otherwise) with the Paris
Principles. The Paris Principles charge NHRIs with providing human rights infor-
mation, education and awareness raising; considering, advising and making recom-
mendations about human rights issues; and studying or reviewing human rights
laws and policies. In the Asia Pacific region, NHRIs also fulfil protective functions,
hearing complaints and petitions concerning individual situations and seeking
settlement through conciliation or referral to a court.
Since 1993, there has been a ‘global proliferation’ of NHRIs.30 In no region of
the world, however, has the rate of NHRI establishment accelerated as markedly
as in the Asia Pacific region. In 1993, only New Zealand, Australia, India, Indonesia
and the Philippines possessed NHRIs. There has since then been a four-fold
increase in their number within the region. It is now de rigeur for new states of
28 Sikkink, op. cit. (note 26), p. 415.

29 The Paris Principles or the Principles relating to the Status and Functioning of National Institutions
for Protection and Promotion of Human Rights were endorsed by the Commission on Human
Rights in March 1992 (Resolution 1992/54) and by the General Assembly in its Resolution
48/134 of 20 December 1993. See, eg, A. Byrnes, A. Durbach and C. Renshaw, ‘Joining the
Club: The Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and
the Advancement of Human Rights Protection in the Region’, Australian Journal of Human Rights
14, 2008, p. 63.
30 S. Cardenas, ‘Adaptive States: the Proliferation of National Human Rights Institutions’, Working
Paper T-01-04, Carr Centre for Human Rights Policy (2000).
the region or for states transitioning to democracy (Timor-Leste, Bangladesh,
Afghanistan, Iraq) to establish an NHRI. NHRIs exist within states as diverse as
the Occupied Palestinian Territories, the Maldives and Mongolia. The small island
states of the Pacific are considering how they can establish independent human
rights institutions in circumstances of limited resources and closely connected
communities. In 2010, Japan also planned to establish its own national com-
mission.31
Many within the Asia Pacific region hold the view that ‘the struggle for
international human rights is, in the end, a series of national struggles’,32 and that
NHRIs should be at the vanguard of these national struggles.33 In a region without
a supra-national human rights monitoring mechanism, where state accountability

for human rights violations rests on the ability and will of state institutions them-
selves (where they exist), there is much to support the view that NHRIs are indeed
important domestic actors.34 It is the location of a NHRI (within the state) and the
institution’s relationship to the state (as an authoritative domestic source of human
rights expertise) which makes it a human rights actor of such (potential) significance.
NHRIs can play a critical role in catalysing state responsiveness to human rights.
NHRIs have the potential to ‘legitimate the claims of domestic opposition groups
against norm-violating governments’,35 and ‘politicize human rights issues, or inject
them into national political discourse and action’.36 NHRIs can shape the state’s
‘human rights agenda’,37 and ‘shape expectations about the legitimate scope of
state authority’.38 NHRIs effect change by precipitating action from the state (which
is required to respond to the NHRIs reports, recommendations or statements).39
The theory is that states will respond by either (a) adopting more human rights-
friendly policies and practices or (b) refusing to do so, thereby highlighting the
state’s divergent practices and crystallizing domestic opposition to state power.
31 Citizens Council for Human Rights (Japan), Press Release, 23 June 2010.
32 J. Donnelly, Universal Human Rights in Theory and Practice, New York: Cornell University Press, 2002,
pp. 179–80.
33 A.-E. Pohjolainen, The Evolution of National Human Rights Institution, Denmark: The Danish Institute
for Human Rights, 2006.
34 L. Arbour, ‘Statement on the Opening of the 61st Session of the Commission on Human Rights’,
Geneva, 14 March 2005, available at: <http://www.unhchr.ch/huricane/huricane.nsf/0/
527ED2F6E7DD06ADC1256FC40040> (accessed 1 June 2009).
35 T. Risse and K. Sikkink, ‘The Socialization of International Human Rights Norms into Domestic
Practices: Introduction’, in T. Risse, S. Ropp and K. Sikkink (eds), The Power of Human Rights:
International Norms and Domestic Change, Cambridge: Camrbidge University Press, 1999, p. 5.
36 Cardenas, op. cit. (note 30), p. 5.
37 Ibid, p. 45.
38 Ibid, p. 51. The language of ‘socialization’ and ‘sensitization’ to human rights issues pervades
social science literature on NHRIs. Its origins are the arguments about ‘soft power’ of which Joseph
Nye is the principal proponent: J. Nye, ‘Soft Power’, Foreign Policy 80, 1990, p. 153.
39 States are not, in most cases, ‘legally’ required to respond to NHRI reports: though some NHRIs
are required to submit reports to Parliament, where their contents may be debated. But the
position of NHRIs as creations of the state itself means that, politically, governments must usually
respond in some form.
The experience of NHRIs in Asia and the Pacific provides some support for the
theory of how NHRIs catalyse change. Some NHRIs have successfully effected
legislative change – the National Human Rights Commission of Fiji, for example,
successfully lobbied for the repeal of the death penalty in 2002. Some NHRIs have
been unsuccessful in convincing governments to change policies or laws, but their
efforts have become a focal point for civil society and political opposition to govern-
ment policies. For example, SUHAKAM, Malaysia’s Human Rights Commission,
failed to secure the repeal of repressive provisions of Malaysia’s Internal Security
Act (ISA) but the Commission’s strong criticism of the Act legitimized civil society’s
protest against the ISA.
While some NHRIs have had significant impact in effecting change, the inde-
pendence and effectiveness of NHRIs across the region is variable and dependent
on (changing) personalities within commissions and governments, as well as
changing political dynamics within the state. Some NHRIs have been paralysed
in situations of conflict (as in Sri Lanka in 2007–08 and Nepal in 2005–06), and
others succumb to politicization (as in Fiji after the military coup in 2006).
Perhaps the most common failing of NHRIs is that they become (perhaps
temporarily) irrelevant. Many NHRIs seek a path between building relationships
with government so that they can collaborate on human rights policy, and being
independent enough to criticize government when the government’s human rights
programme falls short. This is a difficult line to walk and at different periods, some
commissions become – or are perceived to be – sidelined and their authority can
be ‘terribly fragile’.40
This chapter shows that the linking of state-based human rights institutions
through a regional network (APF) has produced change, in two central respects.
First, the APF network as an actor has been able to undertake activities and effect
policy change that individual members acting unilaterally or in a group in some
other form, would not have been able to. Secondly, the APF as a network, has
shown an ability to influence the behaviour of its members. Members (or those
wishing to assume membership) of the network have undertaken activities and
behaved in certain ways because of the network’s influence on them, or because of
the fact of their membership (or desired membership) of the network.
The APF
Over the past 20 years, there have been efforts in sub-regions (notably ASEAN and
the Pacific) to create sub-regional human rights bodies. The nascent ASEAN inter-
governmental regional human rights body, the AICHR – born of the most fully
formed and active of Asia and the Pacific’s sub-regional groupings – was first
proposed in 1993, was finally established in 2009 and has yet to agree on the terms
40 Interview with John von Doussa, former President of the Australian Human Rights Commission,
Sydney, 18 June 2010, copy on file with author. The Australian Human Rights Commission was
formerly the Australian Human Rights and Equal Opportunity Commission.
of a charter or convention. The ASEAN initiative spurred calls from NGOs within
SAARC for the establishment of a human rights body within that sub-region.41
The Pacific Charter of Human Rights, drafted by the civil society group LAWASIA
in 1985,42 has not been supported by the governments of the Pacific. Even within
these more homogenous sub-regional groupings, states are reluctant to commit to
supra-national organizations for oversight of domestic human rights. In part, this
reluctance is born of concerns about capacity to implement the terms of any treaty
or charter, concerns about sovereignty and loss of control, and fear of the con-
sequences of over-legalization of human rights commitments. It is not clear to
governments within the region whether supra-national judicial interpretation of
human rights treaty obligations would be reconcilable with domestic preferences,

or with the state’s capacity to implement its treaty obligations.
What one commentator has described as the Asia Pacific region’s ‘low legal-
ization and possibly explicit aversion to legalization’,43 can be contrasted with the
success of the region’s many networks and in the field of human rights, the strength
and longevity of the region’s network of national institutions, the Asia Pacific
Forum. The APF was formed in 1996, with a membership of the national
commissions of Australia, India, Indonesia and New Zealand. The APF’s first
meeting gave rise to the Larrakia Declaration, in which the nascent human rights
organizations agreed on several fundamental points. First, regional cooperation is
essential to ensure the effective promotion and protection of human rights.
Secondly, the promotion and protection of human rights is the responsibility of all
sectors of society and all those engaged in the defence of human rights should work
in concert to secure their advancement. Thirdly, national institutions should work
in close cooperation with NGOs and, wherever possible, with governments to
ensure that human rights principles are fully implemented in substance, with the
aim of effective outcomes. Fourthly, that to ensure their effectiveness, credibility
and independence, the status and responsibilities of national institutions should be
consistent with the Paris Principles.44
The APF began its life as an informal regional forum of NHRIs, whose members
agreed to share expertise and information on best practice, to undertake joint
projects and develop joint positions on issues of common concern, and to hold
periodic regional meetings. By 2002, the APF’s work was defined by three core
activities: strengthening the capacity of individual APF member institutions to
41 Informal Sector Service Centre (INSEC), ‘SAARC: It’s Time to Establish Human Rights Body!’,
available at: <http://www.indigenousportal.com/Human-Rights/SAARC-It-s-time-to-establish-
human-rights-body.html> (accessed 17 June 2010).
42 On the history of proposals for a regional mechanism in the Pacific, see K. Hay, ‘A Pacific Human
Rights Mechanism: Specific Challenges and Requirements’, Victoria University Wellington Law Review
40, 2009, p. 195; V. Toki and N. Baird, ‘An Indigenous Pacific Human Rights Mechanism: Some
Building Blocks’, Victoria University Wellington Law Review 40, 2009, p. 215.
43 M. Kahler, ‘Legalization as Strategy: The Asia-Pacific Case’, International Organisation 54, 2000,
p. 549 at p. 549.
44 Larrakia Declaration, available at: <http://www.asiapacificforum.net/about/annual-meetings/
1st-australia-1996/downloads/larakia> (accessed 17 June 2010).
enable them to undertake their national mandates; assisting governments and
NGOs to establish national institutions in compliance with the Paris Principles;
and promoting regional cooperation on human rights.
A major initiative of the APF’s early period was the creation of the Advisory
Council of Jurists (ACJ) in 1998, comprising former judges, human rights and
international law academics and practitioners, nominated by APF member
institutions. The ACJ provides advice to APF and its member NHRIs on the
interpretation and application of international human rights standards to human
rights issues of common importance, and its reports on a range of topics, including
torture, the right to education, human trafficking and the environment have
contributed to the development of regional human rights jurisprudence.

In 2010, the APF’s membership numbered 17,45 with national commissions in
every sub-region of Asia and the Pacific, from Jordan to Timor Leste. NHRIs are
in the process of being created in Bangladesh, Pakistan, Iraq, Bahrain, Samoa,
Nauru, Papua New Guinea and Japan. The APF’s members include NHRIs from
states with long-established and stable democracies, states transitioning to
democracy from long periods of authoritarian rule, and semi-authoritarian states.
The network is inclusive to the maximum possible extent: although only NHRIs
which meet Paris Principles standards are ‘full members’ of the APF, the network’s
information, deliberations and conferences are open to all relevant and affected
parties: governments, civil society representatives, NHRIs which are not yet fully
independent from the state, and representatives of states which have yet to establish
NHRIs.
There are two principal reasons why the APF has appealed to members and why
the network form of implementing human rights at a regional level has met with
such success.46 One reason concerns the structure of networks vis-à-vis formal institu-
tions, and the other concerns the perceptions about processes through which deci-
sions within the network are made.
In terms of the structure of the APF network, membership is open to all national
human rights institutions. Full membership is open to all institutions that comply
with agreed-upon standards (which are applied by peers) of independence from the
state, a broad mandate and pluralist membership. The fact that an NHRI is
independent from the state and that its object is to act autonomously enables it to
easily join and participate in the network. For example, in 1995 the Australian
Human Rights and Equal Opportunity Commission (HREOC) proposed the idea
of creating a ‘Forum’ of the region’s national human rights institutions to the
Australian Minister for Foreign Affairs and Trade, Alexander Downer. Mr Downer
45 In 2010, members of the Asia Pacific Forum were: Afghanistan, Australia, India, Indonesia,
Jordan, Malaysia, the Maldives, Mongolia, Nepal, New Zealand, the Palestinian Territories, the
Philippines, Qatar, the Republic of Korea, Sri Lanka, Thailand and Timor Leste.
46 In 2008–10, researchers at the University of New South Wales conducted semi-structured
interviews with human rights commissioners, members of government and civil society leaders in
Malaysia, Australia, Nepal, Jordan, New Zealand and Samoa. The information obtained in these
interviews, transcripts of which are on file with the author, inform the views expressed.
informed HREOC that states such as India, Indonesia and the Philippines would
never agree to such a proposal.47 But HREOC’s proposal was not put to the states
– it was put to their NHRIs, autonomous entities which are capable of (and are
expected to) act independently of the state. These NHRIs supported the proposal.
State participation in a formal international institution is far more problematic.
The obvious point about NHRI membership of APF is that, compared to state
membership of a regional organization, the cost of joining is comparatively low.
In contrast to accepting the jurisdiction of a regional commission or court, there is
no diminution of state sovereignty flowing from a human rights institution’s
membership of a regional network. The cost of disengaging from a network is also
comparatively low compared to the cost of withdrawing from an international

treaty or organization. ‘[A]lthough most treaties entail opt-outs and provisions for
withdrawal, the high visibility and legally binding status of treaties means there
may be high political costs to withdrawing or pulling back from implementing a
specific initiative’.48 Within a network, it is also possible for network members to
vary their levels of commitment to different issues – to play a prominent role in
relation to implementing some decisions, to withdraw from others. This contrasts
with treaty obligations, where ‘precise objectives are set out in detailed written
agreements that provide clear definitions of acceptable and unacceptable
behaviour’.49
The second factor explaining why NHRIs, from such diverse regions and
political systems, have sought to join and engage with the network concerns the
perceptions that the processes which underpin its decision-making are fair,
transparent and inclusive. The perception is that within the APF’s decision-making
body (its Council), the discursive practices leading to decisions are not determined
by the comparative wealth, power or influence of certain members. Unlike (some)
international institutions, the network deliberations are not ‘strong nations dictating
terms to weaker nations’.50 Instead, when the APF Council makes decisions that
impact upon how the resources of individual institutions are allocated, the per-
ception is that it proceeds on a principle of equality of participation. This is the
basis of the network’s legitimacy and the reason why it has achieved its impressively
diverse membership.
The perception that the ideals of deliberative democracy are being applied within
this network51 is borne out by close objective observation of the decision-making
processes of the Council and the results of these processes. Within the APF, it does
seem to be the case that a NHRI’s influence within the Council is not the result of
47 Interview with Chris Sidoti, Sydney, 23 February 2010; copy on file with author.
48 M. Eilstrup-Sangiovanni, ‘Varieties of Cooperation Government Networks in International
Security’, in M. Kahler (ed.), Networked Politics: Agency, Power and Governance, New York: Cornell
49 Ibid, pp. 198–200.
51 J. Cohen, ‘Deliberation and Democratic Legitimacy’, in Alan Hamlin and Philip Pettit (eds), The
Good Polity: Normative Analysis of the State, New York: Basil Blackwell, 1989, pp. 17–34.
its fiscal capacity or its state’s wealth and power, but rather the result of the degree
to which: (a) the NHRI itself is representative of the constitutive ideals of the
association; (b) the proposition being put forward by the NHRI aligns with the
articulated collective ideals of the network; and (c) the powers of persuasion of the
individual human rights commissioner proposing an idea. Thus Fiji, holding a
minor role on the stage of world affairs, was until 2006 a significant player within
the APF.52 The Fiji Human Rights Commission was independent and energetic,
its Director was charismatic and convincing, and her proposals put forward in APF
meetings matched with the concerns and convictions of fellow commissioners.53
The influence of different network members waxes and wanes over historical
periods as personalities within the network change – a reflection of (and contri-

buting to) the characteristic of networks as ‘dynamic in process and structure’.54
But it can be argued that within the network there remains the potential for NHRIs
whose views might otherwise be discounted, to be significant – or at least equal –
players. This is one of the strengths of the network form of organization and one
of the reasons why in the Asia Pacific region, in the field of human rights, it has
been very successful.
Holding networks accountable: the ANNI

In her defence of transgovernmental networks, Slaughter links their accountability
with the ultimate accountability of their members to government and the domestic
constituencies to which government answers. For NHRIs, the institution’s necessary
independence from government complicates this source of accountability. In the
Asia Pacific region, another source of accountability for NHRIs has emerged:
NGOs. NGOs within the Asia Pacific region have recognized the potential power
of NHRIs to galvanize government responsiveness to human rights issues. They
have also recognized the potential for NHRIs which are not independent of the
state, to become tools for government propaganda or facades for government
inaction on human rights issues.
Observing the successful information-sharing, capacity-building and support
provided to individual NHRIs by the regional network of institutions (the APF),
NGOs within the region have developed their own mirror network, the ANNI.55
52 Interview with Kieren Fitzpatrick, Director of the Asia Pacific Forum of National Human Rights
Institutions, Sydney, December 2009; copy on file with author.
53 Similarly, the New Zealand Human Rights Commission, with a strong reputation for
independence and respected human rights commissioners, has been influential within the APF
Council.
54 W. Reinicke and F. Deng, ‘Critical Choices: The United Nations, Networks and the Future of
Global Governance’, International Development Research Centre, 2002, available at:
<http://www.idrc.ca/en/ev-9312-201-1-DO_TOPIC.html> (accessed 8 February 2010).
55 ANNI was established in 2006 as civil society’s counterpart to the region’s network of national
human rights institutions. ANNI comprises some of the largest and best-resourced NGOs in the
region: Forum-Asia (Bangkok), People’s Watch (India), SUARAM (Malaysia), and Imparsial
(Indonesia). It includes civil society representatives from states with established NHRIs and from
The ANNI’s objective is to encourage the operation of effective NHRIs which
comply with the Paris Principles: in particular, that are transparent, accountable,
independent institutions which have a mandate to protect a wide range of human
rights and which are led by human rights commissioners who are representative of
society (including women and those from diverse racial and religious backgrounds).
The network functions as a source of information to members (on international
standards relating to NHRIs, on particular strategies for NGO engagement with
NHRIs, on challenges faced by human rights defenders) and assists members in
providing critiques of the institutions within their own state. The ANNI has also
been involved in advocacy in defence of NHRI’s at risk from their own states.56
The ANNI’s engagement is thus on multiple levels: with NGOs and INGOs,57
with NHRIs, with government, with the APF58 and with various UN bodies.59 In
some cases, the ANNI reminds NHRIs of their duties in relation to human rights
defenders. In December 2008, for example, the ANNI wrote to the chairperson of
the Islamic Human Rights Commission of Iran, requesting that the Commission
protest about the government’s closure of the Protectors of Human Rights Centre
in Tehran in December 2008.60 In other cases, the ANNI reminds the state of its
obligation to support truly independent and resourced NHRIs. In 2009, the ANNI
protested to the government of South Korea about its intention to heavily reduce
funding for the National Human Rights Commission of Korea, which would have
resulted in the closure of offices and reduction of staff.61
Some of the ANNI’s most effective activities have been its engagement with the
ICC’s Sub-Committee on Accreditation. In 2008, the ANNI submitted information
to the Sub-Committee in relation to the reaccreditation of Malaysia’s human rights
commission (SUHAKAM)62 and the National Human Rights Commission of
states where civil society is agitating for the establishment of NHRIs (Taiwan, Pakistan, Cambodia,
Singapore, Japan, Bangladesh). ANNI produces each year a report on the work of each NHRI
within the region. It is possible to discern, between ANNI’s first report (2006) and its most recent
(2009), a marked increase in the sophistication of the critique being applied by domestic civil
society to its NHRI.
56 Interview with Emerlynne Gil, Amman, 5 August 2009; copy on file with author.
57 Such as the International Service for Human Rights, International Womens Rights Action Watch
(Asia Pacific), Asia Pacific Human Rights Information Centre (HURIGHTS-OSAKA).
58 The ANNI makes submissions on behalf of members to the Forum Council at the APF’s Annual
Meetings.
59 For example, the ANNI’s parent body, the Asian Forum for Human Rights and Development
(Forum-Asia), represents Asian NGOs in Dialogues with Special Rapporteurs.
60 ‘Letter from Emerlynne Gil, Coordinator, Asian NGOs Network on National Institutions to Mr.
Mohammed Hassan Ziaifar, Chairperson Islamic Human Rights Commission of Iran’, available
at: <http://www.iranhumanrights.org/2009/01/anni-ihrc/> (accessed 30 June 2010). For a
response to the ANNI letter from the Islamic Human Rights Commission of Iran, see its website
at: <http://www.iranhumanrights.org/2009/01/ihrc-response/> (accessed 30 June 2010).
61 Asian NI Watch, ‘South Korea Government Announce Personnel Reductions for NHRCK’,
1 March 2009, available at: <http://www.forum-asia.org/news/press_releases/pdfs/NI%20
Watch_Issue1.pdf> (accessed 30 June 2010).
62 See ‘Summary Special Review of the Human Rights Commission of Malaysia to the International
Coordinating Committee of National Human Rights Institutions’, November 2009, available at:
Nepal.63 The ANNI’s communications contributed to the Sub-Committee’s
decision that both commissions should remain under review and that their ‘A’ status
accreditation was in jeopardy. The response of the Malaysian government was to
propose two sets of legislative amendments to SUHAKAM’s establishing Act, with
the intention of improving the institution’s compliance with the Paris Principles.64
Clearly, ‘A’ status accreditation mattered to Malaysia’s government and the ANNI
leveraged the Malaysian government’s concern over its international reputation to
effect changes to the commission.
The ANNI thus operates as a classical TAN, working to exert pressure from above
(from the ICC Sub-Committee and through the APF) and below (from domestic
civil society and political opposition parties) to extract concessions from the
government. The ANNI’s success in pursuing the dialogue of ‘modified sovereignty’
has spawned sub-networks of NGOs dedicated to establishing or improving NHRIs.
In August 2009, at the APF’s Annual Meeting in Jordan, NGOs from the West Asian
region agreed to establish ‘ARNNI’, the Arab NGOs Network on National
Institutions.65
Networks and the dynamics of human rights change

One critic has written that it is ‘fiendishly difficult’ to measure what it actually is
that horizontal networks achieve – ‘change measured not by bureaucratic activity,
but “real-world” change’.66 It is possible, however, to measure the imprint left by
actors such as the APF and the ANNI on discrete issue-areas: the negotiation of an
international convention, for example, or the promotion of a particular platform
within a forum such as the Human Rights Council. Notable network successes in
this regard include the coordinated involvement of NHRIs in drafting the CRPD
and the Optional Protocol to CAT, both of which ascribe monitoring functions to
NHRIs.67 It is also possible to measure the network’s influence on the establishment
of new NHRIs (both by the number of new NHRIs established and by the structure
and mandate of the NHRI established, which usually, in the main, follows the ‘best
practice’ advocated by the APF Secretariat). Carver, for example, has noted that
<http://www.nhri.net/2010/SUMMARY%20special%20review%20Malaysia.pdf> (accessed
16 June 2010).
63 ‘Special Review of the Nepal Human Rights Commission to the International Coordinating
Committee of National Human Rights Commissions’, November 2009, available at:
<http://www.nhri.net/2010/SUMMARY_NEPAL.pdf> (accessed 30 June 2010).
64 See the Human Rights Commission of Malaysia (Amendment) Bill 2009, adopted 25 March 2009;
further amendments were passed on 2 July 2009: ‘Two More Changes to Suhakam Act’, The Star
Online, 8 May 2009, available at: <http:thestar.com.my/news/story.asp?file=/2009/5/8/nation/
3857954&sec=nation> (accessed 15 September 2010).
65 Announced at the APF’s 14th Annual Meeting in Amman, Jordan, 3–6 August 2009.
66 Anderson, op. cit. (note 15), p. 1278.
67 See Chapter 4 of this book. See also R. Carver, ‘A New Answer to an Old Question: National
Human Rights Institutions and the Domestication of International Law’, Human Rights Law Review
10, 2010, p. 1.
a high proportion of NHRIs within the Asia Pacific region have a mandate to apply
international human rights treaty law, even where treaty rights are not explicitly
contained in national law.68
Network theorists suggest that the power of networks goes beyond facilitating
such concrete successes.69 Slaughter, for example, argues that a network has an
ability to influence the behaviour of its members. Members (or those wishing to
assume membership) of the networks have undertaken activities, behaved in certain
ways, because of the network’s influence on them, or because of the fact of their
membership (or desired membership) of the network.70
This is a more difficult proposition to establish. Terms such as ‘acculturation’
have been used to describe a process whereby through meetings, dialogue and the
reciprocation of information, there are shifts in understandings and the eventual
adoption of perspectives that conform to network norms.71 But the ‘microfounda-
tions of network influences’,72 the specifics of how this occurs, has proved difficult
to demonstrate. It requires close study of personalities, of the actual individual
actors who are ‘driven to conform, to act consistently with their identity and social
roles, and to enjoy the psychological benefits of group norms and expectations’.73
This chapter provides an insight into network processes through a study of the
APF network’s treatment of a particular (controversial) issue-area – rights violations
on the basis of sexual orientation and gender identity. The case study, which draws
on interviews conducted throughout the region with human rights commissioners,
government representatives and members of civil society,74 lends insight into the
way institutions which lie within the state are shaped by participation in a network
of their international peers. Case studies assist in refining constructivist theories
which hold that ‘states’ are social actors, which can be fashioned by international
social influences.75 Looking at the processes of change in relation to a discrete issue,
68 Carver, op. cit. (note 67).

69 Slaughter, op. cit. (note 5), pp. 198–200.
70 Critics of the ideas of soft law and socialization that underpin these network effects, such as
Koskenniemi, worry that networks can serve as a mask for preferences shaped by hegemonic
interests: M. Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in
International Relations’, in M. Byers (ed.), The Role of Law in International Politics. Essays in International
Relations and International Law, Oxford: Oxford University Press, 2000, pp. 17–34. Other writers
are concerned about a process that aims to ‘enmesh [illiberal states] in a system of transnational
networks designed to ease them into the liberal-democratic legal order’: G. Simpson, ‘Two
Liberalisms’, European Journal of International Law 12, 2001, p. 537 at p. 569.
71 R. Goodman and D. Jinks, ‘How to Influence States: Socialization and International Human
Rights Law’, Duke Law Journal 54, 2004, p. 620.
72 E. Hafner-Burton, M. Kahler and A. Montgomery, ‘Network Analysis for International Relations’,
International Organisation 63, 2009, p. 559 at p. 584.
73 J. Alvarez, ‘Do States Socialize?’, Duke Law Journal 54, 2005, p. 961 at p. 969.
74 In Australia, Malaysia, Jordan, Nepal, Samoa, New Zealand, Thailand, in 2008, 2009 and 2010;
transcripts on file with the author.
75 M. Finnemore, ‘International Organisations as Teachers of Norms: The United Nations
Educational, Scientific, and Cultural Organisation and Science Policy’, International Organsiation
47, 1993, p. 565.
it becomes clear that the ‘social actors’ are individuals within the institutions which
compose the state. Individuals are influenced by and influence other individuals
within other institutions. These institutions then engage in domestic politics, which
can help shape state preferences.
Within the Asia Pacific region, rights violations on the basis of sexual orientation
or gender identity include arbitrary execution, extra judicial killing, rape, torture,
arbitrary detention, unfair trial and lack of due process, the rape of women for the
purpose of changing their sexual orientation, forced pregnancy and forced
marriage.76 These violations can occur at the hands of state officials and authorities
and at the hands of non-state actors, often with the actual or implied complicity of
state actors and often with impunity.77 But for many countries within the region,
sensitivity to religious considerations has precluded political advocacy on behalf of
those whose rights are violated.
The issue is particularly interesting to study from a network perspective, because
it is clearly not a ‘collective action problem’ (like human trafficking or the rights of
migrant workers), where there is a practical incentive for states to cooperate and
coordinate their responses to the issue at a regional level. The NHRIs of the Asia
Pacific region do not have potentially ‘complementary policies and interests’78 on
the subject of individual rights in relation to sexual orientation. Therefore, if NHRIs
are developing standards for addressing this issue at a regional level, then some
process, other than practical concerns about achieving outcomes through joint
action, must be at work.
The case study in this chapter describes the gestation of an issue-area (rights in
relation to sexual orientation and gender identity) within a regional community of
NHRIs. In terms of a normal ‘life cycle’,79 the network’s promotion of this issue
represents an aspect of the first stage, ‘norm emergence’, which precedes norm
acceptance (or ‘cascade’) and (eventually, under certain conditions) leads to norm
‘internalization’. While many studies have concerned themselves with the impact
of norm cascades on state behaviour and decision making,80 fewer have considered
the detail of how and why certain issues emerge in the first place.81 By examining
76 See, eg, International Commission of Jurists, ‘International Human Rights References to Human
Rights Violations on the Grounds of Sexual Orientation and Gender Identity’ Geneva, October
2006, available at: <http://www.icj.org/IMG/UN_references_on_SOGI.pdf> (accessed 29
September 2010).
77 M. O’Flaherty and J. Fisher, ‘Sexual Orientation, Gender Identity and International Human
Rights Law: Contextualising the Yogyakarta Principles’, Human Rights Law Review 8, 2008, p. 207.
78 R. Keohane, ‘The International Energy Agency: State Influence and Transgovernmental Politics’,
International Organisation 32, 1978, p. 929 at p. 931.
79 M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’, International
Organization 52, 1988, p. 887.
80 P. Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’,
International Organisation , 46, 1992, p. 1.
81 An exception is Carpenter’s work on issue (non)-adoption in transnational advocacy networks;
R. Charli Carpenter, ‘Studying Issue (Non)-Adoption in Transnational Advocacy Networks’,
International Organisation 61, 2007, p. 643.
how the issue of rights in relation to sexual orientation and gender identity is picked
up by the APF network and is referred to its Advisory Council of Jurists, attention
is drawn to some of the key questions about networks, socialization and human
rights. First, how can networks as actors, advance a particularly challenging human
rights issue-area? Secondly, to what extent do the network’s activities affect the
views and actions of individual members? Thirdly, how does dialogue and exchange
(‘socialization’) encourage the emergence of common views within the network?
Networks and difficult issue-areas: the Asia Pacific

region and human rights violations on the basis of
sexual orientation and gender identity

The APF’s Annual Meeting is attended by national and international NGOs,
government members, representatives of UN bodies and commissioners from
NHRIs across the Asia Pacific region. The APF Council (commissioners of NHRIs)
discusses collaborative work-plans, new membership applications, and human
rights issues of common concern. In July 2008, the APF’s Annual Meeting took
place in Kuala Lumpur, Malaysia, hosted by SUHAKAM, the Human Rights
Commission of Malaysia.
The 2008 Forum Councillors Report, prepared by the APF Secretariat and
distributed to human rights commissioners from countries such as the Palestinian
Territories, Jordan, Indonesia and Malaysia, contained a proposal for a workshop
on ‘sexuality and the role of NHRIs’ and a proposal to prepare a policy paper on
‘NHRIs and the Yogyakarta Principles’. The Yogyakarta Principles are a statement
of state obligations under international law to respect, protect and fulfil the human
rights of all persons, regardless of their sexual orientation or their gender identity.82
Within some of the predominantly Islamic countries of the region83 – several of
whose NHRIs were represented at the APF’s 13th Annual Meeting in Kuala
Lumpur – these issues had not previously been examined. Nonetheless, the pro-
posal passed without comment and the Forum Councillors approved the draft
annual plan for 2008–09.
The APF workshop was held in May 2009 in Yogyakarta, Indonesia, at the same
place where the Yogyakarta Principles had been agreed upon three years previously
by a group of international human rights experts. The Yogyakarta Principles
specifically call for states to ‘(i) take all necessary legislative, administrative and
other measures to eradicate impugned practices on the basis of sexual orientation
and gender identity (ii) implement protection measures for those at risk (iii) seek
accountability of perpetrators and redress for victims (iv) promote a human rights
culture by means of education, training and public awareness-raising’.84 It is
82 Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation
and Gender Identity, available at: <http://www.yogyakartaprinciples.org/> (accessed 29
September 2010).
83 For example, Malaysia, Jordan and the Palestinian Territories.
84 The Yogyakarta Principles, op. cit. (note 82).
significant that the APF’s 2009 workshop was the first time anywhere in the
world that a forum of NHRIs had considered these subjects, despite the Yogyakarta
Principles recommending that NHRIs address such issues.85
The APF’s Yogyakarta meeting was hosted by the National Commission on
Human Rights of Indonesia and chaired by the APF’s 2008 chair (the Human
Rights Commission of Malaysia). The Deputy Chairs were the Australian Human
Rights Commission (the outgoing chair) and the Jordan National Centre for
Human Rights (the incoming chair). The workshop was attended by one member
from each APF sub-region: Nepal (for South Asia), New Zealand (for the Pacific),
Palestine (for West Asia), Korea (for North Asia) and Thailand (for Southeast Asia).
The point made by the Yogyakarta Principles – that the major human rights
documents prohibit discrimination on the basis of sexual orientation and gender
identity and that states should uphold this prohibition – was not initially accepted
by all participants. Jordan’s National Centre for Human Rights crystallized the
concerns of many of the NHRIs from Islamic countries (particularly Malaysia
and the Palestinian Territories). Jordan’s National Centre maintained that an
individual’s sexual orientation is a private affair which can be exercised within the
framework of individual practices, but is not an ‘absolute right’. Thus, sexual
practices could be restricted ‘in order to protect the national security, and the public
order, public health and public morals’.86 Jordan also drew attention to the Arab
Charter of Human Rights,87 which Jordan has ratified. The Charter states that the
family is the natural and fundamental unit of the society, and that the marriage
between a man and a woman is the basis of its formation.88 The Jordanian Centre
for Human Rights warned that addressing the issue would risk the cause of human
rights generally in Jordan, and contravene ‘the religious, social and moral values
of the Jordanian and Arab and Islamic societies’.89
The Malaysian Human Rights Commission, SUHAKAM, also expressed
reservations on the grounds of religion in calling for ‘the whole society’s religious,
moral and cultural sensitivity . . . [to] be given due respect in determining the extent
of LGBT rights’.90 SUHAKAM argued further that the ‘state legislated Syariah
laws applicable to Muslims, lay down certain prohibitions based on Islamic moral
values, preserving teachings of Islam’ and that such prohibitions do not infringe
human rights.91
85 Ibid.
86 Available at: <http://www.asiapacificforum.net/issues/sexual_orientation> (accessed 25 January
2009).
87 International Human Rights Reports 12, 2005, p. 893 (entered into force 15 March 2008).
88 Arab Charter of Human Rights, art. 38(a). On the (in)compatibility of the Arab Charter of Human
Rights and international standards, see ‘Statement by UN High Commissioner for Human Rights
on the Entry into Force of the Arab Charter on Human Rights’, Geneva, 30 January 2008, available
at: <http://www.pointdebasculecanada.ca/spip.php?article238> (accessed 15 September 2010).
89 See records of statements and interventions, available at: <http://www.asiapacificforum.net/
issues/sexual_orientation> (accessed 25 January 2010).
90 Ibid.
91 Ibid.
What is surprising is that despite these concerns, the Workshop’s Concluding
Statement included requests that the Asia Pacific Forum and its Secretariat
continue to promote and support NHRI work on the issue of sexual orientation
and gender identity (through provision and exchange of information, training
programs, staff exchanges) and that the Secretariat refer the issue to the APF’s
Advisory Council of Jurists (ACJ), for report and discussion at the APF’s 15th
Annual Meeting in 2010. As part of the ACJ reference, jurists would ‘review and
advise whether laws in states whose national human rights institutions are members
of the APF are consistent with international human rights law in their application
in relation to sexual orientation and gender identity and what amendments to
existing laws or what new laws are required to ensure consistency’.92 During the
APF’s Annual Meeting, NHRIs would be invited to present a report on their
activities in relation sexual orientation and gender identity.93
Because of the agreement to refer the issue to the ACJ, the Concluding Statement
of the 2009 Yogyakarta workshop presages significant consequences for NHRIs in
Asia and the Pacific. The ACJ was established with the aim of providing the NHRIs
with authoritative and independent advice on the interpretation and application
of international human rights law.94 The ACJ is comprised of ‘eminent jurists’ (who
have held high judicial office or senior academic or human rights appointments
within the state), nominated by each NHRI member of the APF.95 Jurists confer
on questions relating to the interpretation and application of international human
rights standards, with a view to developing a regional jurisprudence.
The decision to refer the issue of sexual orientation and gender identity to the
ACJ means that this body will be requested to produce an independent, authori-
tative statement on the interpretation and application of international human rights
standards relating to this area. As a result of a review process and consequent
reforms to the ACJ in 2008,96 the ACJ’s report will also make recommendations
to individual NHRIs about how to implement these standards. NHRIs will be
required to report back, at APF Annual Meetings, on what steps, if any, they have
taken to implement the standards. The issue of human rights, sexual orientation
and gender identity will be on the agenda of 14 of the APF members. The APF’s
Deputy Director, Pip Dargan, who attended the Yogyakarta Workshop, observes
that there was a consensus that it was indeed a human rights issue, that it was the
92 Ibid.
93 Ibid.
94 Interview with Chris Sidoti, former Australian Human Rights Commissioner, Sydney, 23
February 2010; copy on file with author.
95 ACJ members holds the position for a three-year term, which may be renewed twice: see ACJ
Terms of Reference, available at: <http://www.asiapacificforum.net/acj> (accessed 16 June
2010).
96 ‘Changes made to Advisory Council of Jurists’, available at: <http://www.asiapacificforum.
net/news/changes-made-to-advisory-council-of-jurists.html/?searchterm=ACJ%20Review>
first time that NHRIs anywhere addressed this sensitive topic, and the very
commencement of dialogue is significant.97
Consider one aspect of the issue of human rights and sexual orientation –
consensual male-to-male sex. Of the APF’s 17 members, this practice is crimi-
nalized within the states of seven of them.98 In Iraq, Bangladesh, Pakistan, Samoa
and Papua New Guinea, where NHRIs are established or are in the process of
being established (potential APF members), male-to-male consensual sex is also a
crime.99 In the Asia Pacific region, it would be impossible at present to secure
widespread, state-level participation in a treaty, convention or declaration on the
subject of human rights, sexual orientation and gender identity. Attempting to
secure state compliance with international human rights norms through the
development of binding, enforceable international obligations, would be a fruitless
endeavour.
In relation to the question of how networks as actors can advance particular
human rights issue-areas, what the APF network has attempted to secure is a
commitment to implement standards by NHRIs, which will be measured in their
success or failure by a group of their peers. What has been put in train is a twofold
process: first, the APF network has advanced the acceptance of a particular norm
with its member NHRIs, a norm that many NHRIs may not have examined.
Secondly, as a result of the reference to the ACJ, the network has created an
expectation that NHRIs will engage in a discourse with the state about the
application of this norm within the national context.
This process is less ‘soft law’ than ‘back-door law’, and the process is necessarily
a circuitous and an incremental one. The statements of the Malaysian and
Jordanian human rights commissions at the workshop indicate that some NHRIs
themselves may at present deny the validity of the norms. Even if the NHRIs accept
the norms, the exhortations of NHRIs to the state (to repeal discriminatory
legislation, to educate police, the judiciary, health-care professionals, in the pro-
tection of these vulnerable groups, for example) may not be immediately heeded.
But there is an argument that even denial is part of a process of socialization to
human rights norms – as a consequence of being compelled to deny the validity of
a norm, the state is ‘made aware that it faces a problem in terms of its international
reputation’.100 Social scientists have argued that networks such as APF, and NGOs
97 Interview with Pip Dargan, Deputy Director Asia Pacific Forum of National Human Rights
Institutions, Sydney, 18 November 2009; copy on file with author.
98 Afghanistan, the Maldives, Sri Lanka, Malaysia, Jordan, the Palestinian Territories and Qatar:
‘Punitive Laws, Human Rights and HIV Prevention among Men Who Have Sex with Men in
Asia Pacific’, Report on High Level Dialogue organized by the UN Development Program
(‘UNDP’) in association with the Asia-Pacific Coalition on Male Sexual Health (‘ACPOM’) and
the Center for Comparative and Public Law (‘CCPL’) at the Faculty of Law, The University of
Hong Kong, available at: <http://www.fridae.com/newsfeatures/2010/05/24/9966.19-of-48-
countries-in-the-asia-pacific-region-criminalise-male-to-male-sex> (accessed 30 June 2010).
99 Ibid.
100 Risse and Sikkink, op. cit. (note 35), p. 24.
and INGOs, are able to use the pressure of reputation (and material pressure such
as funding and aid) to secure ‘tactical concessions’ from state actors. States who
make tactical concessions ‘can become entrapped in their own rhetoric’,101 and
real concessions to the legitimacy and prescriptive status of a norm may (eventually)
be made.
In relation to the question of how the network’s activities affect the views of its
individual members, it is interesting to consider how it is that representatives of
two human rights commissions, Jordan and Malaysia, which oppose the human
rights principle under consideration nonetheless committed their institutions to
partaking in further concrete steps to measure the gap between the norm and
practice in their state. It is useful in this respect to consider what Alvarez describes
as ‘the force and relevance of distinct personalities’.102 Attendees of the workshop
are clear that there was among participants a wide range of views about the subject
under consideration and that there was, especially initially, reluctance on the part
of some NHRI representatives to accept that discrimination on the basis of sexual
orientation, existed.103 Attendees also report the powerful influence of certain
participants, such as Vitit Munthabhorn from Thailand whose manner and the
substance of their presentations profoundly impacted on others.104
What occurred at the Jogyakarta Workshop generally supports the ‘well-
established empirical finding’ that ‘intragroup communication promotes shared
goals’.105 But the statements of Jordan and Malaysia are interesting in evidencing
the limits of persuasion and communication. Both these NHRIs raise legal impedi-
ments to considering rights on the basis of sexual orientation (Jordan’s charter
obligations and the limitations within Malaysia’s constitution). Existing positive law
plays a prominent role in shaping (in this case limiting) the tenor of responses to
participate in network norms. This suggests that there may be limits to claims that
as ‘countries apparently are affected much less strongly by internal factors and
much more strongly by shifts in the international logic of political citizenship’.106
The representatives of these NHRIs are also limited by bureaucratic politics. At
the workshop, there was much debate about how the Concluding Statement should
be framed – whether as official institutional positions or as the views of participants
(the latter approach being followed).107 Here, we gain an insight into one of the
ways in which a network may be able to create convergence on a particular issue.
Nine of the APF’s 14 full members participated in the APF’s workshop on the
Yogyakarta Principles. Of these nine, at least three were initially resistant to the
proposals of the workshop convenors. Yet from this workshop has emanated a
101 Ibid, p. 27.

102 Alvarez, op. cit. (note 73), p. 964.
103 Interview with Jack Byrne, Auckland, 6 July 2009; copy on file with author.
104 Ibid.
105 R. Keohane, ‘The Demand for International Regimes’, International Organisation 36, 1982, p. 325.
106 F. Ramirez, ‘The Changing Logic of Political Citizenship: Cross-National Acquisition of Women’s
Suffrage Rights, 1890 to 1990’, American Sociological Review 62, 1997, p. 725.
107 Interview with Jack Byrne Auckland 6 July 2009, copy on file with author.
Statement (made on behalf of participants, not their institutions) which included a
request that the Council refer the issue of human rights, gender identity and sexual
orientation to its ACJ. By the end of 2009, the 14 members of the APF Council
had agreed to comply with this request. The ACJ will now proceed to draft a
statement of international law, state obligations and NHRI responsibilities in this
area. NHRIs will report back to the Council at Annual Meetings on progress in
implementing the ACJ’s recommendations. Further practical incentives for NHRIs
to implement ACJ recommendations will be provided by provision of funding to
NHRIs who wish to develop programmes to implement recommendations of the
jurists. If particular NHRIs refuse to pursue this issue, they will have to publicly
account for this refusal, at the APF’s Annual Meetings, highlighting the divergence
between their values and those of their peers.
Goodman and Jinks write of ‘issue salience’ which occurs domestically when
illiberal states reject a particular human rights norm: ‘this increased salience
empowers human rights advocacy networks to shape the local political agenda by
alerting local actors to these issues and exposing inconsistencies in national
priorities’.108 The change instigated is of an evolutionary and accretive type, rather
than the dramatic change demanded by, for example, the rulings of a supra-
national human rights court. It is arguable that it is a type of change well suited to
a context where there is domestic ambivalence about the norm being promoted.
It provides an interstice between a norm and domestic realization where ideas can
be tested.
The decision to advance the issue of human rights in relation to sexual orienta-
tion and gender identity through a workshop was made by the APF Secretariat. As
we have seen, from the workshop there developed a reference to the ACJ, from
which will emanate concrete recommendations to NHRIs about implementation
of these rights. The Arab NGOs supported the statement issued by the ANNI at
the APF’s 14th Annual Meeting in Amman in August 2009, which called on the
APF to ‘publicize and mainstream the Yogyakarta Principles into the work of
NHRIs in Asia Pacific’ and urged ‘[f]orum Councillors to adopt the issues of sexual
orientation and gender identity as the next reference for the ACJ’s deliberation in
consultation with civil society organizations working for the rights of LGBT
people’.109
Conclusion
In the Asia Pacific region, which sprawl from the Palestinian Territories to Samoa,
the challenge of affirming a regional identity that could ground a pan-Asia Pacific
human rights institution appears insurmountable. This chapter has suggested
108 Goodman and Jinks, op. cit. (note 71), p. 628.

109 Statement of the ANNI at the 14th Annual Meeting of the Asia Pacific Forum in Amman in
August 2009, available at: <http://www.asiapacificforum.net/about/annual-meetings/14th-
jordan-2009> (accessed 15 September 2010).
that in the absence of institutions and in circumstances where securing agreement
on the terms of treaties is impossible, there is a role for networks in promoting
standards which contribute to the incremental evolution of norms. In addition,
there is a role for networks in ‘building bureaucratic capacity’,110 which enhances
a state’s ability to comply with treaties, with the effect that states are more inclined
to enter treaties and, when they do so, to fulfil their obligations more effectively.
The argument here is not that networks such as the APF can or should displace
formal regional human rights organizations: rather than ‘competitive architectures
of cooperation, the two [networks and liberal internationalism] are often
synergistic’.111
The actor central to both the APF and the ANNI networks – NHRIs – are at
the interface of domestic rights protection and international human rights norms.
Networks of these institutions (such as the APF) and networks dedicated to the
independence and effectiveness of these institutions (such as the ANNI) are capable
of producing a ‘multiplier effect in the transmission and diffusion of human rights
norms’.112 Both networks employ the publication of best practices, monitoring and
reporting techniques, diffusion of information and standards, and ideas of
membership and socialization to promote standards in relation to NHRIs and to
promote standards in relation to international human rights law.
The experience of the Asia Pacific region in this regard is being followed in
Europe (the Network of European NHRIs) the Americas (Network of National
Human Rights Institutions of the Americas) and Africa (Network of African
NHRIs). In no other region, however, has civil society organized itself into a
network such as the ANNI, dedicated to enhancing the effectiveness of human
rights institutions by leveraging international pressure and domestic opposition.
This perhaps reflects the fact that in the absence of a regional human rights
mechanism, the independence and effectiveness of domestic bodies is critical to
encouraging states to protect human rights.
110 K. Raustiala, ‘The Architecture of International Cooperation: Transgovernmental Networks and

the Future of International Law’, Vanderbilt Journal of International Law 43, 2002, p. 2.
111 Ibid, p. 6.
112 Ibid.
11 Human rights commissions
in times of trouble and
transition: the case of the
National Human Rights
Commission of Nepal
Andrea Durbach1
I support in principle the establishment of national human rights institutions,

I support the Paris Principles. But I also think that the enthusiasm about
national human rights institutions should be a little tempered with more con-
sideration of the environment in which these institutions are to be established.
Hina Jilani, former UN Special Representative
of the Secretary-General on Human Rights Defenders2
We cannot afford to have human rights projects which end up being a dis-
traction to the immediate protection crisis, if not an alibi for the continuation
of human rights violations.
William O’Neill, Evaluator of a UN funded review
of the Nepal’s National Human Rights Action Plan 20033
Introduction
Celebrating the 8th anniversary of the National Human Rights Commission of
Nepal (‘NHRC’) at a ceremony in May 2008, the representative from UN Office
of the High Commissioner for Human Rights (‘OHCHR’) in Nepal, Richard
Bennett, congratulated the ‘important steps’ taken by the Commission in ‘little
1 The research on which this chapter is based forms part of a Linkage project funded by the
Australian Research Council and the Asia Pacific Forum of National Human Rights Institutions
(LPO776639 ‘Building Human Rights in the Region through Horizontal Trans-National
Networks: The Role of the Asia Pacific Forum of National Human Rights Institutions’). The
author is grateful to Liz Snell for her valuable and extensive research assistance and Stephanie
De Lorenzo for her meticulous footnoting.
2 Interview with Hina Jilani, Sydney, 18 September 2009; copy on file with the author.
3 W. O’Neill, quoted in S. Tamang, ‘Remembering Doramba’, Nepali Times (Kathmandu), 20–26
August 2004, available at: <http://www.nepalitimes.com/issue/2004/08/20/GuestColumn/
1618> (accessed 1 April 2010).
more than 12 months’ which had ‘placed [it] on a solid footing’.4 These steps, said
Bennett, included constitutional recognition of the NHRC in the 2007 Interim
Constitution of Nepal; the development of a draft law specifying the NHRC’s
functions and powers; the appointment of and commencement of work by new
Commissioners; the drafting of a new three-year strategic plan; and the regaining
by the NHRC of ‘A’ status by the International Co-ordinating Committee of
National Institutions for the Promotion and Protection of Human Rights (‘ICC’).
The regaining by the NHRC of ‘A’ status accorded by the ICC – which indicates
full compliance with the Paris Principles relating to the Status of National
Institutions5 – was not an entirely accurate claim. From the time the Commission
sought accreditation from the ICC in 2001 (a year after its establishment), the
ranking of ‘A’ status was accorded to and has been retained by the NHRC,
although subject to intermittent reviews by the ICC. The NHRC has held on to
its ‘A’ status ranking despite functioning at varying degrees of efficacy. It has
operated under extraordinarily difficult and challenging periods of instability, with
both internal and external factors diverting and diminishing its capacity and the
execution of its mandate, factors which have triggered the various ICC reviews,
but not demotion, of the Commission’s status.6
The progress attributed to the NHRC by the OHCHR had occurred against a
backdrop of a protracted civil war and enduring political conflict. Despite the
positive assessment by the UN OHCHR representative, a few months after the 8th
anniversary celebrations, the Chairperson of the NHRC, Kedernath Upadhyaya,
noted that the government had failed to implement ‘a single recommendation of
the Commission . . . giving justice to the victimized party and initiating action
against the guilty’.7 Chairperson Upadhyaya added that the culture of impunity
cultivated by the government had reduced human rights to a ‘disturbing level’.8
4 R. Bennet, ‘Nepal’s Human Rights Commission Has Made Great Strides, Says UN Official’, The
All I Need, 26 May 2008, available at: <www.TheallIneed.com/news-wor/08052792.htm>
5 Principles relating to the Status of National Institutions for the Promotion and Protection of
Human Rights, GA Res. 48/134 (1993).
6 A year after its establishment in 2000 pursuant to the Human Rights Commission Act 1997, the
NHRC applied to the ICC for the highest ranking ‘A’ status (which denotes full compliance with
the Paris Principles and permits direct participation in meetings of the UN Human Rights
Council). As no annual report or budget information was submitted with the NHRC’s
accreditation application, the NHRC was granted A(R) status by the Sub-Committee on
Accreditation, the reservation being withdrawn in 2002 with the submission of the relevant
documents and ‘A’ status accorded to the NHRC. Given concerns about the absence of a
governing body and the delay in the appointment of Commissioners, the ICC placed the NHRC’s
‘A’ status under review in April 2006 and after considering requested documentation, the Sub-
Committee recommended the NHRC’s ‘A’ status be reinstated in October 2007, subject to the
Sub-Committee’s further review of identified concerns in October 2008.
7 K. Upadhyaya, ‘NHRC Report Made Public’, The Rising Nepal (Lalitpur, Nepal), 18 October 2008,
available at: <http://www.gorkhapatra.org.np/detail.gopa.php?article_id=8509&cat_id=8>
8 Human Rights Watch, ‘Still Waiting for Justice: No End to Impunity in Nepal’, 2009, available
at: <http://www.hrw.org/en/node/86019/section/5#_ftn31> (accessed 1 April 2010).
Human rights commissions in times of trouble and transition 211
He warned that perpetrators of human rights violations should not escape
accountability by holding that the crime occurred in a ‘conflict period in the
past’,9 particularly given the fragility of the peace process in the newest democracy
of the region due to continuing tensions between the Maoists and the Nepalese
Army.10
In addition to the failure by the Nepalese government to implement
Commission recommendations, a consistent concern underlying the ICC reviews
has been the failure by the Nepalese government to provide the NHRC with
adequate funding. The ICC has noted that this lack of funding and financial
autonomy, as required by the Paris Principles, has continued to impede the work
of the NHRC.
Since the establishment of the UN Commission on Human Rights in 1946,
national human rights institutions (‘NHRIs’) have been perceived as desirable and
effective mechanisms for the implementation of international human rights stan-
dards and procedures at the national level. During the last decade, the establish-
ment of national human rights commissions in countries under conflict has assumed
a role beyond the usual functions of complaint handling, monitoring of human
rights violations and human rights education. As countries emerge from protracted
civil wars and regional conflicts, NHRIs are increasingly becoming significant
players in the implementation and monitoring of peace agreements and post-
conflict transitional arrangements.11 The creation of NHRIs is often a pre-condition
to the execution of such agreements (Northern Ireland and Afghanistan), or a
mandated institution under an interim UN transitional administration (Timor-
Leste). The Nepal Human Rights Commission was already in existence when the
Comprehensive Peace Accord was signed in 2006 by the Government of Nepal
and the Communist Party Nepal (Maoist). Under the Accord, the Commission took
on an expanded mandate requiring it to monitor adherence by the parties to the
Agreement’s extensive provisions.
This chapter considers the emergence and continued existence of a national
human rights commission during periods of severe political instability and sustained
human rights violations. It explores the capacity of the NHRC to effectively
contribute to the implementation of a peace process in a politically volatile and
often rights-hostile environment. The chapter argues that while the NHRC has
maintained its internationally ranked ‘A’ status before the ICC (a status which
the government could arguably invoke to bolster its own image and existence), the
consistent failure of the Nepalese government to implement crucial NHRC
9 Ibid.
10 Written statement from the Asian Legal Resource Centre to the Human Rights Council (Eleventh
Session), see Australian Legal Resource Centre, ‘NEPAL: The Peace Process and Republic at
Risk without Justice Institutions’, 2 June 2009, available at: <http://www.alrc.net/doc/main
file.php/alrc_st2009/559/> (accessed 1 April 2010).
11 B. Burdekin, National Human Rights Institutions in the Asia-Pacific Region, Leiden/Boston: Martinus
Nijhoff Publishers, 2007, pp. 108–11.
recommendations12 and to provide it with sufficient resources and appropriate
infrastructure, have undermined the NHRC’s legitimacy and efficacy. The chapter
concludes with some observations about the viability of a national human rights
commission participating in a peace-building initiative given the clear tension
between its regulative function13 (which urges the implementation of justice via
human rights compliance) and its attempts to facilitate peace in countries where
the state is indifferent or resistant to human rights objectives.
A short history of a protracted conflict

In 1990, following decades of rule by an absolute monarchy, the ruling King

Birendra succumbed to protests and pressure from the Nepalese pro-democracy
movement. The new constitution of 1990 guaranteed a constitutional monarchy,
with a multi-party political framework and prime ministerial system of governance,
an independent judiciary and periodic elections.14 The following year, Nepal held
its first parliamentary elections in 50 years and the Nepali Congress Party formed
the first elected government in three decades.15 Over the next few years, various
prime ministers faced motions of no-confidence, and increased political
dissatisfaction and volatility saw the emergence in 1996 of a Maoist faction of the
Communist Party of Nepal that sought to replace a feudal monarchy with the
‘nationalization of the state’s resources and the redistribution of wealth and land’.16
Land inequality and wide-ranging poverty,17 the iniquities of the caste system,
discrimination against indigenous communities and ‘the domination of Nepali
polity by a narrow upper class’,18 combined to mobilize popular support for the
Maoist insurgents, particularly in the rural areas. The root causes of the conflict
were:
12 ‘[T]he government’s inaction in implementing the NHRC’s recommendations on complaints

relating to extra-judicial killings, disappearances and torture is serious.’ See Asian Human Rights
Commission, ‘The State of Human Rights in Nepal – 2008’, 2008, pp. 15–16, available at:
<http://material.ahrchk.net/hrreport/2008/AHRC-SPR-013-2008-Nepal_AHRR2008.pdf>
13 S. Cardenas, ‘Emerging Global Actors: the United Nations and National Human Rights
Institutions’, Global Governance 9, 2003, p. 23.
14 The Constitution of the Kingdom of Nepal, available at: <http://www.supremecourt.gov.np/
main.php?d=lawmaterial&f=constitution_preamble> (accessed 22 June 2010).
15 B. Adhikari, Building Capacity of National Human Rights Institutions: The Case of Nepal, Nepal: Rights
to Education Foundation, 2004, pp. 13–14.
16 D. Aguirre and I. Pietropaoli, ‘Gender Equality, Development and Transitional Justice – the Case
of Nepal’, The International Journal of Transitional Justice 2, 2008, p. 356 at p. 359.
17 Chr. Michelsen Institute (CMI), ‘Social Exclusion, Democratic Inclusion and the Insurgency in
Nepal’, CMI Research Projects, 2008, available at: <http://www.cmi.no/research/project/
?785=social-exclusion> (accessed 1 April 2010). See also A. Suhrke, ‘UN Support for
Peacebuilding: Nepal as the Exceptional Case’, Chr. Michelsen Institute Working Paper No. 7,
2009, available at: <http://www.cmi.no/publications/file/3468-un-support-for-peacebuilding.
pdf> (accessed 1 April 2010).
18 Ibid.
a complex web of interacting factors which include uneven development within
the country; endemic corruption; ethnic and caste inequalities; intense politi-
cization; human rights abuse; social exclusion and deprivation, and inadequate
infrastructure development.19
The insurgency escalated in 2001 when the Royal Nepalese Army (‘RNA’) was
sent in by King Gyanendra (who had assumed the role after the death of his
brother, Birendra in June 2001) and the civilian government to crush and control
Maoist insurgents.20 After the failure of peace talks, the imposition of a state of
emergency, and arrest and detention of thousands of civilians, parliament was
dissolved in May 2002.21

In October 2002, the King removed the Prime Minister and assumed executive
control, a week later appointing a new Prime Minister who was charged with
convening local and parliamentary elections and facilitating the cessation of
hostilities.22 After appointing a series of different (and former) Prime Ministers,
in February 2005, King Gyanendra declared a state of emergency,23 and with the
support of the RNA, assumed executive authority and ordered the detention of
thousands of political activists, journalists and human rights activists. In September
2005, the Maoists’ declared a four-month ceasefire that was rejected by the King.
A month later, the Maoists began discussions with the seven main parties which
opposed the King’s rule, adopting a 12-point ‘Letter of Understanding’, which
included a call for the election of the constituent assembly and committed the
Maoists to multi-party democracy, respect for human rights and the rule of law.24
In November 2006, the ‘People’s War’ ended with the signing by the Royal
Government of Nepal and the Unified Communist Party of Nepal (Maoist)
(‘CPN-M’) of the Comprehensive Peace Accord (‘CPA’), with the Maoist rebels
19 N. Khatri, ‘Remarks by Rt. Hon. Nayan Bahadur Khatri at a Roundtable Meeting on Human
Rights and Conflict in Nepal’, speech delivered at the National Human Rights Commission,
Nepal, 28 January 2003, available at: <http://www.nhrcnepal.org///publication/doc/speeches/
chairspeech%20jan18.pdf> (accessed 1 April 2010).
20 K. Poudyal, ‘The Role of National Human Rights Institutions in Armed Conflict Situations: with
Special Reference to NHRC-Nepal’, Danish Institute of Human Rights, 2006, p. 28, available
at: <http://www.humanrights.dk/files/Importerede%20filer/hr/pdf/kedar_prasad_poudyal_-
_role_of_nhris_in_armed_conflict.pdf.pdf> (accessed 17 June 2010).
21 Ibid.
22 G. Chintan, ‘Nepal: Under Big Neighbour’s Shadow’, South Asian Journal 1, August–September
2003, available at: <http://www.southasianmedia.net/Magazine/Journal/nepal_neighbour
shadow.htm> (accessed 17 June 2010).
23 Amnesty International, ‘Nepal: A Long Ignored Human Rights Crisis Now on the Brink of
Catastrophe’, 10 February 2005, available at: <http://www.amnesty.org/en/library/asset/
ASA31/022/2005/en/e8962f94-d51c-11dd-8a23-d58a49c0d652/asa310222005en.html>
24 Asian Centre for Human Rights, ‘Nepal: One Year of Royal Anarchy’, 30 January 2006, available
at: <http://www.achrweb.org/reports/Nepal/Nepal0106.pdf> (accessed 17 June 2010). See also
‘12-point Understanding between Parties and Maoists’, Telegraphnepal.com, 22 November 2005,
available at: <http://telegraphnepal.com/news_det.php?news_id=774> (accessed 17 June 2010).
joining an interim government.25 The terms of the Accord were to be monitored
by the UN Mission in Nepal and the UN OHCHR and the NHRC were assigned
the role of monitoring and reporting on the human rights situation throughout the
country. The Maoist demands to abolish the monarchy were finally agreed to by
the Parliament in 2007, and in the 2008 Constituent Assembly elections, the CPN-
M won the largest number of seats, although failing to achieve a majority.26 The
primary tasks of the Constituent Assembly were to resolve outstanding barriers to
the resolution of the peace process and to draft a new constitution by the end of
May 2010. The difficulty of accommodating demands of the various political
factions created an impasse that delayed the drafting of the constitution and
triggered calls for, and agreement from, the Prime Minister to resign.27 On 28 May
2010, the legislative term of the Constituent Assembly was extended to facilitate
the drafting of a permanent constitution.28
Throughout the ten-year civil war, which witnessed unsuccessful ceasefire
attempts in 2001, 2003, 2005 and 2006, it is estimated that close to 13,000 people
were killed,29 with both the government security forces and the Maoist rebels
implicated in extra-judicial killings, abductions, torture, rape and disappearances,
the destruction of development infrastructure, and the displacement of tens of
thousands of civilians in contested areas. The victims of the war have primarily
been indigenous, Dalit and poor rural communities, many of whom have been
caught between political loyalties and the imperatives of survival: a refusal of shelter
to rebels could incur brutal punishment and providing support to the Maoists might
risk ‘reprisal attacks from state security forces’.30 The extent of human rights abuses
has been exacerbated by the acute poverty, extensive malnutrition and low literacy
rates evident across the Nepali population, most of whom live in rural, mountainous
areas where development is difficult and access to health services, education and
clean water sporadic.31
Disputes about the implementation of key provisions of the CPA, particularly
the integration and rehabilitation of approximately 20,000 Maoist fighters and
25 T. Pokharel and S. Sengupta, ‘Maoists Sign Peace Deal in Nepal’, New York Times, 22 November
2006, available at: <http://www.nytimes.com/2006/11/22/world/asia/22nepal.html (accessed
17 June 2010). See also note 82 below.
26 Asian Human Rights Commission, op. cit. (note 12), pp. 3–5.
27 ‘PM Will Resign: Pokharel’, Kathmandu Post (Kathmandu), 17 June 2010, available at:
<http://www.ekantipur.com/the-kathmandu-post/2010/06/17/nation/pm-will-resign-
pokharel/209501/> (accessed 21 June 2010).
28 ‘Nepal Avoids Crisis in Deal to Extend Parliament’, New York Times, 28 May 2010, available at:
<http://www.nytimes.com/2010/05/29/world/asia/29nepal.html> (accessed 21 June 2010).
29 International Crisis Group, ‘Nepal: Peace and Justice’, 14 January 2010, p. 1, available at:
<http://www.crisisgroup.org/~/media/Files/asia/south-asia/nepal/184%20nepal%20peace
%20and%20justice.ashx accessed> (17 June 2010).
30 Human Rights Watch, ‘Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal’s
Civil War’, 6 October 2004, p. 3, available at: <http://www.hrw.org/en/reports/2004/10/06/
between-rock-and-hard-place-0> (accessed 1 April 2010).
31 Ibid, pp. 4–5.
effective civilian control of the Nepal Army,32 have continued to erode the peace
process. These disputes, coupled with a wavering trust and cooperation between
the main political actors, continuing incidents of serious and extensive human rights
abuses, and an absence of effective state institutions to secure accountability and
provide reparations stymied, and in some cases suspended, adherence to commit-
ments under the Peace Accord33 and outcomes anticipated pursuant to the May
2010 deadline.
Coming through slaughter: the emergence of a human

rights commission amidst a civil war
With the adoption of a new democratic constitution in 1990, several international

human rights treaties were ratified by the government but no corresponding
adaptations were made to national legislation.34 Mounting pressure from civil
society and human rights organizations – recognizing the government’s lack of
intent and the judiciary’s inability to provide comprehensive human rights
protection in the midst of increasing rights violations – eventually led to the
enactment of the Human Rights Commission Act 1997, which created the National
Human Rights Commission of Nepal.35 The impetus for the NHRC came from
two events: the convening of a workshop in early 1993 by the Forum for the
Protection of Human Rights (at which the establishment of an all-party national
institution was raised)36 and the attendance by members of Nepalese NGOs at the
1993 UN World Conference on Human Rights which endorsed the crucial role of
national institutions in promoting democracy and remedying human rights
abuses.37 Following extensive lobbying of parliamentarians and an initial defeat of
a bill to establish a commission, the Human Rights Commission Act 1997 was
passed.38 The Commission was established in fact three years later in 2000 after
legal proceedings initiated by civil society forced government compliance with the
enabling legislation.39 At its inception, the NHRC faced the dual challenge of
32 Australian Legal Resource Centre, op. cit. (note 10).

33 Human Rights Watch, op. cit. (note 8).
34 A. Kabir, ‘Establishing National Human Rights Commissions in South Asia: A Critical Analysis
of the Processes and the Prospects’, Asia Pacific Journal on Human Rights and the Law 2, 2001, p. 1 at
p. 31.
35 Human Rights Commission Act 1997 (Kingdom of Nepal), available at: <http://asiapacific
forum.net/members/apf-member-categories/full-members/nepal/downloads/enabling-
legislation/nepalact.pdf> (accessed 1 April 2010).
36 Human Rights Commission Act 1997, ss 31–4.
37 Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (1993).
38 Interview with S. Pyakurel, NHRC Commissioner 2000–05, 23 October 2008; copy on file with
the author.
39 Kabir, op. cit. (note 34), pp. 33–4. In July 1999, following the Supreme Court of Nepal’s directive
to the Government ‘to do everything necessary for the early establishment of the Human Rights
Commission’, the government convened a task force to draft guidelines for the operation of a
Commission.
protecting civilians from human rights abuses and the restoration of peace. Chapter
3 of the Act specified the key functions of the Commission in effecting its primary
responsibility of human rights protection and promotion. These included con-
ducting inquiries and investigations into human rights violations; inspecting any
government authority, jail or prison and recommending reform of their functions,
procedures and physical facilities; studying international human rights treaties and
instruments and making appropriate recommendations to government for their
implementation.40
The first five members of the Commission set about its establishment against
considerable odds. In the foreword to the NHRC’s first Annual Report, Chair-
person Nayan Bahadur Khatri noted that the Commission had to ‘face many legal,
financial and physical challenges and bottlenecks’.41 The government’s initial failure
to respond to the draft rules and regulations to establish the Commission delayed
commencement of NHRC operations by 9 months. The budget allocated by the
government to the NHRC was ‘extremely small’42 and insufficient to operate the
institution, pay salaries, and cover the costs of necessary facilities.43 Given the
extensive workload of the Commission, its initial staff of 27, including the
Chairperson and four Commissioners, was seen as inadequate. The NHRC
proposed a minimum of 46 personnel to service the investigative, monitoring,
educative and administrative mandate of the Commission across various, often
remote and inaccessible, regions and districts.44 In addition, financial resources
were required to train Commission staff to effectively undertake human rights
investigations and to develop educational tools. Importantly, the absence of an
environment of ‘understanding, coordination and institutional cooperation between
the Commission and His Majesty’s Government’,45 posed a significant challenge
to the Commission’s substantive work and impact. The NHRC noted that effective
implementation of human rights required ‘sensitizing’ government and its agencies
to the content and significance of rights.46
The second year of the NHRC’s operation (2001–02) saw the re-emergence of
the conflict between the government and the Maoists resulting in a declaration of
emergency47 and the mobilization of security forces across the country. As a result,
the Commission was under increased pressure from civil society, human rights and
international organizations to undertake extensive investigations into and monitor
the escalation in human rights violations. Accordingly, it requested the government
40 Human Rights Commission Act 1997, s. 9.

41 N. Khatri, ‘Foreword to National Human Rights Commission Nepal Annual Report 2000–2001’,
available at: <http://www.nhrcnepal.org///publication/doc/reports/NHRC-Annual%20
Report%202001%20-%20en.pdf> (accessed 1 April 2010).
42 Ibid, para. q).
43 Ibid, para. o).
44 Ibid, paras b), o), q).
45 Ibid, para. p).
46 Ibid.
47 Poudyal, op. cit. (note 20).
to allocate additional funds to execute ‘even its basic administrative functions’,48
but to no avail. The NHRC’s Annual Report for this critical period highlights the
impotence of the Commission – reduced to ‘a silent spectator’ – due to its limited
number of employees and insufficient budget.49
A similar assessment is repeated in the 2003 Annual Report, which states that
despite Commission-initiated inquiries and investigations into complaints of human
rights violations, its role ‘remained insignificant’ due to resource constraints and
limited facilities.50 Perhaps more importantly, the Report refers to a persistent con-
cern that the government had no ‘clear-cut’ conception of the role and jurisdiction
of the Commission and that government agencies, specifically the army, when
questioned by the NHRC about alleged human rights abuses, tended to ‘shift
responsibility to other agencies’ or argue that such violations are necessary for
opposing Maoist insurgents and ‘may occur naturally while initiating action for
stopping violence’.51
Despite the barriers which delayed and obstructed the NHRC’s operations
during its first five years of existence – both internal to the institution and the
ongoing external political instability and violence – the Commission has generated
important human rights initiatives and projects. Since 2002 the NHRC Capacity
Development Project, led by the UNDP with funds from the OHCHR, inter-
national donor, and aid agencies and assistance from the Danish Institute for
Human Rights, UNICEF, the European Commission and the Ford Foundation,52
has sought to enhance the capacity of the NHRC in relation to the promotion (via
education and research) and protection (via complaint and investigation mechan-
isms) of human rights and their effective implementation (via monitoring and
advisory functions). The initial operational development focus of the project was
revised after three years53 and funding was extended to develop capacity and
expertise specifically on human rights approaches to conflict management and
peace building.54 With the increase in trafficking of Nepalese women and children
(and throughout the region) – 26 of Nepal’s 75 districts have been designated
48 National Human Rights Commission Nepal Annual Report July/August 2001–June/July2002, p. 53,
available at: <http://www.nhrcnepal.org///publication/doc/reports/Annual%20Report%
202002.pdf> (accessed 1 April 2010).
49 Ibid.
50 National Human Rights Commission Nepal Annual Report July 17, 2002 to July 16, 2003, un-numbered
page headed Abstract – Inquiry and Investigation, available at: <http://www.nhrcnepal.org///
publication/doc/reports/Annual%20Report%20Summary%202003.pdf> (accessed 1 April 2010).
51 Ibid, p. 26.
52 Ibid, p. 17.
53 In September 2005, the project partners and the NHRC agreed to a review of the project. For
the final report of the review, see J. Dwyer, G. Moran and S. Kharel, Review of the Capacity
Development of National Human Rights Commission Nepal, 16 February 2006, available at:
<http://www.undg.org/docs/7098/Final%20Report%20with%20Annexes.pdf> (accessed
1 April 2010).
54 Adhikari, op. cit. (note 15).
‘trafficking prone’ by the government55 – the National Rapporteur’s Office on
Trafficking of Women and Children was established within the NHRC56 to address
gender inequality, the exploitation of and discrimination against women and to
specifically examine the causes of trafficking. In collaboration with similar initiatives
in the region,57 the National Rapporteur seeks to develop ‘best practice’ models
for trafficking detection, reduction and prevention. The internal displacement of
civilians as a consequence of the conflict in Nepal formed the basis of a significant
research project undertaken by the NHRC that assessed the experience of
internally displaced persons (‘IDPs’) and prospects for their reintegration and
resettlement.58 The Commission’s prison inspections project has resulted in
numerous recommendations to government on the security, cleanliness, physical

structure, health facilities, and legal remedies available to prisoners,59 and its ‘on-
the-spot’ investigations have exposed serious human rights violations, such as
killings, abductions, disappearances60 and property seizure.
The Commission’s ‘on-the-spot’ inspection report into the murder of 18 Maoist
activists and two civilians in the village of Doramba, in the Ramechhapin district,
revealed that those killed were arrested by members of the Nepalese army at
a political/cultural meeting, marched ‘up and down’ for nearly three hours with
their hands tied behind their backs, lined up on a track and shot at close range in
an execution-style killing, ‘aiming mostly at their heads’. The Commission’s
Investigation Committee reports that:
[A]fter removing the bags, watches and other goods from the dead bodies,
they were pushed down the steep slope, one after another, whereby most of
the dead bodies lay in heaps. . . . It was believed that the team of the joint
security forces, which was under the leadership of the army, had been probably
led by a Major as well as one or more Captains.61
55 M. Logan, ‘Nepal: Peace Won’t Stop Human Trafficking – Official’, IPS, 14 September 2006,
available at: <http://www.ipsnews.net/news.asp?idnews=34720> (accessed 30 June 2010).
56 Khatri, op. cit. (note 41).
57 Such as the Trafficking Focal Point Network established in 2005 by the Asia Pacific Forum of
National Human Rights Institutions (APF), and the APF/Brookings Institution – University of
Bern Project on Internal Displacement.
58 Y.P. Adhikari and U. Joshi, ‘Rapid Assessment of Conflict Induced Internally Displaced Persons
(IDPs) for their Return, Resettlement and Reintegration’, National Human Rights Commission –
Nepal (‘NHRC-Nepal’), Research Report, December 2008, available at: <http://www.nhrcnepal.
org/publication/doc/reports/IDPs%20Research%20English.pdf> (accessed 30 September 2010).
59 Khatri, op. cit. (note 41).
60 In June 2007, the Supreme Court of Nepal handed down a decision of ‘significant proportion’
directing the government to compensate 83 families of individuals subjected to state-enforced
disappearance, enact legislation to criminalize disappearances and establish a commission to
investigate and prosecute perpetrators. The decision makes reference to an investigation report
by the NHRC which was relied on in the formulation of the Court’s findings. See K. Uprety,
‘Against Enforced Disappearance: the Political Detainee’s Case before the Nepal Supreme Court’,
Chinese Journal of International Law 7, 2008, 429.
61 NHRC-Nepal (Investigation Committee), ‘Doramba Incident, Ramechhap: On-the-spot
Inspection and Report of the Investigation Committee’, 2003, pp. 12–13, available at:
The Investigation Committee concluded that ‘even in the national context’, the
Doramba killings were in breach of the Constitution of the Kingdom of Nepal, the
Army Act, the Police Act, and the Armed Police Act.62 The Commission’s findings
and recommendations were presented to the Nepalese government – article 10 of
the Human Rights Commission Act excludes the NHRC from instituting pro-
ceedings relating to incidents within military jurisdiction – and were subsequently
rejected by the Royal Nepal Army. After pressure was exerted on the government
from international and national human rights organizations and donor govern-
ments, the Royal Nepal Army conducted an internal inquiry into the killings and
suspended the lead officer.63 The report recommended a substantial list of
minimum steps that the government and CPN-M implement to develop a culture
of respect for human rights principles and international humanitarian law. These
included practical measures for immediate implementation to protect civilians from
execution, the cessation of disappearances, procedures for arrest and detention,
the designation of educational institutes as ‘peace zones’, the increased repre-
sentation of women in the prevention, management and resolution of conflict and
human rights training and requisite qualifications for security and law enforcement
personnel. 64
Although Nepal ratified the 1949 Geneva Conventions in 1964,65 it has not
acceded to their Additional Protocols.66 Given the severity of the armed conflict in
Nepal and its enduring impact on civilian lives, attempts have been made to
encourage Nepal to adhere to and implement the provisions of international
humanitarian law via domestic legislation.67 The Commission’s Doramba Report
<http://www.nhrcnepal.org///publication/doc/reports/Reprot_Doramba_R.pdf> (accessed
1 April 2010).
62 Ibid, p. 13.
63 T. Bose, ‘Nepal: Context of Maoist Insurgency’, South Asian Journal 5, 2004, available at:
<http://www.southasianmedia.net/Magazine/Journal/nepal_maoistinsurgency.htm> (accessed
1 April 2010).
64 National Human Rights Commission Nepal Annual Report 2004, pp. 85–103, available at: <http://
www.nhrcnepal.org///publication/doc/reports/Annual_Report_English_2004.pdf> (accessed
30 September 2010).
65 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea of August 12, 1949, 75 UNTS 85 (entered into force 21 October 1950);
Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS
135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of August 12, 1949, 75 UNTS 287 (entered into force 21 October 1950).
66 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of International Armed Conflicts, 1125 UNTS 3 (entered into force 7 December 1978);
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609 (entered into
force 7 December 1978).
67 In August 2009, to commemorate the 60th anniversary of the Geneva Conventions, the
International Committee of the Red Cross (‘ICRC’) produced a Nepali translation of the four
Geneva Conventions of 12 August 1949 and their three Additional Protocols to offer support ‘to
specifically recommended a set of minimum steps aimed at CPN-M compliance
with common article 3 of the Geneva Conventions. The report also recommended
the establishment of a high level human rights committee to implement the
Commission’s recommendations, which remain largely unimplemented by the
Nepalese government or its relevant agencies. The NHRC also criticized govern-
ment security agencies for consistently failing to provide information relevant to
NHRC investigations and complaints and to permit Commission staff access to
police stations, detention centres and army barracks.68
In a visit to Nepal in late January 2005, the then UN High Commissioner for
Human Rights, Louise Arbour, deplored the acts of execution, abduction, dis-
appearances and extortion committed by the state and its agents, the lack of
redress for victims and the prevailing climate of impunity and resultant erosion
of the rule of law. She highlighted the role of the NHRC as critical to improving
the human rights situation in Nepal, urging the government and the CPN-M
to sign and implement the Human Rights Accord drafted by the NHRC69 and to
refrain from obstructing NHRC investigations by allowing it access to sites of
inquiry. With the impending expiration of the term of the existing NHRC
Commissioners (in May of that year), the High Commissioner further sought an
assurance from the government that the integrity and independence of the NHRC
would be maintained despite the ongoing political instability.70 A few days after
her visit, King Gyanendra dismissed the government and assumed direct executive
powers and a few months later he replaced the Commission’s first five commis-
sioners with appointees of his own,71 potentially impeding the Commission’s work
and casting doubt on its credibility. With the restoration of Parliament in 2006,
the King’s appointees were forced to resign from the NHRC under threat
of impeachment and the Commission continued to operate in the absence of a
President and Commissioners for 17 months.72 Following the implementation of
the efforts of the Nepalese government to fulfil its obligations under international humanitarian
law’: <http://www.icrc.org/web/eng/siteeng0.nsf/html/nepal-news-120809> (accessed 22 June
2010). See also ICRC Annual Report, available at: <http://www.themissing.icrc.org/web/eng/
siteeng0.nsf/html/nepal> (accessed 22 June 2010).
68 National Human Rights Commission Nepal Annual Report 2004, op. cit. (note 64), pp. 80–1.
69 Comprehensive Peace Agreement (Preamble), signed at Kathmandu, 21 November 2006, by
Prime Minister Girija Prasad Koirala and Maoist chairman Prachanda, available at:
<http://www.satp.org/satporgtp/countries/nepal/document/papers/peaceagreement.htm>
70 L. Arbour, High Commissioner for Human Rights, ‘Press Statement on the Occasion of the Visit
to Kathmandu’, 23–26 January 2005, available at: <http://www.un.org.np/demo/uploads/
pressreleases/20050607002440.pdf> (accessed 22 June 2010).
71 J. Poudyal, ‘OHCHR’s Challenge in Nepal’, ACHR Weekly Review, 6 November 2008, p. 1,
available at <http://www.achrweb.org/Review/2008/222-08.html> accessed 4 April 2010. See
also T. Shrestha, ‘National Human Rights Commission, Nepal: From Accountability Perspective’,
Informal (INSEC) 28(3), July–September 2009, p. 12, available at: <http://www.insec.org.
np/pics/1260950865.pdf> (accessed 15 September 2010).
72 NHRC-Nepal, ‘Background Report of the Capacity Development of the National Human Rights
Commission NEP/00/010’, undated, available at: <http://www.nhrcnepal.org/project1.php?
ProjNo=1> (accessed 17 June 2010).
the Comprehensive Peace Accord (‘CPA’) in 2006 and the 2007 Nepal Interim
Constitution, the NHRC was ‘upgraded’ from a creature of statute to a con-
stitutional body. Five new Commissioners were appointed by the Prime Minister
and the NHRC was given the expanded role of monitoring adherence by the
Nepalese government and the CPN-M to the CPA human rights provisions.
In October 2009, the government developed draft legislation which sought to
integrate provisions of the Human Rights Commission Act and the new con-
stitutional provisions, ostensibly to reflect the Commission’s new status and ensure
its independent operation. NHRC officials criticized the draft legislation as failing
to ‘incorporate most of the provisions included in the originally agreed-upon draft
prepared after rigorous discussion and consultation with the government and other
stakeholders’.73 Reference to the NHRC as an ‘independent and autonomous’
body included in the preamble of the 1997 legislation,74 which established the
Commission, was absent from the draft bill, words which the Minister for Law and
Justice Prem Bahadur Singh advised the media were simply ‘redundant’.75 The
lack of progress on the drafting of the proposed NHRC enabling legislation was
considered at the November 2009 review meeting of the ICC. Although the Sub-
Committee on Accreditation (‘SCA’) recommended that the NHRC retain its ‘A
status’, it requested the Commission’s return in March 2010 for a review of the
draft legislation, suggesting that the NHRC work with government to develop
legislation ‘fully compliant with the Paris Principles’.76 In addition, the SCA
reiterated observations made in earlier NHRC reviews, including the need to
ensure adequate funding and the financial autonomy of the Commission, and
encouraged its increased engagement with NGOs and the UN human rights treaty
bodies, the Human Rights Council and the ICC.77 Following the March 2010
review, the SCA recommended to the ICC that the NHRC be down-graded to ‘B’
status accreditation. The SCA decision was based on concerns that the draft bill
to amend the NHRC’s founding legislation – particularly the restricted selection
process envisaged for new Commissioners, the draft legislation’s narrow definition
of ‘human rights’, and the absence of guaranteed adequate funding – will weaken
the independence and autonomy of the Commission. The report of the SCA also
73 ‘Toothless Draft Raises NHRC Hackles’, The Kathmandu Post (Kathmandu), 11 October 2008. See
also A. Luitel, ‘Is Draft Bill Trying to Weaken NHRC?’, The Himalayan Times Online, 21 October
2009, available at: <http://www.thehimalayantimes.com/fullTodays.php?headline=Is+draft++
bill+trying++to+weaken+NHRC%3F++&NewsID=40703> (accessed 1 April 2010).
74 Asian Human Rights Commission, op. cit. (note 12), pp. 3–5.
75 Asian Centre for Human Rights, ‘The Withdrawal of OHCHR-NEPAL: Agreeing an Alibi for
Violation?’, Briefing Paper on Nepal, Issue No. 5, 4 March 2010, available at: <http://www.achrweb.
org/briefingpapers/Nepal-BP-01-10.html> (accessed 15 September 2010).
76 International Coordinating Committee of National Institutions for the Promotion and Protection
of Human Rights, ‘Report and Recommendations of the Session of the Sub-Committee on
Accreditation (SCA)’, Geneva, 16–18 November 2009, available at: <http://nhri.nic.in/2009/
SCA%20REPORT_NOV%2009%20_FINAL_%20ENGLISH.pdfreports/SCA_Report_
November_2009.pdf> (accessed 15 September 2010).
77 Ibid.
highlights internal difficulties which are clearly impeding the work of the NHRC,
such as a low percentage of filled positions, most of which are temporary contract
staff and the ongoing and acute divisions between the five Commissioners, some
of whom are openly critical of the NHRC. During the 12 months afforded to the
NHRC to address the SCA concerns, the Commission will retain its ‘A’ status
accreditation.78
The promise of peace: the role of the NHRC under the

Comprehensive Peace Accord, 2006
Human rights are most threatened during times of conflict and are at the core
of transition to a peaceful society, yet this is also the time when the inter-
ventions of NHRIs can be least welcome.79
In a sense, the NHRC’s peace-building work began six months prior to the signing
of the CPA. In May 2006, the NHRC drafted a Human Rights Accord.80 The
Government of Nepal envisaged the NHRC monitoring the implementation of,
and compliance with, the Accord and investigating human rights violations. The
draft Accord also committed the parties to take steps to ensure the protection and
promotion of specified human rights, such as the right to life, dignity, liberty and
security and freedom of expression. On 21 November 2006, the Prime Minister of
the Government of Nepal, Girija Prasad Koirala and the Chairman of the CPN-
M, Prachanda signed the CPA and declared the end of a ten-year armed conflict.
The CPA committed the parties to the 1948 Universal Declaration of Human
Rights,81 international humanitarian laws and human rights principles and values,
and to the transformation of the ceasefire into a permanent peace.82 Under the
CPA, the parties agreed to a substantial and ambitious programme including: the
formulation of policies for the cessation and management of the conflict, including
the integration and rehabilitation of the Maoist combatants and the storage of arms
by both parties; the political, social and economic transformation of the country;
78 International Coordinating Committee of National Institutions for the Promotion and Protection
of Human Rights, ‘Report and Recommendations of the Session of the Sub-Committee on
Accreditation (SCA)’, Geneva, 29 March–1 April 2010, available at: <http://www.asiapacific
forum.net/news/international-accreditation-body-releases-report-on-nhris.html> (accessed 30
June 2010).
79 Round Table Proceedings Report, ‘International Round Table on the Role of National
Institutions in Conflict and Post-Conflict Situations’, organized by the Northern Ireland Human
Rights Commission and the Office of the United Nations Commissioner for Human Rights, 20–22
June, 2006, Belfast, Northern Ireland, available at: <http://www.nhri.net/pdf/Final_report_
RT_Belfast.pdf> (accessed 30 June 2010).
80 ‘Human Rights Accord between the Government of Nepal and the Communist Party of Nepal-
Maoist (CPN-M) (Draft)’, 22 May 2006, available at: <http://www.nhrcnepal.org///publication/
doc/reports/HRA%20ENG.pdf> (accessed 28 June 2010).
81 GA Res. 217A (III) (1948).
82 Comprehensive Peace Agreement, preamble.
the restoration of parliamentary democracy and elections for a Constituent
Assembly; the ending of impunity; and respect for and protection of civil, political
and socio-economic rights. In addition, the parties agreed to establish a Truth and
Reconciliation Commission to conduct investigations into gross violations of human
rights and a National Peace and Rehabilitation Commission to ensure the successful
implementation of a permanent peace.83 Paragraph 9 of the Accord assigned the
management of arms and the armies to the UN Mission (Nepal), the supervision
of the Constituent Assembly elections to the UN and the monitoring of the human
rights provisions contained in the agreement to the OHCHR (Nepal) and the
NHRC (in addition to its existing legislative responsibilities).
While the signing of the CPA seemed to yield an initial period of democratic
activities and a decrease in killings, torture and abductions, one year after the
signing of the Accord the Annual Report of the NHRC84 and a report by the
OHCHR85 indicated a distinct lack of compliance with CPA commitments by the
Government of Nepal and the CPN-M. Both reports illustrate extensive monitoring
and on-the-spot investigations undertaken by the NHRC86 and OHCHR pursuant
to the CPA. Despite the indication of some improvements (such as the resettlement
of some IDPs, the Constituent Assembly elections in April 2008 and the intro-
duction of legislation designed to protect human rights and promote democracy),
NHRC and OHCHR surveillance and reporting demonstrated a deterioration in
human rights protection as human rights were ‘marginalised and subordinated to
political considerations in the peace process’.87 With the CPN-M winning the
majority of seats in the 2008 Constituent Assembly elections, any political consensus
which followed the signing of the Peace Accord, gave way to an increasing mistrust
and accentuated differences of opinion between the two main parties,88 and
commitments to implementing CPA provisions were gradually undermined.89
Under the CPA, the work of the NHRC increased and its resources were
stretched. However, in the absence of tackling the root causes of the conflict
(discrimination, the absence of socio-economic and cultural rights, weak rule of law
83 Ibid, paras 5.2.5, 5.2.4.

84 National Human Rights Commission Nepal Annual Report July 2007–June 2008, pp. 13–14, available at:
<http://www.nhrcnepal.org///publication/doc/reports/Annual-Report-Eng-2007-08.pdf>
85 United Nations Office of the High Commissioner for Human Rights in Nepal (‘OHCHR-Nepal’),
‘Human Rights in Nepal: One Year after the Comprehensive Peace Agreement’, December 2007,
available at: <http://nepal.ohchr.org/en/resources/Documents/English/reports/HCR/CPA
%20Report.pdf> (accessed 1 April 2010).
86 See also NHRC, ‘Summary of the Report on the Status of Human Rights under the CPA’, 2007,
available at: <http://www.nhrcnepal.org///publication/doc/reports/Summary%20of%20the%
20report%20_2_.pdf> (accessed 15 September 2010).
87 OHCHR-Nepal, op. cit. (note 85), p. 1. See also Burdekin, op. cit. (note 11), pp. 110–11.
88 Human Rights Watch, op. cit. (note 8), p. 2.
89 NHRC, ‘Three Years of the Comprehensive Peace Accord’, December 2009, p. 6, available at:
<http://www.nhrcnepal.org///publication/doc/reports/3-year_CPA.pdf> (accessed 4 April
2010).
institutions and a culture of impunity90 – tasks beyond the capacity of an under-
resourced Commission) the CPA objective of transforming the ceasefire into a
sustainable peace appeared increasingly unattainable. The establishment of the
Ministry of Peace and Re-Construction and the Land Reforms Commission, the
introduction of the Adoption of the Rights to Information Act 2007, the Human
Trafficking and Control Act 2007, the Anti-Domestic Violence Act 2008 and the
provision of government loans and grants to facilitate the return of IDPs, have all
been significant human rights initiatives,91 and complementary to and supportive
of the primary work of the NHRC and OHCHR. However, the fact that no single
prosecution for serious crimes committed during the conflict was referred to a
civilian court,92 remains a significant barrier to the development of a political

environment conducive to the attainment of peace. In a report which describes the
monitoring of CPA human rights provisions over three years, the NHRC observed
that the large-scale withdrawal by government of cases involving serious offences
such as murder, rape and kidnapping was not only dismissive of its commitments
under the CPA but promoted a culture of impunity.93 The report noted that the
maintenance of this culture, which fosters human rights violations and allegations,
signals a condoning of violence to serve political ends,94 suspending progress
towards peace.
In a review of its role under the CPA, the NHRC highlighted the relationship
between peace and human rights: in the absence of peace, development and human
rights security remained ‘imagined’ concepts.95 Although securing justice for past
abuses may conflict with and obstruct the inevitable compromise required for
political resolution and peace,96 the review concluded that tackling impunity and
improving accountability were essential preconditions for ‘managing Nepal’s
fractious transition’.97 The NHRC can continue to monitor, expose, report and
make recommendations on the need for the prosecution of human rights violations
and the provision of compensation for victims of the conflict. However, in the
absence of any power (on the part of the Commission) to pursue these claims
90 OHCHR, ‘Voices of Victims – Transitional Justice in Nepal’, United Nations Human Rights, 2010,
available at: <http://www.ohchr.org/EN/NewsEvents/Pages/TransitionalJusticeNepal.aspx>
91 NHRC, op. cit. (note 89), pp. 4–5.
92 R. Chalmers, ‘Nepal’s Peace Process is Undermined by the Failure to Address the Systematic
Crimes Committed during the Country’s Conflict’, Press Release, 14 January 2010, available at:
<http://www.hrea.org/lists2/display.php?language_id=1&id=15906> (accessed 1 April 2010).
93 Ibid.
94 Ibid.
95 NHRC, op. cit. (note 89), p. 32.
96 In July 2009, the OHCHR-Nepal launched a nationwide ‘Peace through Justice’ project to
facilitate accountability and sustainable peace in Nepal. Funded by the UN Peace Fund for Nepal,
the project supports the establishment and effective functioning of a Truth and Reconciliation
Commission and a Commission of Inquiry on Disappearances, required under the Comprehensive
Peace Agreement.
97 Chalmers, op. cit. (note 92).
coupled with a clear resistance by government and its agencies to do so, the
Commission’s contribution to the pursuit of justice and peace will continue to be
frustrated.
Measuring NHRC impact: an uneven record of

achievement
In its 2008 Report on the Performance and Establishment of National Human Rights
Institutions in Asia, the Asia NGOs Network on National Institutions (‘ANNI’) argued
that given civil society’s ‘overwhelming dissatisfaction [with] . . . the ineffectiveness
of NHRIs’, ‘effectiveness’, in addition to financial and operational independence,

adequate funding and representative membership, should be included as a further
criteria for ICC reviews of the accreditation status of a national human rights
institution.98 In an evaluation of the NHRC Capacity Development Project
undertaken in February 2006 commissioned by the OHCHR (‘the Dwyer
report’),99 the authors concluded that the NHRC had failed to demonstrate a
capacity to contribute to positive change in Nepal. The Dwyer report recognized
that the breakdown of democratic rule, increasing violent conflict between security
forces and the Maoist insurgents, and the unpredictable machinations of
government, combined with deficiencies within the NHRC, had undoubtedly
impeded the Commission’s performance.100 However, even in the absence of
functioning democratic structures, there was some expectation that an independent
human rights institution would ‘fill the void by advocating for the rule of law,
participatory approaches to decision-making . . . [and] the provision of remedies’.101
An unfair expectation perhaps, but arguably warranted given the Commission’s
record in retaining its ‘A’ status accreditation by the ICC. While inadequate
funding and resources clearly impact on the Commission’s work, a lack of political
commitment to creating a climate of peace, the absence of comprehensive
government social and economic programmes and ambivalent support from
international agencies are factors which require specific consideration when
evaluating a NHRI operating in an environment of sustained armed conflict.
Political instability
As the Dwyer report points out, the capacity of the NHRC to effectively implement
its mandate has been significantly undermined by political events. These have
contaminated the procedure for, and selection of, Commissioners with the govern-
ment failing to appoint Commissioners for a period of 17 months in 2006. In the
98 Asia NGOs Network on National Institutions (ANNI), 2008 Report on the Performance and Establishment
of National Human Rights Institutions in Asia, pp. 19–20, available at: <http://www.forum-
asia.org/in_the_news/pdfs/ANNI2008web.pdf> (accessed 4 April 2010).
99 Adhikari, op. cit. (note 15).
100 Ibid, p. 5.
101 Ibid, p. 1.
previous year, the King established a nine-person Human Rights Committee
headed by the Attorney-General to complement in theory, and undermine in
practice, the exposure by the Commission of human rights violations by the Royal
Nepal Army.102 In addition, NHRC staff have been hampered in the conduct of
investigations into human rights violations with Commissioners and staff being
intercepted by Nepalese security forces at Kathmandu airport when attempting
to board a flight to Kapilvastu District to investigate clashes between local people
and Maoists involving alleged lynchings and the burning of 700 houses.103 Contrary
to commitments contained in the CPA, NHRC staff have been denied access
to army barracks and only permitted access to police stations with advance
notice.104 Security officers who refused NHRC staff entry to a detention centre in
Kathmandu advised they had been ordered ‘from above’ to prevent Commission
access.105 Perhaps the NHRC’s greatest frustration has been an inability to achieve
impact, given the reluctance by ‘unresponsive governments’ to implement
Commission recommendations following inspections and ‘on-the-spot’ investi-
gations of human rights abuses.106
Inadequate funding
The ongoing failure of the Nepalese government to adequately fund the NHRC
has meant that the institution primarily responsible for improving Nepal’s critical
human rights situation has effectively lacked the means to do so since its inception.
A recurrent concern raised by the ICC during its various reviews of the NHRC,
has been a failure to demonstrate adequate funding and to ensure the Commission’s
financial autonomy. The ICC noted in particular that the Interim Constitution
failed to contain any provision dealing with the financial autonomy of the NHRC
and that the Commission’s lack of sufficient financial independence had ‘impede[d]
its operations and independence’.107 The NHRC acknowledged that given the
government’s contribution to the budget would be insufficient to fund the expan-
sion of programmes anticipated by its 2008–10 Strategic Plan, contributions from
102 Asian Centre for Human Rights, ‘The Challenge of Restoring Democracy in Nepal’, 20 April
2005, available at: <http://www.achrweb.org/Review/2005/69-05.htm> (accessed 4 April
2010).
103 ‘Sushil Pyakurel Leaves for Human Rights Mission to US’, Peace For Nepal, 20 March 2005,
available at: <http://peace4nepal.blogspot.com/> (accessed 1 April 2010).
104 Amnesty International, ‘Nepal: Rights Must be Restored along with the Lifting of the State of
Emergency’, Press Release, 4 May 2005, available at: <http://peace4nepal.blogspot.com/>
105 Asian Centre for Human Rights, ‘The Ugly Case: NHRC of Nepal’, 10 August 2005, available
at: <http://www.achrweb.org/Review/2005/85-05.htm> (accessed 17 June 2010). See also at
Poudyal, op. cit. (note 20), pp. 40–1.
106 Arbour, op. cit. (note 70).
107 ‘Brief for the Sub-Committee to consider the accreditation status of the National Human Rights
Commission of Nepal’, 2008, available at: <http://www.nhri.net/2009/NEPAL%20%20
Special%20Review%20Brief%20-%20FINAL.pdf> (accessed 4 April 2010).
bilateral and multilateral donors would be crucial to its operations.108 Bipin
Adhikari, in his 2004 study of the NHRC, argues that the Human Rights
Commission Act 1997, while silent on the government’s responsibility to provide
sufficient financial resources to the NHRI, endorsed the Commission securing
financial support from external agencies (s 15) – an ‘implicit acceptance’ that the
government would not provide adequate funding as required by the Paris
Principles.109 Adhikari noted that the lack of a secure and adequate funding base
for the Commission meant that it was unable to ensure even the bare operating
costs for its activities or pay sufficient wages to avoid ‘high staff turnover’.110
The existence of adequate funding is critical not only for the training and
retention of competent staff, but also to devise and implement an ambitious but
essential work plan and address issues of human rights importance as they are
identified across the country. The work of the NHRC is not confined to human
rights complaints of discrimination and educational activities. The conflict in Nepal
requires specific and additional training and increased resources aimed at the
urgent and ongoing need to resolve disappearance and abduction cases, to improve
institutional accountability within the police and Nepal Army, to secure pros-
ecutions and combat impunity, and address the marginalization of communities
in the Terai district where divisions along ethnic and caste lines create acute
political tensions.111 While Adhikari concedes that the NHRC would struggle to
function in the absence of foreign donor support, he warns that reliance on donor
funding may undermine the development of a long-term coherent Commission
policy and plan, given that donor funds are often linked to a specific (short-term)
programme or purpose rather than provided to the Commission as a whole.112
Additionally, foreign donor-sponsored projects risk government accusations that a
commission is captive to donor-driven agendas, a further justification for
disregarding or dismissing its project findings and recommendations.
Perhaps the most pressing and intractable problem which continues to under-
mine and divert the work of the NHRC, is the existence of a state which seems
unable to secure or improve the provision of justice through human rights. The
Government of Nepal, and particularly its security forces, while committing to
human rights agendas and undertakings, lacks the capabilities and zeal to end or
prevent the resurgence of Maoist rebellions and the lawlessness of its own security
108 Section 15 of the Human Rights Commission Act 1997 (Kingdom of Nepal), headed Financial
Management, provides that the Commission may obtain external funding for the performance
of its functions.
109 Adhikari, op. cit. (note 15), pp. 13–14.
110 Ibid.
111 ‘Report of the Secretary-General on the Request of Nepal for United Nations Assistance in support
of its Peace Process’, 3 January 2008, p. 3, para. 10, available at: <http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N08/200/73/PDF/N0820073.pdf?OpenElement> (accessed
17 June 2010).
112 Human Rights Watch, op. cit. (note 30), p. 3. The report urges ‘donors to use their leverage with
the Nepali government, which depends on donor assistance for almost 60 per cent of its national
development budget, to insist on tangible improvements in the human rights record of government
forces’.
agents. Added to the maintenance of a significant security and defence commitment
is a lack of human, material and organizational resources to deliver comprehensive
social and economic programmes to build an enduring resolution of the conflict
and an effective political democracy. Against this background, and the negligible
success in ending a culture of impunity, the task of delivering human rights and
contributing to the achievement of a ‘sustainable peace in the country’113 by an
under-resourced, minimally trained, and evidently over-stretched human rights
commission, seems overly ambitious if not unachievable.
International support
In January 2010, UN Secretary-General Ban Ki-Moon cautioned that the primary

disagreements ‘that have brought the peace process [in Nepal] close to a standstill
remain unresolved, increasing the risk of its collapse’.114 The role of the inter-
national community – UN agencies, international human rights organizations and
donor countries – in supporting and building the capacity of the NHRC has made
some difference to its functioning. However, to build and sustain the work and
impact of the Commission requires the international community to develop and
maintain a political environment conducive to human rights promotion and
protection. Military and political support to the Nepalese government, primarily
from the United States115 and India, has been forthcoming despite continuing
abuses by state security forces and a reluctance to hold perpetrators accountable.116
Human Rights Watch has observed that without ‘sustained international pressure’
directed at a political or military resolution of the war, Nepal was at risk of descend-
ing ‘into the ranks of a failed state’.117
Attempts to build and strengthen the capacity of the NHRC by international
organizations and donor countries have been critical to the NHRC’s survival and
work programme. The UNDP capacity development project of the NHRC (referred
to above) focused primarily on building and strengthening the operational capacity
of the Commission to facilitate its substantive work. The UN OHCHR mission to
Nepal, established in 2005, had a similar mandate to that of the NHRC in addition
to supporting the work of the Commission. While potentially complementary, the
relationship between the OHCHR – with its limited (in time) ‘mandate, highly
trained and skilled personnel and the resources, capacity and international standing
to confront complex political issues’118 – and the less endowed NHRC, became
113 NHRC, op. cit. (note 89), p. 32.

114 Asian Centre for Human Rights, op. cit. (note 75), p. 2.
115 In October 2004, the US Congress passed legislation that the provision of military aid was
conditional on the Royal Nepal Army obeying Supreme Court orders, cooperating with the
NHRC and investigating abuse allegations made against personnel under its control. See Tejshree
Thapa, ‘A Dirty War’, Nepali Times, 2–8 September, 2005, available at: <http://www.nepalitimes.
com/issue/2005/09/02/GuestColumn/872> (accessed 15 September 2010).
116 Human Rights Watch, op. cit. (note 30), p. 4.
117 Ibid, p. 7.
118 Dwyer, Moran and Kharel, op. cit. (note 53), p. 19.
increasingly strained. Despite the enormity of the human rights project in Nepal,
both organizations, keen to assert their legitimacy and prove their effectiveness, have
essentially occupied (and competed for) similar space, undertaking parallel functions
and seeking the support of similar national and international institutions.119 For this
reason and to clarify their relationship, a memorandum of understanding was signed
by the OHCHR-Nepal and the NHRC in February 2009,120 which detailed the
nature and extent of collaboration between the two organizations.121
In mid-2009, the OHCHR-Nepal’s mandate was extended for one year until
June 2010.122 The impending departure of the OHCHR from Nepal, during a
period of ‘measurable’ decline in human rights protection,123 would mean the
absence of the major international human rights monitoring body whose presence
in Nepal has secured protection for human rights defenders, including the
NHRC.124 The visit by UN High Commissioner for Human Rights, Navi
Pillay to Nepal in March 2009, renewed international focus on the country and
exposed the government’s prolonged failure to implement justice and account-
ability and its commitments under the CPA. She warned that the peace process
would fail unless victims of rights violations were accorded justice, and urged both
government support of the NHRC (in particular, to respond to a backlog of
recommendations) and a renewal of the UN OHCHR mandate for three years.125
A year later, in March 2010, the Government of Nepal announced that it would
forward a draft proposal to the UN OHCHR for an extension, albeit ‘scaled
down’, of the OHCHR-Nepal’s mandate. The proposal saw the NHRC having
a ‘lead role’ in monitoring the human rights situation and envisaged the OHCHR
playing an advisory role to the National Women Commission and National Dalit
Commission.126
In an environment of increasing violence and political tensions and an indefinite
bandh (strike) called by the Maoists in early May 2010,127 permission to extend the
119 Ibid.
120 Guidelines for Cooperation between the National Human Rights Commission (NHRC) and the
Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal), signed 20
February 2009, available at: <http://nepal.ohchr.org/en/resources/Documents/English/other/
2009/2009_02_20_NHRC_Guidelines_E.pdf> (accessed 15 September 2010). The agreement
raised a number of concerns within Nepal’s civil and international community, primarily that the
high levels of monitoring responsibility agreed to by the NHRC, were beyond its capacity.
121 Dwyer, Moran and Kharel, op. cit. (note 53), p. 20.
122 OHCHR, op. cit. (note 90).
123 Asian Centre for Human Rights, op. cit. (note 75), p. 1.
124 Ibid, p. 3.
125 N. Pillay, UN High Commissioner for Human Rights, ‘Statement to the Media’, Kathmandu,
22 March 2009, available at: <http://nepal.ohchr.org/en/resources/Documents/English/
statements/HC/Year2009/2009_03_22_HC_Final_Statement_E.pdf> (accessed 1 April 2010).
126 ‘Govt to Send Proposal to OHCHR-Nepal Term Extension and Mandate’, Kathmandu Post
(Kathmandu), 19 March 2010, available at: <http://www.ekantipur.com/2010/03/19/top-
story/govt-to-send-proposal-to-ohchr-nepal/310572/> (accessed 1 April 2010).
127 ‘Maoists Call Indefinite Nepal Bandh from May 2’, Times of India, 26 April 2010, available at:
<http://timesofindia.indiatimes.com/articleshow/5860381.cms> (accessed 24 June 2010).
presence of a well-resourced, functioning international human rights body in Nepal128
could only assist in preserving progress on the peace process. Calls from the human
rights community in Nepal, who have little belief in the capacity of the NHRC to
play a ‘lead’ role in advancing human rights, sought a renewal of the OHCHR’s full
mandate and its ‘return to field-based protection and monitoring’ for additional two
years, to no avail.129 Despite an uneasy relationship, the reduced mandate of the
OHCHR will mean an increased expectation on an already faltering national human
rights commission. The improbability of an end to impunity for past violence, no
immediate signs of an increase in NHRC funding, a lack of government action on
NHRC recommendations130 and a flagging peace process as political violence is
renewed,131 point to an increased and untenable responsibility on the NHRC to

protect human rights across a politically violent and economically fragile nation.132
Conclusion
Burdekin observes that the drafters of the Paris Principles in the early 1990s did
not envisage that NHRIs would undertake a key role in situations of civil conflict
and political transition and no reference was included to accommodate this
eventuality. This omission from the Paris Principles and recognition of increasing
regional conflicts led to the inclusion ten years later of provisions on the role of
NHRIs in conflict situations in the Commonwealth Secretariat National Human
Rights Institutions Best Practice Guidelines.133 The Guidelines provide that NHRIs
operating within conflict situations should continue their work of promoting and
protecting human rights and peace-building, particularly assisting vulnerable
128 ‘OHCHR Nepal’s One Year Extension Official’, 10 June 2010, available at: <http://www.nepal
news.com/main/index.php/news-archive/19-general/6701-ohchr-nepals-one-year-extension-
official.html> (accessed 24 June 2010).
129 S. Chakma, ‘Not the Right Time’, Kathmandu Post, 27 May 2010, available at: <http://www.
ekantipur.com/2010/05/27/oped/not-the-right-time/315150/> (accessed 24 June 2010).
130 ‘NHRC Laments Lack of Action on Its Recommendations’, Nepal News (Kathmandu), 15 October
2008, available at: <http://www.nepalnews.com/archive/2008/oct/oct15/news12.php>
131 See Asian Human Rights Commission, op. cit. (note 12). See also Report of the Secretary-General
on the request of Nepal for United Nations assistance in support of its peace process, UN Doc.
S/2010/17 (2010).
132 In its 2007–08 Annual Report, the NHRC lists as its major challenges: ‘non-implementation of
NHRC Recommendations in full-fledge; prevailing culture of impunity; failure to declare the
status of disappeared and abducted persons during the conflicts; slow progress on the return of
public and private properties seized by the CPN-Maoist; lack of conducive atmosphere to return
the IDPs back home; delay in the formation of TRC and Peace and Rehabilitation Commissions’:
Nepal Human Rights Commission, Annual Progress Report July 2007–June 2008, available at:
<http://www.nhrcnepal.org///publication/doc/reports/Annual-Report-Eng-2007-08.pdf>
133 Burdekin, op. cit. (note 11), p. 109. See also ‘Commonwealth Secretariat National Human Rights
Institutions Best Practice Guidelines’, 2001, ch. VI, para. 6.1, available at: <http://www.asia
pacificforum.net/members/international-standards/downloads/best-practice-for-nhris/
nhri_best_practice.pdf> (accessed 30 June 2010).
communities.134 In June 2009, the ICC adopted General Observations on the
application and interpretation of the Paris Principles,135 which relevantly provides:
The Sub-Committee acknowledges that the context in which an NHRI

operates may be so volatile that the NHRI cannot reasonably be expected to
be in full conformity with all the provisions of the Paris Principles. When
formulating its recommendation on the accreditation status in such cases,
the Sub-Committee will give due consideration to factors such as: political
instability; conflict or unrest; lack of state infrastructure, including excessive
dependency on donor funding; and the NHRI’s execution of its mandate in
practice.136
This is an important acknowledgment of the constraints under which NHRIs have

to function in politically volatile environments. It is also recognition that NHRIs,
although often constrained and impeded by political context, can contribute to the
national advancement of international human rights principles and standards and
the protection of civilians whose lives and property are at risk. The accreditation
of NHRIs (particularly ‘A’ status ranking) is endorsement of their compliance with
internationally accepted principles – a downgrading of status by the ICC not only
signals a failure of full compliance with the Paris Principles, but may also undermine
the legitimacy and effectiveness of an NHRI in the eyes of international bodies and
civil society and deter potential or existing international donors from funding their
operations or specific projects.
In countries gripped by conflict or negotiating difficult political transitions,
NHRIs are often stretched beyond capacity and required to execute a broad and
expanding mandate with insufficient human and financial resources. In addition,
they work with governments who are often more concerned with political security
than human rights and, accordingly, NHRI recommendations and advice to
governments and their agencies, often based on extensive investigations and inspec-
tions, are not prioritized. Thus, while NHRIs may comply with the Paris Principles
to warrant ‘A’ status accreditation, the political conditions under which they are
expected to execute their mandate can limit their effectiveness substantially.
As discussed earlier in this chapter, the ANNI has argued for the inclusion of
‘effectiveness’ as further criteria in determining the status of NHRIs. What this
chapter has sought to illustrate is that the ‘effectiveness’ of NHRIs operating in
states of conflict is often undermined by governments who permit a culture of
impunity, disregard peace agreement commitments and maintain social and eco-
nomic inequalities and exclusionary practices. These governments, with question-
able or disquieting human rights records and dubious or wavering commitments
134 Ibid.
135 ICC Sub-Committee on Accreditation, ‘General Observations Adopted by the International
Coordinating Committee of National Human Rights Institutions for the Promotion and Protection
of Human Rights (ICC)’, 2009, available at: <http://www.nhri.net/2009/General%20
observations%20June%202009%20(English).pdf> (accessed 1 April 2010).
136 Ibid, para. 5.3 (‘Functioning of an NHRI in a volatile context’).
to human rights agendas, may stand to gain from ‘A’ ranking accreditation by an
international body, particularly where they are keen to retain power, bolster their
international standing or attract and maintain international funds and investment.
The UN, particularly the OHCHR, and the ICC and its regional coordinating
committees, such as the Asia Pacific Forum of National Human Rights Institutions
(‘APF’), have continued to advocate for the establishment of Paris Principles-
compliant NHRIs as important and constructive partners in the promotion and
protection human rights.137 Increasingly, in addition to their core mandates of
human rights promotion and protection, NHRIs are being assigned key roles in
the implementation and monitoring of human rights under peace agreements and
post-conflict transitional arrangements. While the ICC’s General Observations

permits some degree of latitude for Paris Principles compliance by NHRIs operat-
ing in politically volatile environments, their effective and long-term functioning
and contribution (and consequent legitimacy) is often dependent on the political
agenda (rather than the human rights commitments) of their sponsoring govern-
ments which can derail and impede the critical execution of NHRI work plans.
Accordingly, in addition to compliance with Paris Principles criteria, ICC reviews
of NHRIs operating in volatile contexts should include an assessment of relevant
government conduct that has undermined NHRI activity and recommend that
governments undertake certain steps within a period of time to address these barriers
to NHRI effectiveness. With reference to Nepal, these recommendations might
include commencing prosecutions against alleged perpetrators of human rights abuses
(such as in the case of the Doramba incident) to address the issue of impunity. In
addition, the government should introduce a process for the tabling and debate of
the NHRC Annual Report by Parliament and for the implementation of Commission
recommendations.138 Given the central role of civil society in the resolution of conflict,
the Nepalese government and the NHRC should be encouraged to establish an
NHRI, an NGO and a government consultation mechanism which meets at regular
intervals to ensure civil society participation in transitional arrangements and the
implementation of mechanisms which will advance the peace process, for example
the establishment of the Truth and Reconciliation Commission.139 To ensure
appropriately qualified Commissioners, the ICC might recommend that the Nepalese
government (which selects NHRC Commissioners) fund the development and
conduct of training programmes for new NHRI Commissioners specifically on the
operation of NHRIs in conflict situations and principles of international humanitarian
law. Devised in collaboration with the NHRC, the International Committee of the
137 See Vienna Declaration and Programme of Action, op. cit. (note 37).
138 The SCA’s recommendations in March 2010 in relation to Nepal make reference to addressing
the issue of impunity and to the tabling of the NHRC Annual Reports by Parliament. See NHRC-
Nepal, op. cit. (note 72).
139 The Peace through Justice Project implemented in July 2009 by the OHCHR-Nepal funded by
the UN Peace Fund for Nepal (UNPFN) and the Governments of Norway, the United Kingdom,
Denmark, Canada and Switzerland is an interesting initiative in this regard. See OHCR-Nepal,
‘United Nations Peace Fund for Nepal’, available at: <http://nepal.ohchr.org/en/resources/
Documents/English/Peace%20through%20Justice/More_Information_E.pdf> (accessed 4 April
2010).
Red Cross and the APF, this training, with an additional human rights law
component, could extend to government personnel involved in the development and
operation of various post-conflict commissions (eg Land Reform and National
Women Commissions) and to army, police and prison personnel.140
A further mechanism for highlighting obstructive government conduct could be
via the Human Rights Council. Evidence before the ICC could usefully be fed back
to the Human Rights Council (possibly via the UPR process), which would give
added international focus to the deficiencies in state practice observed by the ICC.
These recommendations (and potentially others) do not detract from the
importance of NHRI compliance with the Paris Principles. Rather they recognize
that the effectiveness of NHRIs operating in states of conflict, war and transition
often require reinforcement from sponsoring governments beyond conformity with
the Paris Principles criteria. While their expanded role to promote, protect and
monitor human rights will inevitably require enhanced state funding, NHRI
effectiveness is reliant on government endorsement of their recommendations,
access to sites of human rights abuse, and the autonomy to hold the state account-
able for human rights violations without reprisal. Even if the ‘core business’ of
NHRIs – complaints investigation and human rights education – is ‘optimally
discharged’ in post-conflict countries, their impact in progressing peace may be
negligible if the underlying causes which generate human rights violations are not
addressed.141 If NHRIs are increasingly promoted as key actors in building and
strengthening democracy in volatile states, it is incumbent on their advocates to
ensure appropriate support from host governments. The ambitious task of securing
justice and transforming rights-resistant states assumed by NHRIs in conflict
environments demands that international and regional human rights bodies
including the ICC and APF, and donor countries require states to embark on a
parallel enterprise of building political environments receptive to and respectful of
NHRI objectives.142 In the absence of this commitment, national human rights
institutions risk being set up to fail.
140 On receiving the 2007–08 NHRC Annual Report, the President of Nepal, Dr Ram Baran Yadav,
suggested that the NHRC conduct a human rights awareness programme for members of the
Constituent Assembly ‘to make the new constitution human rights friendly’. See ‘Nepal: NHRC
Submits Human Rights Report to President’, available at: <http://www.asiapacificforum.net/
news/nepal-nhrc-submits-human-rights-report-to-president.html> (accessed 5 April 2010).
141 J. Kollapen, Chairperson, South African Human Rights Commission, ‘Address to National
Human Rights Institution, Conflict Management and Peacebuilding in Africa Seminar’, paper
presented at the Centre for Conflict Resolution, Cape Town, 29 November–3 December 2004,
p. 37, available at: <http://www.ccr.org.za/images/stories/19._NHRI_Report-D4.pdf> (accessed
15 September 2010).
142 See M. Parlevliet, ‘National Human Rights Institutions and Peace Agreements: Establishing
National Institutions in Divided Societies’, paper delivered at the International Council on Human
Rights Policy Review Meeting, Belfast, 7–8 March 2005, pp. 26–30, available at: <http://www.
ichrp.org/files/papers/61/128_-_National_Human_Rights_Institutions_and_Peace_
Agreements_Parlevliet__Michelle__2005.pdf> (accessed 15 September 2010). See also
Conclusion and Recommendations in UN Development Programme, Nepal Human Development
Report 2009: State Transformation and Human Development, 2009, pp. 103–12, available at:
<http://www.undp.org.np/publication/html/nhdr2009/> (accessed 15 September 2010).
12 Corporate human rights
abuses: what role for the
national human rights
institutions?
Surya Deva
Introduction
Violation of human rights by non-state actors such as corporations has attracted
significant attention in recent years.1 The Asia-Pacific region is no exception to
this. Reported incidents of corporate involvement in human rights abuses have
ranged from internet censorship in China to the employment of child/forced labour
in the construction of oil pipelines in Myanmar, environmental pollution of Ok
Tedi River in Papua New Guinea, exposure of workers to asbestos-related health
risks in Australia and sweatshops in Asia generally.2
Since in many cases multinational corporations (‘MNCs’) operating at a
transnational level have been involved in these human rights abuses, one tends to
look towards international law for remedial solutions. But is international (human
rights) law apt to deal with non-state actors? The conventional human rights
framework has been predominantly state-centric.3 This is reflected in how human
1 H. Steiner, P. Alston and R. Goodman, International Human Rights in Context: Law Politics Morals,
New York: Oxford University Press, 2008, pp. 1385–6.
2 Amnesty International, ‘Undermining Freedom of Expression in China: The Role of Yahoo!,
Microsoft and Google’, 19 July 2006, available at: <http://www.amnesty.org/en/library/
info/POL30/026/2006> (accessed 30 September 2010); S. Deva, ‘Corporate Complicity in
Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom
Act?’, George Washington International Law Review 39, 2007, p. 255; A. Ramasastry, ‘Corporate
Complicity: From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their
Impact on the Liability of Multinational Corporations’, Berkeley Journal of International Law 20, 2002,
p. 91; B. Burton, ‘The Big Ugly at Ok Tedi’, Multinational Monitor 23, Jan/Feb 2002, available at:
<http://www.multinationalmonitor.org/mm2002/012002/front.html> (accessed 30 September
2010); D. Jackson, Report of the Special Commission of Inquiry into the Medical Research and Compensation
Foundation, 2004; S. Cooney, ‘A Broader Role for the Commonwealth in Eradicating Foreign
Sweatshops?’, Melbourne University Law Review 28, 2004, p. 290.
3 ‘The centrality of the state is one of the defining features of international law and the human rights
system builds upon this by seeking to bind states through a network of treaty obligations to which,
in the vast majority of cases, only states can become parties.’ Steiner, et al., op. cit. (note 1),
p. 1385. Fitzgerald further notes: ‘International law – and human rights law in particular – has
traditionally concerned itself with state responsibility, rather than the responsibility of non-states
actors such as companies.’ S. Fitzgerald, ‘Corporate Accountability for Human Rights Violations
in Australian Domestic Law’, Australian Journal of Human Rights 11, 2005, p. 33.
Corporate human rights abuses 235
rights protection has been construed – with some exceptions – in national, regional
and international instruments. International law generally defers to state sover-
eignty; the distinction between ‘public’ and ‘private’ spheres is still employed; the
state is conceived as almost the sole guardian of people’s rights; and various
mechanisms to implement and enforce human rights guarantees – at both national
and international levels – have been put in place.
In recent times, all of these positions have been subjected to criticism and
challenge.4 There are at least two major reasons for such criticism or challenge.
First of all, it is realized that states do not have a monopoly over human rights
violations. In an era of globalization and free market economy, several non-state
actors could pose equally serious threats to the realization of human rights.5
Secondly, states alone are incapable of ensuring effective protection to human
rights.6 In addition, on many occasions, states might be unwilling to vigorously
pursue the project of human rights realization.7
This chapter aims to look at one of the factors evidencing the state-focal nature
of the international human rights framework, that is, the state-centric bias of
existing human rights enforcement mechanisms. In particular, it looks at how
National Human Rights Institutions (‘NHRIs’) are not generally geared to respond
to human rights violations by non-state actors, and why that position should be
changed. It argues – with special reference to the experience of the National
Human Rights Commission (‘NHRC’) of India – that NHRIs could play an
important role in redressing human rights violations by non-state actors such as
companies.
The chapter starts by reviewing how the traditional state-centric conception of
human rights protection is undergoing a change in recent times. This change is
reflected in legislative and judicial attempts to extend the protection of human
rights guarantees against non-state actors and in various attempts to introduce a
regulatory framework to deal with corporate human rights abuses. It will be argued
that this deviation from the state-centric conception is critical if the human rights
project is to make headway in the years to come.
4 See, eg, R. Falk, ‘Sovereignty and Human Dignity: The Search for Reconciliation’, in F. Deng
and T. Lyons (eds), African Reckoning: A Quest for Good Governance, Washington: The Brookings
Institution, 1998, p. 12; H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Approaches to
International Law’, American Journal of International Law 85, 1991, p. 613; H. Charlesworth and C.
Chinkin, The Boundaries of International Law: A Feminist Analysis, Manchester: Manchester University
Press, 2000; S. Deva, ‘Human Rights Violations by Multinational Corporations and International
Law: Where from Here?’, Connecticut Journal of International Law 19, 2003, p. 1.
5 Steiner, et al., op. cit. (note 1), pp. 1385–1420. See also P. Alston (ed.), Non-State Actors and Human
Rights, Oxford: Oxford University Press, 2005; A. Clapham, Human Rights Obligations of Non-State
Actors, Oxford: Oxford University Press, 2006.
6 Ratner argues that ‘a system in which the state is the sole target of international legal obligations
may not be sufficient to protect human rights’: S. Ratner, ‘Corporations and Human Rights: A
Theory of Legal Responsibility, Yale Law Journal 111, 2001, p. 443 at p. 461.
7 Deva, op. cit. (note 4), pp. 8–9.
It then examines the role that NHRIs could play in promoting and protecting
human rights. Although the Paris Principles8 did not limit the mandate of NHRIs
to human rights violations committed by states, in practice most of the NHRIs have
been established to primarily redress state human rights abuses. While the Indian
NHRC is no exception, it has made interventions is some cases such as employment
of bonded labourers by companies and sexual harassment at workplace. It is argued
that there is no insuperable obstacle in harnessing NHRIs to deal with human rights
abuses by corporations.
Human rights and corporations

Although human rights and corporations (as well as the laws governing these) did
not historically share a common landscape, this position is certainly changing now,
as shown below. But let me begin by briefly alluding to the traditional conception.
Traditional conception
The involvement of corporations, or MNCs, in human rights abuses could perhaps
be traced as early as to the activities of the British East India Company in the 17th
century,9 a time when even the notion of human rights in its present form was
unknown. More recently, in the 20th century, the corporate role in perpetuating
human rights abuses during the Second World War10 and the apartheid regime11
came under scrutiny.
Nevertheless, the primary, if not sole, concern of human rights law at both
municipal and international levels was securing human rights against state action.12
Until recently, the constitutions of various states and other municipal human rights
laws did not, barring some exceptions,13 envisage expressly the application of
human rights obligations to corporations.
8 Principles relating to the Status of National Institutions for the Promotion and Protection of
Human Rights, GA Res. 48/134 (1993).
9 D. Dowling, ‘The Multinational’s Manifesto on Sweatshops, Trade/Labour Linkage, and Codes
of Conduct’, Tulsa Journal of International and Comparative Law 8, 2000, p. 27 at p. 52; B. Stephens,
‘The Amorality of Profit: Transnational Corporations and Human Rights’, Berkeley Journal of
International Law 20, 2002, p. 45 at p. 49 (and fnn 14–15).
10 Ratner, op. cit. (note 6), pp. 477–8; D. Weissbrodt, ‘Business and Human Rights’, University of
Cincinnati Law Review 74, 2005, p. 55 at pp. 56–7; N. Jägers, Corporate Human Rights Obligations: In
Search of Accountability, Antwerpen: Intersentia, 2002, pp. 195–6. See also E. Black, IBM and the
Holocaust: The Strategic Alliance between Nazi Germany and America’s Most Powerful Corporation, New York:
Crown Publishers, 2001.
11 In re South African Apartheid Litigation 2004 US Dist. LEXIS 23944. See also E. Borg, ‘Sharing the
Blame for September Eleventh: The Case for New Law to Regulate the Activities of American
Corporations Abroad’, Arizona Journal of International and Comparative Law 20, 2003, p. 607.
12 ‘International law and human rights law have principally focused on protecting individuals from
violations by governments’: Weissbrodt, op. cit. (note 10), p. 59.
13 The Indian Constitution of 1950 could be considered one such exception in that it provided for
certain fundamental human rights which were ‘designed to protect the individual against the
action of other private citizens,’ eg, arts 15(2), 17, 23. G. Austin, The Indian Constitution: Cornerstone
Similarly, apart from a limited number of jus cogens or customary human rights,14
the international human rights law did not initially impose specific human rights
obligations on corporations.15 Even reliance on a reference to the responsibilities of
‘every individual and every organ of society’ in the Universal Declaration of Human
Rights (‘UDHR’) and other international instruments16 is not sufficient to make
explicit the human rights responsibilities of corporations.17 It would perhaps be
accurate to say that during its early years international human rights law adopted
an ‘indirect’ approach in imposing and enforcing human rights obligations against
corporations.18 The rationale was that if states were placed under a legal obligation
to respect, promote and protect human rights, it also implied a derivative obligation,
ie that states had also to ensure that other natural or legal actors, including cor-
porations, operating within their respective territories respect human rights.19 This
early ‘blankness’ or ‘indirect approach’ of international human rights law regarding
human rights obligations of non-state actors was consistent with how human rights
historically evolved in the context of individuals versus states.20
of a Nation, Oxford: Clarendon Press, 1966, p. 51.

14 Clapham, op. cit. (note 5), pp. 86–91; International Council on Human Rights Policy, Beyond
Voluntarism: Human Rights and the Developing International Legal Obligations of Companies, Versoix: ICHRP,
2002, pp. 62–4.
15 This remains so despite persuasive argument made by Clapham that the provisions of several
regional and international human rights conventions do extend, or could be interpreted to extend,
to cover ‘private’ human rights violations: A. Clapham, Human Rights in the Private Sphere, New York:
Oxford University Press, 1993, pp. 91–101.
16 Commenting on the scope of the Preamble to the UDHR, Henkin famously argued: ‘Every
individual includes juridical persons. Every individual and every organ of society excludes no one, no
company, no market, no cyberspace. The Universal Declaration applies to them all’: L. Henkin,
‘Universal Declaration at 50 and the Challenge of Global Markets’, Brooklyn Journal of International
Law 25, 1999, p. 17 at p. 25 (emphasis in original). A reference could also be made to similar
provisions in the Preamble to the International Convention on Civil and Political Rights and arts
27–29 of the African Charter on Human and People Rights.
17 D. Kinley and J. Tadaki, ‘From Talk to Walk: The Emergence of Human Rights Responsibilities
for Corporations at International Law’, Virginia Journal of International Law 44, 2004, p. 931 at p. 949.
18 Weissbrodt, op. cit. (note 10), pp. 60–2; J. Zerk, Multinational and Corporate Social Responsibility:
Limitations and Opportunities in International Law, Cambridge: Cambridge University Press, 2006,
pp. 83–4. Professor Ruggie in his report to the Human Rights Council concluded that ‘it does not
seem that the international human rights instruments . . . impose direct legal responsibilities on
corporations’: Report of the Special Representative of the Secretary General on the Issue of
Human Rights and Transnational Corporations: Business and Human Rights – Mapping
International Standards of Responsibility and Accountability for Corporate Acts, UN Doc.
A/HRC/4/35 (2007), para. 44.
19 See ICHRP, op. cit. (note 14), pp. 46–52; A. Reinisch, ‘The Changing International Legal
Framework for Dealing with Non-State Actors’, in Alston (ed.), op. cit. (note 5), pp. 83–91.
20 ‘International human rights law aims primarily to protect individuals . . . from abusive action by
states and state agents’: D. Shelton, ‘Protecting Human Rights in a Globalising World’, in C. Ku
and P. Diehl (eds), International Law: Classic and Contemporary Readings, Boulder, Colorado: Rienner
Publishers, 2003, p. 333. Higgins notes: ‘A human right is a right held vis-à-vis the state, by virtue
of being a human being’: R. Higgins, Problems and Process: International Law and How We Use It,
Oxford: Clarendon Press, 1994, p. 98.
Winds of change
One may, however, notice that this traditional state-centric conception of human
rights has been changing in the last few decades slowly but surely. Some illustrative
signs are noted here. Both the blankness and indirect approach of international
human rights law qua corporate human rights responsibilities began to change
from the early 1970s, when the UN decided to research the impact of MNCs’
activities on development, and then the UN Commission on Transnational
Corporations proceeded to draft a code of conduct specifying the responsibilities
of MNCs.21 Although this attempt to draft a code at international level failed to
materialize,22 it at least emphasized the need for international regulation of MNCs’
activities. The 1976 OECD Guidelines and the 1977 ILO Tripartite Declaration
– both of which were revised in 200023 – for the first time sought to prescribe
directly and specifically the human rights responsibilities of MNCs in limited
areas.24 The UN Global Compact,25 the Norms on the Responsibilities of
Transnational Corporations and other Business Enterprises with regard to Human
Rights,26 and the work done by the Special Representative of the UN Secretary
General on the issue of Human Rights and Transnational Corporations and Other
Business Enterprises (‘SRSG’) took further – though in distinct ways – the quest to
bring corporations within the loop of human rights framework. All these initiatives
are evidence of the fact that in order to achieve fuller and wider realization of
human rights, the spectrum of human rights obligations should directly cover
corporations.
One should also notice that state constitutions and/or national human rights
statutes drafted in 1990s also contemplate the possibility of extending human rights
guarantees to private actors. The South African Constitution of 1996 is a very good
example of this trend. Section 8(2) of the Constitution provides that a provision of
21 P. Muchlinski, Multinational Enterprises and the Law, Oxford: Blackwell Publishers, 1999, pp. 5–6,
592–4; Jägers, op. cit. (note 10), pp. 119–24.
22 Muchlinski, op. cit. (note 21), pp. 594–7.
23 ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy,
17 November 2000, reprinted in 41 ILM 186 (2002); The OECD Declaration and Decisions on
International Investment and Multinational Enterprises, DAFFE/IME(2000)20, reprinted in 40
ILM 237 (2001).
24 OECD Declaration and Decisions on International Investment and Multinational Enterprises,
21 June 1976, reprinted in 15 ILM 967 (1976) (‘1976 OECD Guidelines’); and the ILO Tripartite
Declaration of Principles Concerning Multinational Enterprises and Social Policy, 16 November
1977, reprinted in 17 ILM 422 (1978).
25 The UN Secretary General Kofi Annan on 31 January 1999 at the World Economic Forum in
Davos proposed the Global Compact consisting of nine principles in the areas of human rights,
labour and the environment. Later, the tenth principle related to anti-corruption was added. See,
for the evolution and a critique, S. Deva, ‘Global Compact: A Critique of UN’s “Public-Private”
Partnership for Promoting Corporate Citizenship’, Syracuse Journal of International Law and Commerce
34, 2006, p. 107.
26 Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with
regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).
the Bill of Rights binds a natural or juristic person if, and to the extent that, it is
applicable, taking into account of the nature of the right and the nature of any duty
imposed by the right. On the other hand, in cases where the constitutional or
statutory provisions did not expressly apply to the private sector, the courts started
recognizing the possibility of a horizontal application of human rights in some
instances.27 For instance, the Indian Supreme Court in Vishaka v State of Rajasthan28
ruled that the protection of the right against sexual harassment will be available to
women working in private companies too.29
The winds of change also seem to be flowing through corporate laws. Several
countries have amended (or are considering amending) their company laws to impose
specific duties on directors of companies to do business in a socially responsible

manner, that is, to respect human/labour rights and not to cause undue
environmental pollution. The Companies Act 2006 of UK is a case in point, which
now imposes a specific duty on company directors to consider ‘the impact of the
company’s operations on the community and the environment’ while promoting the
success of the company.30 The revised Companies Law of China also lays down that
companies ‘shall . . . observe social morals and commercial ethics, persist in honesty
and good faith . . . and assume social responsibility’.31 Although the efficacy of these
developments is yet uncertain, they definitely pave the way for the engagement of
corporate law and companies in promoting human rights.32 In fact, at this point in
time most corporations do not deny, at least in public, that they have certain human
rights responsibilities. Increasingly, more and more big corporations are adopting
some kind of a code of conduct,33 and are designating a high level company official
(or division) to take care of the implementation of social responsibility issues.
Last but not least, the issue of human rights violations in the private sphere
or by non-state actors such as corporations, non-governmental organizations
(‘NGOs’), and terrorist organizations have received too much scholarly,34
27 The European Court of Human Rights has held that the failure of a state to prevent human rights
violations by private persons, including corporations, within its territory amounts to a violation
of a state’s mandate under international conventions. See Lopez Ostra v Spain (1994) 20 EHRR
277; Guerra v Italy (1998) 26 EHRR 357. See also the judgments of the Irish Supreme Court in
Parsons v Kavanagh (1990) 10 IR 560 and Lovett v Gogan (1995) 1 IR 12.
28 AIR 1997 SC 3011. See also Bodhisattwa Gautam v Subhra Chakraborty AIR 1996 SC 926.
29 The Court held that sexual harassment violated the right to life under art. 21 of the Constitution.
30 Companies Act 2006 (UK), s 172(1). In addition, the business review in directors report should
contain information about a company’s policies about environmental matters or other social and
community issues. Companies Act 2006 (UK), s 417(5)/(6).
31 Companies Law (PRC), adopted at the 18th Meeting of the Standing Committee of the 10th
National People’s Congress on 27 October 2005, came into effect on 1 January 2006, art. 5.
32 S. Deva, ‘Sustainable Development: What Role for the Company Law?’, International and
Comparative Corporate Law Journal, 8, 2011, p. 76.
33 ‘One would be hard-pressed to find any major corporation today that did not make some claim
to abiding by a code of conduct that comprised, at least in part, adherence to human rights
standards’: Kinley and Tadaki, op. cit. (note 17), p. 953.
34 See, eg, Clapham, Human Rights in the Private Sphere, op. cit. (note 15); Alston (ed.), op. cit. (note 5);
Oliver and Fedtke (eds), Human Rights and the Private Sphere, Abingdon: Routledge-Cavendish, 2008;
NGO,35 and media attention to be sidelined any longer. From the point of human
rights victims, it makes little difference whether the violator is a state agency or a
non-state entity. Accountability mechanisms should be directed at all power centres
– governmental or otherwise – that pose a threat to the human rights realization.
Jamieson rightly notes: ‘When government functions are moved from point A to
point B, we must be sure accountability moves with it.’36
NHRIS and corporate human rights abuses: a review

with reference to India
Considering that MNCs are regarded difficult regulatory targets,37 it is unsurprising

that we still do not have in place an effective regulatory framework that could offer
incentives to corporations to do business in a socially responsible manner.38 It also
means that human rights lawyers and activists are constantly looking for new
avenues to make corporations accountable for human rights breaches.
The positive contribution that NHRIs could make in promoting and protecting
human rights is well-recognized.39 More than 100 countries have established some
institution of this kind,40 and a closer interaction between NHRIs and the inter-
national human rights treaty bodies is on the cards.41 But could NHRIs also be
useful in redressing human rights violations by corporations? This question is
explored below.
L. Zegveld, Accountability of Armed Opposition Groups in International Law, Cambridge: Cambridge

University Press, 2002.
35 A. Ramasastry and R. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability
for Grave Breaches of International Law – A Survey of Sixteen Countries, Oslo: FAFO, 2006.
36 R. Jamieson, ‘Privatization and the Ombudsman’, in V. Ayeni, et al. (eds), Strengthening Ombudsman
and Human Rights Institutions in Commonwealth and Island States: The Caribbean Experience, London:
Commonwealth Secretariat, 2007, p. 58.
37 B. Stephens, ‘Corporate Liability: Enforcing Human Rights through Domestic Litigation’, Hastings
International and Comparative Law Review 24, 2001, p. 401; S. Holwick, ‘Transnational Corporate
Behaviour and Its Disparate and Unjust Effects on the Indigenous Cultures and the Environment
of Developing Nations: Jota v Texaco, a Case Study’, Colorado Journal of International Law and Policy
11, 2000, p. 183 at p. 193.
38 Of course other reasons also exist, for instance, the lack of political will on the part of states.
39 National Institutions for the Promotion and Protection of Human Rights, GA Res. 48/134 (1994).
See also L. Reif, ‘Building Democratic Institutions: The Role of National Human Rights
Institutions in Good Governance and Human Rights Protection’, Harvard Human Rights Journal
13, 2000, p. 1; C. Kumar, ‘National Human Rights Institutions and Economic, Social and
Cultural Rights: Toward the Institutionalization and Developmentalization of Human Rights’,
Human Rights Quarterly 28, 2006, p. 755.
40 ‘Chart of the Status of National Institutions’, available at: <http://www.nhri.net/2009/
Chart_of_the_Status_of_NIs__January_2010.pdf> (accessed 16 May 2010).
41 International Human Rights Instruments, Conclusions of the International Roundtable on the Role of
National Human Rights Institutions and Treaty Bodies, UN Doc. HRI/MC/2007/3 (2007). See also R.
Carver, ‘A New Answer to an Old Question: National Human Rights Institutions and the
Domestication of International Law’, Human Rights Law Review 10, 2010, p. 1 at pp. 19–29.
NHRIs and corporate human rights abuses
Most of the national, regional and international mechanisms aimed at redressing
human rights violations have been established on the premise that violators will be
states or state agencies. The NHRIs in the Asia-Pacific region are no exception to
this assumption. The NHRIs are generally mandated by their constitutions to
respond to human rights abuses committed by state agencies and state-owned or
controlled companies. A 2008 survey conducted by the Office of the UN High
Commissioner for Human Rights reveals that only 10 out of 43 surveyed NHRIs
have a complaint mechanism regarding all kinds of human rights involving any
type of company.42
This has been the case despite the fact that the Paris Principles do not seem to
limit the role of NHRIs in this way. Principle 1 provides that a national institution
‘shall be vested with competence to promote and protect human rights’. So, the
task of promoting and protecting human rights has in no way been limited to
situations involving state agencies. This position is further reinforced by Principle
2, which declares that a national institution ‘shall be given as broad a mandate as
possible’.43 In operational terms as well, the Paris Principles allow NHRIs to ‘hear
any person’, consider any question submitted by ‘any petitioner’, and ‘develop
relations with’ NGOs.44
Nevertheless, it is true that the Paris Principles do not expressly mandate NHRIs
to promote and protect human rights in the private sphere. Nor do academic
commentaries on NHRIs generally contemplate such a role for them.45 At the same
time, NHRIs are not prohibited from dealing with corporate human rights abuses,
and if the Paris Principles are silent about this issue it is perhaps because of the
state-centric bias of human rights law that I have alluded to. However, states are
under a positive duty to redress this bias by extending the mandate of NHRIs to
promote observance of human rights by businesses. This extension may be seen in
the context of the obligation flowing from article 2 of the International Covenant
on Civil and Political Rights (‘ICCPR’),46 as interpreted by the Human Rights
Committee in General Comment No. 31,47 to establish effective remedies to redress
human rights violations by private actors.48
42 Office of the UN High Commissioner for Human Rights, ‘Business and Human Rights: A Survey
of NHRI Practices’, 2008, p. 5, available at: <http://www.business-humanrights.org/Links/
Repository/708317> (accessed 4 July 2010).
43 The General Assembly also affirmed this position. See National Institutions for the Promotion
and Protection of Human Rights, GA Res. 48/134 (1994), Annex: Competence and
Responsibilities, para. 2.
44 Paris Principles, op. cit. (note 8), Principles 3(a), 3(b), 3(g).
45 See, eg, B. Ramcharan, ‘The National Responsibility to Protect Human Rights’, Hong Kong Law
Journal 39, 2009, p. 361 at pp. 390–4.
47 Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), paras
8, 15.
48 See, generally, Ramcharan, op. cit. (note 45), pp. 369–73.
The UN General Assembly has recently acknowledged the role of NHRIs in ‘the
promotion and protection of human rights in all sectors’49 – an indication of explicit
recognition that the role of NHRIs need not be limited to the public sector.
Furthermore, in recent years proposals have been mooted to involve NHRIs in
ensuring that corporations observe their human rights obligations. Four such
proposals or developments may be noted here. First, the Advisory Council of Jurists
of the Asia Pacific Forum of National Human Rights Institutions (‘ACJ’) has made
detailed recommendations as to what NHRIs could do in relation to violations of
human rights by corporations.50 The recommendations are specific to the following
core functions of the NHRIs: monitoring, education, advocacy, and complaint
handling. The NHRIs may, for example, see how violations of human rights by
corporations could be addressed through their existing functions; conduct a review
of relevant domestic legislation as well as grievance mechanisms; and monitor and
document corporate human rights violations.51 Recognizing the availability of
limited resources, the ACJ recommends that the NHRIs should give priority to,
among others: (i) state and public enterprises, and private enterprises performing
public functions; (ii) home corporations operating abroad in countries in conflict,
with weak governance or in free economic zones; and (iii) foreign corporations
operating domestically in free economic/export zones or conducting large-scale
development projects.52
In terms of their advocacy role, the ACJ suggested that the NHRIs may push
for the creation of laws that identify human rights obligations of corporations, the
recognition of corporate complicity and the exercise of extraterritorial jurisdiction
in appropriate cases.53 The NHRIs may also consider employing the complaint
mechanisms of corporations to monitor their conduct,54 and try to promote a
greater awareness about the impact of corporate activities on the realization of
human rights.55
Secondly, Professor John Ruggie, the SRSG in the April 2009 Report submitted
to the Human Rights Council mentioned that the NHRIs ‘are potentially important
venues for remedy at the national level’.56 At the same time, the SRSG acknow-
ledged the following: ‘While the mandate of some NHRIs may currently preclude
them from work on business and human rights, for many it may have been a
question of choice, tradition or capacity.’57 He hoped that more NHRIs ‘will reflect
49 National Institutions for the Promotion and Protection of Human Rights, GA Res. 63/172 (2009),
para. 12 (emphasis added).
50 Asia Pacific Forum of National Human Rights Institutions, ‘ACJ Reference on Human Rights,
Corporate Accountability and Government Responsibility’, 2008, available at: <http://www.
asiapacificforum.net/acj/references/corporate-accountability/downloads/ACJ_Report_
Corporate_Accountability.doc> (accessed 30 September 2010).
51 Ibid, p. 3.
52 Ibid, pp. 3–4.
53 Ibid, p. 4.
54 Ibid, p. 6.
55 Ibid, p. 5.
56 SRSG Report, op. cit. (note 18), para. 102.
57 Ibid, para. 103.
on ways they can address alleged human rights abuses involving business’.58 The
SRSG in his April 2010 report has recommended that governments reconsider this
limited role of NHRIs, for they could play an important role as a ‘state-based non-
judicial’ mechanism.59
Thirdly, in August 2009 a thematic Working Group on Business and Human
Rights was established under the International Coordinating Committee of
NHRIs.60 The Working Group was tasked with the responsibility of assisting
NHRIs in ‘promoting corporate respect and support for international human
rights principles’.61 The following areas have been identified for future collab-
oration amongst the NHRIs in the field of business and human rights: strategic
planning; capacity building and resource sharing; and agenda setting.62 The
Office of the High Commissioner for Human Rights has also picked up on this
development,63 and the 10th international conference of NHRIs adopted the
Edinburgh Declaration to affirm the role of NHRIs in this area.64
Fourthly, the ‘Human Rights Maturity Model’ developed by the Canadian
Human Rights Commission seeks to engage employers in integrating human rights
into all aspects of an organization.65 The model, which is based on the business
case for human rights, is used as a tool to prevent discrimination by following a
step-by-step process: leadership and accountability, capacity building and
resources, alignment of policies and processes, communication and consultation,
and evaluation for continuous improvement.66
A review of the Paris Principles and the other recommendations or developments
makes it clear that NHRIs offer a potential avenue to deal with situations of
corporate human rights abuses. Although they might not be able to resolve
successfully formal complaints against corporations in all cases, they could perhaps
facilitate mediation and conciliation between relevant parties.67 NHRIs could also
58 Ibid.
59 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises: Business and Human Rights: Further
Steps Toward the Operationalisation of the “Protect, Respect and Remedy” Framework, UN
Doc. A/HRC/14/27 (2010), para. 97.
60 The Human Rights and Business Project, ‘Working Group on Business and Human Rights’,
available at: <http://www.humanrightsbusiness.org/?f=nhri_owrking_group> (accessed 15 May
2010).
61 Ibid.
62 Ibid.
63 Report of the High Commissioner for Human Rights on her Office’s Consultation on
Operationalising the Framework for Business and Human Rights – Addendum, UN Doc.
A/HRC/14/29/Add.1 (2010), paras 26–33.
64 Available at: <http://www.ohchr.org/Documents/AboutUs/NHRI/Edinburgh_Declaration_
en.pdf> (accessed 21 March 2011).
65 Canadian Human Rights Commission, ‘Human Rights Maturity Model’, available at:
<http://www.chrc-ccdp.ca/hrmm_mmdp/default-en.asp> (accessed 16 May 2010).
66 Available at: <http://www.chrc-ccdp.ca/hrmm_mmdp/page1-en.asp#1> (accessed 16 May 2010).
67 See, eg, the role played by the Malaysian Human Rights Commission in protecting the land rights
of indigenous people against encroachment by logging companies: L. Thio, ‘Panacea, Placebo,
or Pawn? The Teething Problems of the Human Rights Commission of Malaysia (Suhakam)’,
George Washington International Law Review 40, 2009, p. 1271 at pp. 1324–8.
play an important role in creating awareness about the business and human rights
intersection, documenting alleged human rights violations, conducting research on
the nature and scope of relevant existing laws and remedies, providing training and
education to relevant stakeholders, assessing impact of corporate projects on the
realization of human rights, facilitating exchange of information through their
counterparts in other jurisdictions, and providing advice to the victims as to what
legal remedies could be pursued to seek justice.68 Furthermore, consistent with the
Nairobi Declaration, the NHRIs could form ‘strategic partnerships’ with civil
society organizations in promoting human rights.69
NHRC: the Indian experience

The NHRC in India was established, somewhat surprisingly, by an Ordinance
issued by the President in September 1993.70 The said Ordinance was soon
replaced by the Protection of Human Rights Act in 1993,71 which established the
NHRC and the State Human Rights Commissions in states. The Act has tried to
protect the independence of the NHRC by involving various parties in the
appointment process,72 securing the term of office,73 prescribing a cumbersome
process of removal74 and guaranteeing against any adverse change in salary or
other terms of service.75
The crucial issue for our purposes is to look at the scope of the NHRC’s powers
under the Act. Section 12 provides that the NHRC shall have the power to inquire
– suo motu76 or on a petition by a victim or on order of any court – into complaint
of violation of human rights, and to intervene in any proceeding involving any
allegation of violation of human rights pending before a court. The same provision
also empowers the NHRC to review the factors that inhibit the enjoyment of
human rights, recommend appropriate remedial measures, undertake and promote
research in the field of human rights, spread human rights literacy among various
sections of society, encourage the efforts of NGOs working in the field of human
68 See, generally, Ramcharan, op. cit. (note 45), pp. 392–4.

69 Ninth International Conference of National Institutions for the Promotion and Protection of
Human Rights, Nairobi , 21–24 October 2008, para. 28.
70 Human Rights Ordinance, No. 30 of 1993. See J. Malimath, ‘Report of the National Human Rights
Commission of India’, in K. Hossain et al (eds), Human Rights Commissions and Ombudsman Offices:
National Experiences throughout the World, The Hague: Kluwer Law International, 2002, p. 211.
71 Act No. 10 of 1994. The Act was amended by the Protection of Human Rights (Amendment) Act
2006, Act No. 43 of 2006.
72 Ibid, s. 4.
73 Ibid, s. 6.
74 Ibid, s. 5.
75 Ibid, s. 8. See also Malimath, op. cit. (note 70), pp. 215–16.
76 ‘Suo motu’ means acting on its own without any request made by others. See, for a recent instance
of suo motu action, NHRC, ‘NHRC Takes Suo Motu Cognizance of Media Reports on Striping
of a Woman at a Police Post’, 14 June 2010, available at: <http://nhrc.nic.in/dispArchive.
asp?fno=2063> (accessed 4 July 2010).
rights, and perform such other functions as it may consider necessary for the
protection of human rights.
Under the Act, the term ‘human rights’ means the rights relating to life, liberty,
equality and dignity of the individual (i) guaranteed by the Indian Constitution, or
(ii) embodied in the international conventions (ie the ICCPR, ICESCR and other
conventions which the government may specify) enforceable by courts in India.77
The Act prescribes a one-year limitation period for bringing complaints before the
NHRC,78 and it is pointed out that there is no provision that allows the NHRC to
entertain time-barred complaints.79
It can be said that the NHRC is not entrusted with the task of dealing with
corporate human rights abuses in an express or explicit manner. This is probably

what led Justice Malimath, a former member of the NHRC, to state categorically
that the NHRC ‘cannot entertain complains of violation of human rights against
non-state actors’.80 But this view does not sit well with the actual practice of the
NHRC’s operations. In the recent past, the NHRC has made interventions, for
example, in several cases involving the employment of bonded labourers by
companies81 and sexual harassment at the workplace. More recently, it suo motu
took cognizance of a case related to large-scale violence to protest against the
acquisition of land to establish a special economic zone (‘SEZ’) in Nandigram, West
Bengal.82 The following (quite far-reaching) observation of the NHRC highlights
the usefulness of its engagement in such cases:
Whether agricultural land should be acquired or not for industry or projects

like SEZ is a moot question. Agriculture being the only source of livelihood for the
farmers, compensation in terms of money for acquisition of their land may not be adequate.
In the process of rehabilitation of such displaced people as a result of
acquisition of land, the Government should take the local people into
confidence and it should also ensure alternative means of livelihood and shelter for the
displaced. Whether in addition to monetary compensation, any other land can
be given to relocate or can be linked to the project for which the land is
acquired by allocating adequate number of shares and providing employment to at least
one member of each affected family and similar other measures may be considered. The
77 Protection of Human Rights Act, op. cit. (note 71), (reading s. 2(d) with clause (f)).
78 Ibid, s. 36(2) provides that the NHRC ‘shall not inquire into any matter after the expiry of one
year from the date on which the act constituting violation of human rights is alleged to have been
committed’.
79 Malimath, op. cit. (note 70), p. 213.
80 Ibid.
81 Case No. 663/19/1999-2000; Case No. 513/7/1998-99; Case No. 22/212/96-LC (FC), available
at: <http://nhrc.nic.in> (accessed 15 September 2010).
82 Case No. 872/25/2006-07. NHRC, ‘Commission’s Order on Nandigram Issue’, 8 February 2008,
available at: <http://nhrc.nic.in/disparchive.asp?fno=1527> (accessed 15 May 2010); NHRC,
India, ‘13th Annual Meeting of APF’, available at: <http://nhrc.nic.in/disparchive.asp?fno
=1634> (accessed 23 November 2009).
agriculturists may not be in a position to appropriately or wisely invest the
money received by way of compensation. Necessary steps may have to be taken by
the Government to appoint advisors for making right investment.83
Although in the Nandigram instance, the above observations of the NHRC were
directed at the government and not the involved companies, these observations
would have indirect ramifications for companies wishing to acquire agricultural
land in the future for their industrial projects.
In addition to the actual practice highlighted above, there are also provisions in
the Act which the NHRC could potentially use to take cognizance of human rights
violations by non-state actors. For instance, NHRC may inquire into corporate
human rights abuses on the request of a court,84 or under its power to review factors
that might undermine the enjoyment of human rights. Of course, it could always
undertake research and take steps to spread human rights literacy in the area of
business and human rights. Moreover, the NHRC has the general residuary power
to do whatever is necessary to protect human rights. This could be quite a potent
power if one looks at it in the context of the liberal judicial interpretation of
fundamental rights in India.
Furthermore, an official of the NHRC recently pointed out that while dealing
with instances of corporate human rights abuses, the NHRC may ‘take up the
matter with concerned public authorities for enforcement’ and that in extreme
cases, it may also ‘take recourse to filing petitions in courts’.85 All these develop-
ments indicate that the reach and scope of the NHRC’s jurisdiction is not limited,
at least in practice, to dealing with human rights abuses by state agencies. It is fair
to note though that the NHRC has not yet been involved with all kinds of human
rights violations by companies.86
Several factors might have contributed to the NHRC’s willingness to get involved
in selected cases of corporate human rights abuses. First, it might be because all
the fundamental rights under the Indian Constitution are not tied to the state action
requirement. For example, the protection against human trafficking and forced
labour under article 23 could be availed even against a private person.87 Moreover,
as pointed out above, the protection of some rights has been extended against
private corporations by judicial interpretation, for example, the right against sexual
83 NHRC, op. cit. (note 82) (emphasis added).

84 The Supreme Court, for instance, had already requested the NHRC to monitor the
implementation of the Bonded Labour (Abolition) Act by its order in WP (Civil) No. 3922 of 1985.
85 NHRC-India, ‘UN Special Representative’s Visit to NHRC’, available at: <http://nhrc.nic.in/
disparchive.asp?fno=1750> (accessed 23 November 2009).
86 The NHRC is already concerned with the large number of complaints that it receives: Malimath,
op. cit. (note 70), p. 219. ‘No other national institution for human rights in the world has a remotely
comparable case-load’: V. Dayal, ‘Evolution of the National Human Rights Commission,
1993–2002: A Decennial Review’, Journal of the National Human Rights Commission 1, 2001, p. 40 at
p. 41, and generally pp. 49–50.
87 It is also arguable that the scope of prohibition of child labour under art. 24 is also not limited by
the state action requirement.
harassment. It thus has become easier for the NHRC to take up cases in which
companies or private persons are alleged to have abridged such fundamental rights.
The second variable is that the NHRC seems to take the colour of a generally
activist Indian judiciary that has expanded the frontiers of public interest
litigation.88 Although the NHRC is not part of the judiciary in the strict sense, it
consists of, among others, a former Chief Justice of the Supreme Court plus a few
other judges of the Supreme Court or High Courts. This composition ensures that
a major constituent of the NHRC inherits an activist mindset to redress, in
appropriate cases, injustices even by non-state actors. Moreover, in some cases the
Supreme Court has requested the NHRC to deal with matters involving human
rights violations by companies, for example monitoring the implementation of the

Bonded Labour System (Abolition) Act.89
Thirdly, as people in India generally trust higher judiciary and independent
institutions like the NHRC to deliver speedy justice, these institutions have come
to enjoy a social legitimacy which in turn allows them to act creatively and boldly
without much fear of a backlash from the other two government organs. This social
legitimacy is supplemented by increasing social expectation for the NHRC to act
to redress human rights abuses, especially because it costs almost nothing to
approach the NHRC.90
Conclusion
This chapter has attempted to show how the conventional state-centric human
rights framework is undergoing a change in recent years. It is a positive develop-
ment, for it is critical for the success of the human rights project that non-state
actors such as corporations are subjected to human rights obligations and that
various human rights enforcement mechanisms are harnessed to deal with human
rights abuses committed by these private actors.
Even NHRIs generally suffer from this state-centric bias in that they were not
designed to deal with human rights violations by corporations. However, a review
of the Paris Principles, some recent proposals and developments, and a limited
experience of the Indian NHRC shows that there are no serious legal or practical
obstacles in requiring NHRIs to deal with corporate human rights abuses. In fact,
88 See P. Bhagwati, ‘Judicial Activism and Public Interest Litigation’, Columbia Journal of Transnational
Law 23, 1984, p. 561; U. Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme
Court of India’, Third World Legal Studies 1985, p. 107; S. Sathe, Judicial Activism in India, New Delhi:
Oxford University Press, 2002; S. Deva, ‘Public Interest Litigation in India: A Critical Review’,
Civil Justice Quarterly 28, 2009, p. 19.
89 See Justice Anand, ‘Role of National Human Rights Institutions – Indian Experience’, Journal of
the National Human Rights Commission 4, 2005, pp. 56, 72. See also Justice S. Patil, ‘A Review of the
Achievement of the NHRC (1993–2006)’, Journal of the National Human Rights Commission 5, 2006,
p. 138 at pp. 146, 155.
90 Since there is no requirement to engage a lawyer or pay any fee, one may lodge a complaint to
the NHRC by simply filling in an online form. ‘Online Complaint Registration Form’, available
at: <http://164.100.51.57/HRComplaint/pub/NewHRComplaint.aspx> (accessed 4 July 2010).
they might have some advantages over traditional courts in view of their quasi-
judicial and pluralistic nature. NHRIs, for instance, could help in establishing a
dialogue between corporations, human rights victims, NGOs and governments.
They could also raise awareness about ‘human rights for business’, carry out
research and conduct independent human rights risk assessments of business
projects.
Nevertheless, it should be mentioned that NHRIs are presented here only as
part of a wider institutional framework to prevent and redress corporate human
rights abuses. NHRIs are not a panacea. They have experienced challenges in
achieving their goals,91 and they might struggle to engage companies in observing
human rights, for instance, in states that generally lack respect for human rights or
a robust institutional mechanism.92 Their success will also depend on whether
NHRIs are given a wide mandate, made independent, provided with adequate
financial resources and vested with adequate powers.93 But these challenges have
not stopped us from employing NHRIs in safeguarding human rights from actions
and inactions of state agencies. Nor should they in dealing with the conduct of non-
state actors.
91 See Hossain, et al. (eds), op. cit. (note 70); Ayeni, et al. (eds), op. cit. (note 36); C. Renshaw, A.
Byrnes and A. Durbach, ‘Implementing Human Rights in the Pacific through National Human
Rights Institutions: The Experience of Fiji’, Victoria University of Wellington Law Review 40, 2009, p.
251; Thio, op. cit. (note 67).
92 ‘In a country where human-rights violations are systemic rather than discrete, where state
institutions commit egregious human-rights violations through acts of commission or omission,
there is a limit to what an NHRI can accomplish’: Thio, op. cit. (note 67), p. 1277 (footnote
omitted).
93 K. Hossain, ‘Introduction’, in Hossain, et al. (eds), op. cit. (note 70), p. 1 at pp. 3–4.
13 Rethinking human rights
in China: towards a
receptor framework
Mimi Zou and Tom Zwart
Introduction
The year 2009 witnessed the historical formation of the ASEAN Intergovernmental
Commission on Human Rights (‘AICHR’). While this new human rights body has
not yet released its Rule of Procedure and Work Plan, its Terms of Reference
suggests that it will adopt a consensus-based and non-confrontational approach to
promoting and protecting human rights in the region.1 A key challenge facing the
AICHR is to develop an effective normative framework which will guide its
implementation activities.
The AICHR may be tempted to revisit the ‘Asian values’ doctrine, which was
promoted by the governments of numerous newly-industrializing ‘Asian Tigers’ in
the 1990s. Notable aspects of the doctrine pertaining to human rights include: the
right to self-determination; a non-interference policy; claims to cultural specificity;
and the prioritizing of economic development.2 The issuance of the 1993 Bangkok
Declaration on Human Rights, by increasingly assertive Asian governments,
emphasized ‘the significance of national and regional particularities and various
historical, cultural and religious backgrounds’.3 The Declaration represented a
serious challenge to the universality of human rights and criticized the international
human rights movement for being Western-biased.4
While the validity of the ‘Asian values’ doctrine has been questioned,5 the debate
is far from over.6 The development of a regional human rights body presents a
1 See Terms of Reference of ASEAN Intergovernmental Commission on Human Rights, para. 2.4,
available at: <http://www.aseansec.org/DOC-TOR-AHRB.pdf> (accessed 28 June 2010)
(‘AICHR Terms of Reference’).
2 L. Avonius and D. Kingsbury, Human Rights in Asia: A Reassessment of the Asian Values Debate, New
York: Palgrave Macmillan, 2008, pp. 3–4.
3 Report of the Regional Meeting for Asia, UN Doc. A/CONF.157/PC/59 (1993).
4 R. Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debates about “Values in
Asia”’, Indiana International and Comparative Law Review 14, 2002, p. 1.
5 See J. Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 2003,
pp. 107–23. The debate has now evolved to a more sophisticated title of ‘values in Asia’, with a
greater focus on the possibility of having Asian variations of human rights, instead of contesting
their compatibility or incompatibility with international human rights.
6 Peerenboom, op. cit. (note 4), p. 1.
fresh battleground where competing views are playing out. The AICHR’s Terms
of Reference refer to the need of ‘bearing in mind national and regional partic-
ularities and mutual respect for different historical, cultural and religious back-
grounds, and taking into account the balance between rights and responsibilities’,
as well as stressing ASEAN core principles of non-interference and state sover-
eignty.7 Some have argued that the AICHR should embrace a strong universalist
approach towards human rights.8
This chapter argues that the AICHR should move beyond the universalist/
relativist framework. This dichotomy continues to create problematic miscon-
ceptions of the relationship between local cultures and human rights, which is
subject to considerable political manipulation and obstructs real progress on the

ground. It is argued that the AICHR should make fresh start by developing a new
human rights framework that is constructive and meaningful to the people of the
region. This chapter outlines such an alternative approach in human rights policy
and practice that is based on the concept of local ‘receptors’. The receptor approach
seeks to identify means of protecting and promoting human rights that draw on
values, customs, practices and institutions of local societies.
This chapter briefly examines the problematic nature of the universalism/
relativism stalemate in the human rights debate. The case for an alternative
approach is put forward, and various approaches that seek to reconcile or transcend
the dichotomy are examined. It then sets up the theoretical framework of the
proposed receptor approach and analyses its key features. Finally, it lays out some
of the preliminary insights gained from the People’s Rights in China project, which
was set up in late 2009 as a research partnership between the Chinese Academy
of Social Sciences Institute of International Law, Shandong University Research
Center for Human Rights and the Netherlands School of Human Rights Research.
The aim of this project is to examine potential human rights receptors in Chinese
society.
Although China is not a member of ASEAN, it works closely with organizations
under the ‘ASEAN Plus Three’ umbrella. Importantly, the Chinese government
has been active in the political debate over ‘Asian values’. At the 1993 World
Conference on Human Rights in Vienna, the Chinese delegation played a leading
role in emphasizing regional differences and in ensuring that ‘the prescriptive
framework adopted in the declarations made room for regional diversity’.9 While
officially acknowledging the universality of human rights, the Chinese government
has, from its first Human Rights White Paper in 1991 to its inaugural National
7 AICHR Terms of Reference, op. cit. (note 1).

8 D. Desierto, ‘Universalizing Core Human Rights in the “New” ASEAN: A Reassessment of
Culture and Development Justifications against the Global Rejection of Impunity’, Göttingen Journal
of International Law 1, 2009, p. 77.
9 A. Sen (1997) ‘Human Rights and Asian Values’, Sixteenth Morgenthau Memorial Lecture on
Ethics & Foreign Policy, available at: <http://www.globalcitizen.net/Data/Pages/1613/Papers/
20090304171648705.pdf> (accessed 28 June 2010).
Rethinking human rights in China 251
Human Rights Action Plan in 2009, continued to stress its particular socio-
economic and historical circumstances. The receptor approach, as applied through
the People’s Rights in China project, will contribute some insights into the potential
development of a meaningful and effective normative framework for an Asia-Pacific
regional human rights body.
Lessons learned from the universalism/relativism

debate
Problems with the universalism/relativism framework

The universalism/relativism framework has created a problematic and misleading

conceptualization of the relationship between human rights and local culture. The
dichotomy seriously downplays and often ignores the elements in local cultures that
embody and promote human dignity as well as individual and collective wellbeing,
which have long existed as both philosophies and practices in different societies.
For instance, values and principles concerning self-fulfilment as well as respect for
others’ well-being can be found in Confucian, Buddhist or Islamic traditions.10 As
Legesse argues, ‘[d]ifferent societies formulate their conception of human rights in
diverse cultural idioms’.11
Challenging the framework is also important to counteract the assumption that
non-Western cultures are the beneficiaries of human rights knowledge whose
epicentre is in the West.12 Sociologist Anibal Quijana criticizes that the West’s
‘civilizing mission’, which has endured the life of direct colonial ruling, still feeds a
prevailing idea that the ‘global north’ is the creator of human rights and of their
respect and promotion, while the ‘global south’ is the prototype of a rights violator
because it is still trapped in pre-modernity thinking.13 This mentality perceives that
non-Western world, as the ‘other’, as incapable of creating knowledge that can
serve humanity. As such it curtails the opportunity to learn from the diversity and
richness of knowledge and practices of non-Western societies that could in fact
inspire the expansion of truly international human rights discourse.
This dichotomy is also problematic in its significant scope for political manip-
ulation. Critics have claimed that the universalist discourse ‘barely hides a Western
10 See J. Chan, ‘A Confucian Perspective on Human Rights for Contemporary China’, in J. Bauer
and D. Bell (eds), The East Asian Challenge for Human Rights, Cambridge: Cambridge University
Press, 1999, p. 212; A. Aziz Said, Human Rights and World Order, New Brunswick: Transaction
Books, 1979.
11 A. Legesse, ‘Human Rights in African Political Culture’ in K. Thompson (ed.), The Moral Imperatives
of Human Rights: A World Survey, Washington D.C.: University Press of America, 1980, pp. 123–4.
12 E. Martinez-Salazar, ‘Rethinking Human Rights in a World of Increased Inequalities’, Ryuichi
Sasakawa Young Leaders Fellowship Fund Asia/Pacific Regional Forum, Keynote Address, 2009,
available at: <http://www.sylff.org/category/Prize%20Award/page/4/> (accessed 28 March
2010).
13 A. Quijano, ‘Coloniality of Power, Eurocentrism, and Latin America’, Nepantla: Views from South
3, 2000, p. 533.
attempt to give a moral legitimization to an economic agenda’,14 or is used to justify
so-called ‘humanitarian interventions’ through military action.15 On the other
hand, regimes that are engaged in serious violations of human rights of their own
people may try to hide behind the veil of cultural relativism. In reality, the practices
of such repressive regimes have nothing to do with local or indigenous cultures.16
The many problems with the longstanding dichotomy have led to the develop-
ment of alternative approaches that recognize that universal human rights can be
promoted in diverse cultural contexts.
Literature review of alternative approaches

Numerous scholars have sought to accommodate universal human rights with local
cultural sensitivities.17 Abdullahi An-Na’im has advanced the idea of ‘cultural
reinterpretation and reconstruction through internal cultural discourse and cross-
cultural dialogue’ for strengthening the universal legitimacy of human rights.18 Jack
Donnelly maintains that international human rights standards can be legitimately
applied to non-Western societies, proposing a ‘relative universality of human
rights’.19 Alison Renteln puts forward the idea of finding ‘cross-cultural universals’,
using empirical data to show the possibility of creating structural equivalents to
rights in all cultures, thus allowing for both relativism and universality of human
rights.20
While there has been theoretical breakthrough in transcending the universalism-
relativism dichotomy, this has not been matched by equal success in the practice
of contextualizing human rights standards. A few noteworthy attempts have been
made, including the work of Sally Engle Merry. In her book Human Rights and Gender
Violence: Translating International Law into Local Justice, Merry pictures the dilemma
facing those who try to promote human rights and combat gender violence.21 She
argues that certain traditional values and practices underlie such violence against
14 S. Clavier, ‘Human Rights and the Debate between Universalism & Cultural Relativism’, San
Francisco State University, 2003, available at: <http://userwww.sfsu.edu/~sclavier/research/
hrdebate.pdf> (accessed 28 March 2010).
15 F. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, The Hague: Kluwer
Law International, 1999.
16 Donnelly, op. cit. (note 5), pp. 87, 100.
17 See J. Cowan, M. Dembour and Richard Wilson (eds), Culture and Right: Anthropological Persectives,
Cambridge: Cambridge University Press, 2001; A. An-Na’im (ed.), Cultural Transformation and
Human Rights in Africa, London: Zed Books, 2002.
18 A. An-Na’im (ed.), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, Philadelphia:
University of Pennsylvania Press, 1992, 3–5. See also An-Na’im (ed.), op. cit. (note 17).
19 See J. Donnelly, ‘The Relative Universality of Human Rights’, Human Rights Quarterly 29, 2007,
p. 281.
20 A. Renteln, International Human Rights: Universalism Versus Relativism, Newbury Park, California: Sage
Publications, 1990.
21 S. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice, Chicago:
University of Chicago Press, 2005.
women, which should be changed without undermining local culture. Merry seeks
to promote a third way to overcome the tension between the desire to maintain
cultural diversity and to promote rights universally.22 She rejects the portrayal of
the global-local divide as the opposition between rights and culture, or even
civilization and culture. Instead of perceiving universalism and cultural relativism
as dichotomous, she argues that the tension between the positions should be seen
as part of the continuous process of negotiating ever-changing and interrelated
global and local norms. The alternative is to appropriate and remake human
rights ideas into the ‘vernacular’, that is, to translate them into local terms.23 This
translation takes place as part of an exchange between transnational actors and
activists working within local contexts, with NGOs and social movements acting
as intermediaries.24 In this way global human rights law becomes an important
resource for local social movements.
Other alternative approaches have sought to bypass the universalism/relativism
debate altogether by focusing on the practical implications of human rights
implementation in local communities. An example of this is the ‘capabilities theory
and pragmatism’ proposed by Erika R. George. George seeks to recast a ‘divisive
debate where gender equality appears to clash with cultural autonomy’ into a
discussion of how to advance a right to health and adapt culture to promote both
health and gender empowerment.25 George proposes the use of pragmatism, which
she defines as observing and then seeking to promote whatever works in practice
and which will promote ‘people to leave aside normative disputes to engage in the
common pursuit of practical results’.26 Similar to other approaches which present
examples of how local organizations deal with human rights in practice, George
does not attempt to conceptualize a more comprehensive theoretical framework.
It is clear that a variety of scholars and practitioners have paid attention to the
adoption and application of human rights in the local cultural setting. However,
there have been limited attempts at developing a more comprehensive framework
with theoretical and empirical groundings to explain the relationship between
human rights and local culture and to move beyond the universalism/relativism
dichotomy. The proposed receptor approach seeks to address this gap among
existing proposals that support the legitimate and effective realization of human
rights in diverse cultural contexts.
22 Ibid, p. 131.
23 Ibid, p. 1.
24 Ibid, pp. 1–2.
25 E. George, ‘Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights Universalism
and Cultural Relativism toward Health Capabilities’, California Law Review 96, 2008, p. 1447 at
p. 1486.
26 Ibid, p. 1494.
The receptor approach to human rights
Background
The proposed receptor approach owes its name and concept to a phenomenon in
biomedicine.27 The cells in our bodies are exposed to numerous external signals.
Each cell is open to some signal but not others. Receptors are molecules within the
cell which can receive such signals. These signals are triggered by other molecules
known as ligands. A ligand must match a receptor of the cell in order to bind the
cell. The strength of binding between the ligand and receptor is known as affinity,
which can be high or low.28 The interaction between the ligand and receptor alters
both the signal and shape of the receptor, and activates changes in the function of
the cell. This action within the cell in turn can initiate changes in body function,
like pain perception, internal temperature and blood pressure.29
Drawing insights from this concept, a particular human right will only have an
effect within a culture if it can bind to it, which requires the presence of suitable
receptors within the society. If no such receptor can be found, that specific human
right may struggle to bind to that culture at that point in time. If a compatible
receptor is present, its interaction with that specific right can trigger a response
within that culture. An in-depth and thorough search for receptors in local societies,
in combination with the fine-tuning of international human rights principles to
increase their ‘affinity’, is likely to reap results.
Transcending universalism and relativism

According to Sally Falk Moore, social fields can be divided into three ideal types.
They may either be: (a) completely autonomous – governed by norms which have
been developed ‘bottom-up’ within the field by its members; (b) completely
dominated – subject to rules which have been laid down ‘top-down’ by an external
authority like the legislature; or (c) semi-autonomous, which is a mixture of both.30
Insights from Moore’s theory can help to highlight how the receptor approach seeks
to transcend the universalist/relativist framework.
Universalist approaches assume that if a state is bound by a particular human
rights norm, that norm must become part of its social arrangements, if need be, by
replacing or amending that society’s existing norms.31 States can and should adjust
to international human rights norms, as interpreted by international bodies,
27 H. Gilbert, Basic Concepts in Biochemistry, New York: McGraw-Hill, 2000, pp. 123–6.
28 W. Foye, T. Lemke and D. Williams, Foye’s Principles of Medicinal Chemistry, Baltimore: Lippincott
Williams Wilkins, 2007, pp. 85–98.
29 Ibid, pp. 90–6.
30 S. Moore, Law as Process: An Anthropological Approach, London: Oxford University Press, 1978, p.
78.
31 L. Henkin, ‘The Universality of the Concept of Human Rights’, The ANNALS of the American Academy
of Political and Social Science 506(1), 1989, p. 10 at pp. 10–16.
if necessary with the help of national rule makers. Underlying universalist
approaches, therefore, are a strong belief in social engineering through lawmaking.
This means that universalism regards social fields as being ‘completely dominated’.
Cultural relativists, on the other hand, will argue that it is neither desirable nor
possible to change existing norms, practices and arrangements within every society
to conform to international human rights.32 National legal systems are seen as
autonomous social fields that are determined by internal values and norms which
cannot be replaced at will by external rule makers. International human rights are
relevant only insofar as they overlap with the social arrangements which are already
in place. They may sometimes encourage changes to the existing social framework,
but such arrangements should not be changed through the law. The imple-
mentation of human rights is seen as a one-way process, which depends on the
willingness of a particular society to open itself up to international human rights
norms.
Like Moore, the receptor approach regards social fields as being semi-autonomous.
Consequently, international human rights norms, while not capable of entirely
replacing existing social arrangements, can add to those if they are properly identified.
When international human rights are being tied into existing social values and
practices in this way, they are more likely to become part of local reality. This
approach, therefore, relies heavily on anthropological and sociological insights to
identify the social arrangements at the local level to which the international human
rights norms can be linked.
Going beyond normative assumptions which underlie the universalism–
relativism positions, the receptor approach to protecting and promoting human
rights is based on substantive empirical research. It embraces neither top-down
social engineering nor the maintaining of the status quo. Instead, it argues that
international human rights can become part of local reality when matched with
local receptors. The receptor approach regards the implementation of international
human rights as a two-way dialogue between the international community and
local societies.
The potential contribution of the receptor approach to promoting international
human rights in local societies can best be illustrated with the help of an example,
the Bhe case,33 which was decided in 2004 by the Constitutional Court of South
Africa. In 2002 Mrs Bhe’s husband died. Since they had been married under Xhosa
customary law, the inheritance was subject to the principle of primogeniture. This
meant that the deceased’s material goods, including the property where he and
Mrs Bhe had lived, were inherited by his brother. Mrs Bhe, who was left empty-
handed, challenged this unsatisfactory outcome all the way up to the highest court.
The Court concluded that the principle of primogeniture discriminated against
women and struck down the contested customary law provisions as being contrary
32 Renteln, op. cit. (note 20), pp. 61–87.

33 Bhe v Magistrate Khayelitsha & Ors, 2005 (1) BCLR 1 (CC), 15 October 2004 (Constitutional Court
of South Africa).
to the equal protection clause in the South African Constitution. By way of relief,
the Court decided that state inheritance law should replace the customary
provisions that had been struck down, until Parliament had an opportunity to
legislate on the matter.
From a more ‘universalist’ perspective, Bhe was a favourable decision which
promoted a woman’s right to property and that customary law inconsistent with
this right should be changed accordingly. If the Court had chosen a more ‘relativist’
approach, it would have left intact the customary law, and the traditional way
of life and social organization in rural South Africa, which the customary law
supported. The third option would have been to apply the receptor approach by
understanding the social reality on the ground and by adding to it. By doing so,
the Court would have found that the concept of property rights is alien to traditional
South African culture. Land is owned collectively by the tribe and allocated to
families. So the husband is not the individual owner of the land, but the steward
acting in the interest of his family and the tribe as a whole, rather than in his own
individual interest.34 This stewardship is governed by the concept of ‘Ubuntu’, which
promotes generosity towards one’s kinfolk and other members of the community.35
The Constitutional Court could have applied the receptor approach to recognize
that a cultural precedent could have been used for this purpose: even though a
widow could not inherit under customary law, she would act as the co-administrator
of the estate, together with the male relative who took over stewardship from the
deceased. The Court could therefore have introduced joint management of the
estate to be exercised by husband and wife.
The fact that the receptor approach builds on existing social values and practices
rather than replacing them overnight, will not by itself lead to radical reform of
local societies. However it ensures that human rights are embedded in the local
society, which will strengthen support for them. Furthermore, the receptor
approach will not only link international human rights instruments to local cul-
tures, but also lead to the identification of specific aspects of local societies, like
Confucianism and Ubuntu, which can be tapped into to enrich the international
human rights discourse – resulting in a more inclusive and truly universal move-
ment. The AICHR can clearly contribute to the development of such a movement
through the opportunity of the ASEAN Human Rights Declaration, a responsibility
which was entrusted to it in its Terms of Reference.
At first sight, the receptor approach may look similar to the ‘vernacular’ concept
developed by Merry, but in fact there are key differences. While Merry promotes
the translation of global human rights ideas into local language, she does not favour
their transformation. She argues that international human rights must be translated
to resonate with the local cultural framework, but these rights should retain their
core emphasis on individualism, secularism, autonomy, choice, bodily integrity and
34 C. Dlamini, ‘The Role of Customary Law in Meeting Social Needs’, Acta Juridica 71, 1991,
pp. 82–3.
35 See S v Makwanyane 1995 (3) SA 391 (CC) par 308 (Mokgoro J.).
equality.36 Merry’s approach advocates for the global production and local
appropriation of human rights.37 Global human rights concepts may replace
alternative domestic frameworks of social justice.38 Merry further claims that
human rights movements do not require the adoption of a human rights
consciousness by individuals at the grassroots.39 In effect, Merry’s approach remains
within a universalist framework – it relies on local ‘translators’ who must ‘refashion
rights principles and activities’.40 Local culture will only serve as a ‘repackaging’ of
international human rights, which will otherwise remain undiluted.
Researching receptors
All types of norms, values, concepts, customs and practices may serve as a receptor
for human rights, regardless of whether or not it directly relates to human rights.
Accordingly, the receptors framework is results-oriented, with the aim of ensuring
that human rights are embedded and not forced on the society. The receptor
approach assumes a responsive framework that shows respect for local cultures.
Understanding the ways in which local societies promote and protect the well-being
of their people allows us to find matching receptors within that society which
human rights could bind to and generate a positive response in that society.
A key challenge of this approach is to identify the receptors for human rights
within a society. In a complex and rapidly transforming society, like that of China,
culture may be in a state of flux – the substance of which is often difficult to identify
with specificity and precision.41 Norms, concepts, values and practices, once
identified as receptors, may be in the process of adaption to a changing environ-
ment. Therefore, the receptor approach requires working closely with local experts
who have on-the-ground knowledge of the values and practices of contemporary
Chinese society.
Once potential receptors are found, the next step is to analyse the ‘binding’
relationship between receptors and human rights in greater detail. To ascertain
the relevant human rights, key international conventions can be used as a reference
point but should not be determinative of the substance or form of matching
receptors. Subsequently, researchers can further identify laws, policies, programmes
and institutions in that society which could draw on these receptors, either directly
or indirectly.
36 Merry, op. cit. (note 21), pp. 220–1.

37 Ibid, p. 6.
38 Ibid, p. 4.
39 Ibid, p. 215.
40 M. Goodale and S. Merry (eds), The Practice of Human Rights: Tracking Law between the Global and the
Local, Cambridge, Cambridge University Press, 2007, pp. 39–40.
41 L. Bell, A. Nathan and I. Peleg, Negotiating Culture and Human Rights, New York: Columbia
University Press, 2001, pp. 3–21.
Potential risks
Applying the receptor approach to a country like China will not be a simple,
straightforward task. Beyond the challenge of identifying receptors in a highly
complex society in the midst of transformation, this approach may run into some
potential risks. First, framing human rights in a way that is resonant in local contexts
may limit the potential for meaningful change when such discourses legitimize and
reinforce local power structures.42 Definitions of local culture are likely to be shaped
by those in positions of power, who may manipulate such definitions in accordance
with their own interests, to the detriment of others’ interests and rights. This
is particularly risky in societies where power is held in the hands of an elite few,
and where open engagement in civil society is limited. In order to overcome the
potential obstacle of ‘cultural gatekeepers’, the receptor approach needs to ensure
that on-the-ground collaboration and consultation with local experts are carefully
conducted and that the values, beliefs and practices of local communities (as distinct
from those in power) are properly identified.
Secondly, the receptor approach may limit local people’s awareness of and access
to other ways of conceptualizing certain rights from outside their society. This is
because the proposed approach suggests that if receptors are completely absent in
that society for a certain right, it is perhaps necessary to leave that category for the
time being and focus on other rights. It may also minimize the scope for challenging
particular local values and practices that run against human rights. However, the
receptor approach perceives culture as a dynamic phenomenon. It seeks to identify
receptors which already promote human rights and dignity in the local culture –
laying the seeds for raising the rights consciousness of those in the society. As these
receptors interact with human rights to trigger a response within that culture, values
and practices are unlikely to remain static. The receptor approach’s focus on a two-
way dialogue between the local society and those from outside the society also helps
to overcome these potential risks. Where receptors for a particular right are com-
pletely lacking in a society, the empirical research conducted to reach this conclu-
sion can assist human rights proponents who would like to see the introduction of
such a right.
Applying the receptor approach to human rights in

China
A proper understanding of the diversity and plurality of China’s unique socio-
political, religious, cultural and historical conditions is necessary to dispel general
misconceptions of Chinese culture as communitarian and authoritarian and thus
foreign to individual freedoms and rights. China has been the site of a rich discourse
on rights – ever since the term ‘rights’ began to be translated into the Chinese term
quanli.43 Daniel A. Bell has emphasized that ‘respectful solutions’ can always be
42 Merry, op. cit. (note 21), p. 41.

43 D. Bell, Beyond Liberal Democracy: Political Thinking for an East Asian Context, Princeton: Princeton
found in local culture. It is possible to find Confucian elements in Chinese society
that would denounce certain human rights violations.44 Joseph Chan sees
Confucianism as complementing human rights with its theory of virtues, and that
rights should only be in place when the rule of virtues fails.45 Xia Yong advocates
for the compatibility and cross-promotion of the Chinese concept of harmony with
human rights.46
There is a range of potential human rights receptors that can be found in Chinese
culture and society. For example, the traditional principle of benevolence (ren)
expresses the value of impartial concern to relieve human suffering.47 Equivalents
of some social and economic rights can be drawn from the classical Confucian
emphasis on the primary obligation of a government to feed its people48 – a norm

that was often put into practice in imperial China and is still highly relevant today
from the perspective of Chinese leaders. The Confucian emphasis on education
for the purpose of bringing out the inherent potential in each human being is also
highly compatible with promoting the right to education.49
While recognizing Confucianism is not the only source of tradition in Chinese
society, the focus of this chapter on Confucianism is influenced by two con-
siderations. First, when the Chinese rights discourse began to develop in the late
19th century, it was influenced by the neo-Confucian tradition.50 Secondly,
Confucian values have figured importantly in the Asian values debate, and they
form a key part of the Chinese government’s rhetoric51 as well as domestic Chinese
intellectual discussions in recent years.52
Understanding Confucianism in China

Despite a period of reaction against Confucianism in 20th-century China,
particularly during the Cultural Revolution, its influence is still rooted in the
44 D. Bell, East Meets West: Human Rights and Democracy in East Asia, Princeton: Princeton University
Press, 2000.
45 Chan, op. cit. (note 10), p. 212.
46 Xia Y., ‘Human Rights and the Chinese Tradition’, in S. Angle and M. Svensson (eds), The Chinese
Human Rights Reader: Documents and Commentary: 1900–2000, New York: M. E. Sharpe, 2001, p. 372.
47 Chan, op. cit. (note 10), p. 218.
48 J. Chan, ‘Giving Priority to the Worst-off: A Confucian Perspective on Social Welfare’, in D. Bell
and H. Chaibong (eds), Confucianism for the Modern World, Cambridge: Cambridge University Press,
2003, p. 241.
49 A. Chen, ‘Chinese Cultural Tradition and Modern Human Rights’, Perspectives 1, 1997, available
at: <http://www.singaporewindow.org/aihk1202.hftm.> (accessed 28 March 2010).
50 See S. Angle, Human Rights and Chinese Thought: A Cross-cultural Inquiry, Cambridge: Cambridge
University Press, 2002, pp. 20–1.
51 See, eg, Sixth Session of the 16th Central Committee of the Chinese Communist Party, ‘The
Resolution of the Main Aspects of the Construction of a Harmonious Socialist Society’, 2006,
available at: <http//www.gov.cn/gongbao/content/2006/content_453176.htm> (accessed 28
June 2010).
52 See, eg, W. de Bary and T. Weiming (eds), Confucianism and Human Rights, New York: Columbia
University Press, 1998; Angle, op. cit. (note 50); Bell, et al., op. cit. (note 41); Xia, op. cit. (note 46).
amalgam of residual ethical beliefs and practices of modern Chinese society and
culture – underlying people’s general attitudes, for instance, towards family,
education and responsibility to others in society.53 Furthermore, the Confucian
preference for order and stability has been deployed by the current Chinese leaders.
A revival of Confucian thinking is largely behind President Hu Jintao’s advocacy
of ‘building a harmonious society’ (hexie shehui).
Like many other schools of thought, Confucianism is a contested philosophy
which includes teachings that stress loyalty and filial duty, as well as the importance
of mutual respect and moral righteousness. The Confucian code of virtues
recognized the individual’s right to personal dignity and worth, but this right had
to be acquired ‘by his living up to the code’.54 Leading Chinese human rights
scholar Xia Yong argues that under Confucian tradition, ‘humanism is practiced
and great harmony pursued not by means of emphasizing the rights of individuals
but through their duties, and not by means of emphasizing the rule of law but
through the rule of virtue’.55
Under Confucianism, the government’s role was to pursue a moral agenda of
virtues, which give rise to a natural order of social harmony. Good governance was
a matter of possessing virtue (de) and setting a moral example for people to follow
through the educational function of morality (li), without recourse to physical force.
The concept of a ruler’s ‘mandate of heaven’ regarded political power as a heavenly
grant to ensure order, harmony and prosperity among subjects. The mutual
dependency of the ruler and his subjects meant that the latter owed allegiance to
the former, but at the same time, rulers who neglected their people’s welfare and
turned to despotism would lose the mandate of heaven and could be justly
overthrown – in fact widespread resistance was evidence that the ruler had lost his
mandate.56 The ethics of benevolent rule governed the ruler’s relations with his
subject.57
While this conception of the ruler-subject relationship favoured rule by (virtuous)
men as opposed to the rule of law, rulers did not have a licence for the exercise of
arbitrary power. If they failed in properly carrying out their duties, Confucian civil
servants, as the authorized representatives of society, were bound by a duty to
criticize the ruler. In the Confucian political tradition, scholar and emperor are
bound together in a relationship of filial piety. Criticism by the former is a strict
duty, to ensure the good governance of the latter. However, this concept is not the
same as a democratic right of an individual citizen under Western liberal political
53 R. Mitter, ‘Confucius Rising’, China Review 41, 2007, p. 1.

54 H.-C. Tai, ‘Human Rights in Taiwan: Convergence of Two Political Cultures?’, in J. Hsiung (ed.),
Human Rights in an East Asian Perspective, New York: Paragon House Publishers, 1985, p. 88.
55 Xia, op. cit. (note 46), p. 376.
56 The Mandate of Heaven concept was developed by Mencius, stressing the obligations of the ruler
as much as those of subject. The subjects’ duty of loyalty was discharged where the ruler no longer
behaved as a ruler should, but had turned into an oppressive tyrant. See Geoffrey MacCormack,
The Spirit of Traditional Chinese Law, Athens: University of Georgia Press, 1996, p. 108.
57 Chen, op. cit. (note 49).
tradition. Rather, it is a responsibility incumbent on those who uphold the structure
of government and whose criticisms are directed at ensuring its proper functioning.
Thus, an action which fits readily into democratic liberal practice, as it is under-
stood in the West, is actually framed in a different light in Confucianism.58
Over the centuries, Chinese rulers have been guided by traditional principles of
benevolent governance and the moral obligations of rulers under Confucian ethics.
The resurgence of Confucianism in China, promoted by the current leadership,
may offer a timely opportunity for re-tapping into these principles. For example,
there is an expanding body of administrative law that in effect enhances citizens’
rights in many areas. President Hu Jintao has linked the idea of ‘administration
according to law’ (yifa xingzhen) to the goal of ‘strengthening and improving Party
leadership’,59 drawing on good governance principles to respond to the need of
establishing a stable social order in the context of rapid economic and social
development, so as to support the party-state’s ‘mandate of heaven’.
Xia Yong has made invaluable insights into how good governance principles in
Chinese political tradition can support the development of civil rights in China.
Drawing on the Confucian concept of minben (‘people as the root of a nation’), he
advocates a doctrine which states that ‘the people are the root of the nation, rights
are the root of the people, and virtue is the root of rights’, so as to support a
framework of civil rights – minquan – in contemporary China.60
Identifying policies and laws which may draw on cultural

receptors
One area where receptors in Chinese political philosophy, as described above, can
be tapped into is in the development of administrative law. Confucian principles
of good governance have underpinned the development of administrative institu-
tions, norms and practices over much of China’s history in response to the need to
govern and manage such a large nation facing many challenges. The Chinese
government today has also drawn on these principles as the source of increasing
checks on administrative authorities and officials. The concept of ‘administration
in accordance with the law’ provides a potentially powerful basis for protecting
and strengthening citizens’ rights.61 In addition, the Chinese government has
endorsed and pushed for a moral campaign addressed to government officials that
58 C. Khong, ‘Asian Values: The Debate Revisited’, Proceedings of Asian Values and Democracy
in Asia Conference, 1997, available at: <http://www.unu.edu/unupress/asian-values.html>
(accessed 28 March 2010).
59 W. Lam, Chinese Politics in the Hu Jintao Era: New Leaders, New Challenges, Armonk, New York:
M.E. Sharp, 2006, p. 118.
60 Xia Y., The Philosophy of Civil Rights in the Context of China [Zhongguo min quan zhe xue], Beijing:
San Lian Shu Dian, 2004.
61 R. Peerenboom, ‘More Law, Less Courts, Judicialization and Dejudicialization in China’, in
T. Ginsburg and A. Chen (eds), Administrative Law and Governance in Asia: Comparative Perspectives,
London: Routledge, 2008, p. 175 at p. 177.
emphasizes the rule of virtue (dezhi) alongside the rule of law. With its Confucian
overtones, this campaign is an attempt to combat corruption among public officials
by tapping into traditional values that stress a ruler’s moral character.62
Furthermore, the Chinese government’s ‘harmonious society’ mandate may
become a potential receptor to improve governance and strengthen institutions for
resolving social conflicts, including a greater role for public participation in
legislative processes. An example is the enactment of the Labour Contracts Law
2007 which enhanced protection and rights for workers. The law was introduced
largely in response to escalating labour disputes which presented risks to social
harmony and thus the government’s political legitimacy.63 The legislative drafting
process was also the first of its kind in that the government actively sought public
input – over 200,000 submissions were received from individuals, businesses,
government agencies and non-government organizations. The legislation under-
went several drafts over four years of deliberation in order to balance the varied,
competing interests.64 The government’s mandate of social harmony can in fact
act as an effective receptor to protect and advance the rights of various dis-
advantaged groups.
Another example is the promotion of the right to a fair trial.65 A local receptor
that may contribute to this goal is the value traditionally placed on judicial
independence. The concept of qingguan (‘pure official’) refers to the legendary judges
in Chinese history and culture who exemplified moral fortitude and justice.66 The
most famous of them was Bao Zheng of the Song Dynasty, who was revered for
his intolerance of corruption and injustice. He was often referred to as qingtian (‘blue
sky’), denoting his heavenly integrity that enabled him to rectify all grievances and
injustices suffered by the people. Bao is still commonly invoked today in popular
culture and media as the symbol of justice in Chinese society. In light of growing
public dissatisfaction with the courts’ inability to secure fairness and justice, judicial
reform has become a pressing issue for Chinese leaders. In a major speech in late
2008, President Hu Jintao called for deeper reforms that would increase the
competence, independence and authority of the courts.67 The Supreme People’s
Court has devised Five-Year Reform Plans to tackle the various challenges to
62 R. Peerenboom, China’s Long March Towards Rule of Law, Cambridge: Cambridge University Press,
2002, p. 237.
63 H. Josephs, ‘Measuring Progress under China’s Labour Law: Goals, Processes, Outcomes’,
Comparative Labour Law & Policy Journal 30, 2009, p. 373.
64 Chen, op. cit. (note 49).
65 Universal Declaration of Human Rights, GA Res. 217A (III) (1948). Article 10 of the Declaration
states, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal charge
against him’.
66 D. Dien, The Chinese Worldview Regarding Justice and the Supernatural: The Cultural and Historical Roots
of Rule by Law, New York: Nova Science Publishers, 2006, pp. 54–9.
67 Xinhua News, ‘Highlights of President Hu’s Speech at Reform Eulogy Meeting’, 18 December
2008, available at: <http://news.xinhuanet.com/english/2008-12/18/content_10525417.htm>
(accessed 28 March 2010).
judicial independence and impartiality. By targeting reforms in this area, it has
been recognized that a judicial system, which upholds the right to a fair and just
hearing could be attained from a highly-educated and well-trained judiciary,
characterized by high moral integrity.68 Increasing judicial incorruptibility and
independence, a receptor that is already embedded in Chinese society, can help to
address current problems relating to fair trials.
Conclusion
There is much potential in applying the receptor approach to develop a new
normative framework for the AICHR, through recognizing that the protection and
promotion of human rights is most effective in ways that build on local traditions,
values, norms and practices. This is illustrated in the case of the People’s Republic
of China, where improvements in human rights policy and practice may be
promoted more effectively through identifying local receptors within Chinese
society, such as traditional principles of good governance and minben. Through
identifying a range of receptors in countries across the region, this approach is more
likely to strengthen local commitment to international human rights, instead of
coercing and imposing external norms onto a community or rejecting human rights
because they are supposedly incompatible with local culture. It is time to move
beyond the heavily politicized debate over ‘Asian values’. With human rights now
having some kind of institutional regional legitimacy through the AICHR, this may
be the golden opportunity.
68 Q. Zhang, ‘The People’s Court in Transition: The Prospects of the Chinese Judicial Reform’,
13 December 2006, available at: <http://www.tecn.cn/data/detail.php?id=12197> (accessed
28 March 2010).
Index
aboriginal peoples see indigenous Asian Human Rights Charter:

populations sub-regional institutions 5
Africa: human rights 113–14, 121–2 Asian Network of National Institutions for
Alston, Philip 189 the Promotion and Protection of
An-Na’im, Abdullahi 252 Human Rights (ANNI): network
Ando, Nisuke 9, 37–48 accountability 197–9; objectives
Annan, Kofi 49 190–1; regional cooperation 38;
Arab Charter on Human Rights (2004) see also networks
107, 114, 203 Asian values: ASEAN Way 130, 131, 165,
ASEAN: ASEAN Way 130, 131, 165, 169–70, 181; Asian Tigers 249;
169–70, 181; Forum on Labour consensus 169; debate 2–3, 19, 134;
Migration 11; human rights western standards compared 112–16
mechanisms 168–74 Australia: sexual orientation 42–3
ASEAN Charter (2007): adoption 4–5;
terms of reference 128–9 Baghoomians, Irene 11, 107–26
ASEAN Commission on the Promotion Bangkok Declarations 3, 19, 117, 155–8,
and Protection of the Rights of 249
Women and Children (ACWC): Bennett, Richard 209–10
human rights monitoring 5, 11–12,
165–8 Canada: indigenous populations 45–6
ASEAN Intergovernmental Commission Carver, R. 199–200
on Human Rights (AICHR): Asian Cha-Am Hua Hin Declaration 129, 135
values 249–50; background 127–8; Chang Peng-Chun 19
dynamics 136–41; establishment 4–5, children: ACWC 5, 11–12; Convention
11, 19; mandate 128–36; mechanism on the Rights of the Child (CRC) 93;
127–43, 172–4 detention conditions 25; exploitation
ASEAN Migrant Workers (TF–AMW) 30–1; protection of rights 166–8
11, 162–3 China: alternative realities 98–100;
ASEAN Working Group for an ASEAN background 87–8, 249–51; Committee
Human Rights Mechanism against torture 101–3; Confuscianism
(MARUAH): engagement/persuasion 37, 137, 251, 256, 259–62; domestic
141–3; regional mechanism 11, application 95–6; human rights
136–41 monitoring 10, 13, 87–104;
Asia Pacific Forum of National Human independent monitoring 97–8;
Rights Institutions (APF): Advisory international human rights law 89–92;
Council of Jurists (ACJ) 195, 204–5, legal framework 92–4; normative
207, 242; human rights monitoring 6, acceptance 90; objectivity 92;
12; regional cooperation 38, 185–208; politicized application 92; principled
role 193–7 sovereignty 87–104; progressive
Index 265
development 91–2; receptor European Union (EU): regional
framework 249–63; reporting practice integration 7
92–103; reservations/declarations extrajudicial killings: ICCPR 27
96–7; slow appreciation 87–104;
Universal Periodic Review (UPR) Frost, E. 1–2
54–6, 90–1; universalism/relativism
251–3 George, Erika R. 253
Chou Enlai 19
Confuscianism 37, 137, 251, 256, 259–62 Hart, Naomi 9, 17–36
Convention against Torture: OPCAT Hatoyama, Yukio 1, 2
(2006) see Optional Protocol to the Hu Jintao 261, 262
Convention against Torture human rights: Africa 113–14, 121–2;
Convention on the Elimination of All implemented see implementation; legal

Forms of Discrimination against literature 7–8; receptor approach
Women (CEDAW) 93, 139, 160, 254–63; regional cooperation 107–26;
162–3, 170–1, 174, 177–8, 180 treaties 65–7
Convention on the Rights of Persons human rights monitoring: APF see Asia
with Disabilities (CRPD): capacity 82; Pacific Forum of National Human
implementation 79–80; Rights Institutions (APF); China 10,
institution-building 65–6, 70–3; 13, 87–104; disinclination 73; ICCPR
NHRIs 80–1; notable features 73–86; 9, 17–36; international institutions
oversight 77; overview 70–1; 9–10; minorities 30–3, 45–6;
permanent monitoring 77–9; potential multiculturalism 37–48; The
challenges 73–86; regional institutions Netherlands 44–5, 47–8; NHRIs see
lacking 73–5; resources 82; time National Human Rights Institutions;
frames 82–4; uptake 71–3; see also Optional Protocol to the Convention
disabled persons against Torture (OPCAT) 10, 64–86;
cultural diversity: regional integration 2, permanent monitoring 77–9;
4; see also multiculturalism privacy/family life 42–3; regional
institutions 10–12; regional integration
death penalty: extrajudicial killings 27; 1–13; religious freedom 29, 44; sexual
ICCPR 21–3 orientation 33, 42–3, 186, 188–9,
detention conditions: arbitrary detention 200–7; sub-regional institutions 5, 11;
26–7; children 25; civil liberties 24; UN Human Rights Council 9, 17–36,
ICCPR 23–5; torture 23–4 49–63; UPR see Universal Periodic
Deva, Surya 13, 234–48 Review
disabled persons: CPD see Convention on
the Rights of Persons with Disabilities implementation: Convention on the
diversity: common standards 109–11; Rights of Persons with Disabilities
culture see cultural diversity; European (CRPD) 79–80; migrant workers rights
Convention on Human Rights (1950) 161–3; National Human Rights
110–11; Universal Declaration of Institutions (NHRIs) 80–1, 191–7;
Human Rights (1948) 19; see also networks 185–208; Optional Protocol
multiculturalism to the Convention against Torture
Donnelly, Jack 252 (OPCAT) 79–80
Durbach, Andrea 12–13, 209–33 India: corporate abuse 240–7; experiences
244–7; National Human Rights
employment: labour rights 30; migrants Commission 13, 240–7
see migrant workers indigenous populations: minority rights
European Convention on Human Rights 45–6; privacy/family life 43;
(1950): diversity 110–11; ECHR case protection 31
law 119–20; friendly settlement 122; institution-building: CRPD (2007) 65–6,
identity construction 115; influence 19; 70–3; dynamics 6; human rights
solidarity/subsidiarity 119–20 treaties 65–7; innovations/challenges
266 Index
64–86; new kinds 75–6; OPCAT 161–3; initiatives 158–61; instruments
(2006) 67–70 149–53; International Convention on
institutions: engagement/persuasion the Protection of the Rights of All
127–43; human rights implementation Migrant Workers (ICRMW) 11,
185–208; international see 149–53; international framework
international institutions; monitoring 148–55; International Labour
see human rights monitoring; Organization (ILO) 144–64; labour
sub-regional institutions 5, 11; migration dynamics 146–8; National
transnational/national 12, 185–263 Human Rights Institutions (NHRIs)
International Covenant on Civil and 80–1; normative framework 148–9;
Political Rights (ICCPR): adherence position matters 157–8;
18–19; anti-terrorism laws 25–6; principles/processes 153–5; three
arbitrary detention 26–7; Asia Group communities 155–8; three pillars

18; death penalty 21–3; detention 157–8; Universal Declaration of
conditions 23–5; extrajudicial killings Human Rights (1948) 148–9
27; First Optional Protocol (1976) minorities: aboriginal peoples
17–18, 33–5, 39; human rights see indigenous populations; human
monitoring 9, 17–36; multiculturalism rights monitoring 30–3, 45–6
19, 38–46; Pacific Islands 19; Second Moore, Sally Falk 254–5
Optional Protocol 22 Mowbray, Jacqueline 11, 107–26
international institutions: monitoring Muller, Wim 10, 87–104
see human rights monitoring; regional multiculturalism: abstract discussion 46–7;
see regional institutions background 37–8; dialogue 47;
International Labour Organization (ILO): flexibility 47–8; human rights
migrant workers 144–64 monitoring 37–48; ICCPR 19, 38–46;
international relations networks 186–91 norms 47; universal rights 39–40;
universal values 9
Japan: death penalty 22; women 32, 40, multinational corporations (MNCs):
47 human rights abuse 234–48;
Jilani, Hina 209 traditional conception 236–7; winds of
Jordan: National Centre for Human change 238–40
Rights 203
Nasu: Hitoshi 1–13
Kneebone, Susan 11, 144–64 National Human Rights Institutions
Korea (DPRK): Universal Periodic (NHRIs): background 234–6;
Review (UPR) 57–60 corporate abuse 234–48, 241–4;
human rights monitoring 12–13;
Lao PDR: case study 11–12, 165–82; implementation 80–1, 191–7; India
gender perspective 174–81 13, 240–7; shadow reports 66
Lee Kuan Yew 137 national institutions: ANNI see Asian
Network of National Institutions for
McCosker, Sarah 10, 64–86 the Promotion and Protection of
Mahathir Mohamed 137 Human Rights; APF see Asia Pacific
Malaysia: SUHAKAM 198–9, 203 Forum of National Human Rights
Merry, Sally Engle 252–3, 256–7 Institutions
migrant workers: agenda 144–64; ASEAN national preventive mechanisms (NPMs):
Migrant Workers (TF-AMW) 11, OPCAT 67–9; oversight 76–7; powers
162–3; background 144–6; Committee 75
on Migrant Workers (ACMW) 161; Nepal: background 209–12;
Declaration on the Protection and Comprehensive Peace Accord (2006)
Promotion of the Rights of Migrant 222–5; emergence of commission
Workers 144, 159–63; Forum on 215–22; Human Rights Commission
Labour Migration 11; human rights case study 12–13, 209–33; inadequate
148–55; implementation of declaration funding 226–8; international support
Index 267
228–30; political instability 225–6; 120–2; national sovereignty 117–20;
protracted conflict 212–15; uneven non-interference 117–20; Pacific
record of achievement 225–30 125–6; pre-conditions 122–6; rights
The Netherlands: human rights protections resisted 109–22; South
monitoring 44–5, 47–8 Asia 125; values see Asian values
networks: accountability 187–8, 197–9; regional institutions: evolving mechanisms
ANNI see Asian Network of National 107–82; human rights monitoring
Institutions for the Promotion and 10–12; lacking 73–5; sub-regional
Protection of Human Rights; institutions 5, 11
background 185–6; critique 188–90; regional integration: cultural diversity 2,
dynamics of change 199–207; human 4; European Union (EU) 7; human
rights implementation 185–208; rights monitoring 1–13; motivation
international relations 186–91; 1–2

Transnational Advocacy Network regions: meaning 8; regional
(TAN) 190, 199; utility 188–9 exceptionalism 107–26
Nguyen Tan Dung 167 religious freedom: human rights
monitoring 29, 44
O’Neill, William 209 Renshaw, Catherine 12, 185–208
Optional Protocol to the Convention Renteln, Alison 252
against Torture (OPCAT): capacity reporting: Chinese practice 92–103;
82; human rights monitoring 10, individual petitions 17–36; NHRIs 66;
64–86; implementation 79–80; shadow reports 66
institution-building 67–70; national Rudd, Kevin 1, 2
preventive mechanisms (NPMs) 67–9;
NHRIs 80–1; notable features 73–86; Sakamoto, Shigeki 9–10, 49–63
oversight 76–7; overview 67–9; Saul, Ben 11, 107–26
permanent monitoring 77–9; potential sexual exploitation 103, 178, 236
challenges 73–86; regional institutions sexual harassment 33, 177, 239, 245–7
lacking 73–5; resources 82; sexual orientation: human rights
subcommittee obligations 67–8; time monitoring 33, 42–3, 186, 188–9,
frames 82–4; uptake 69–70 200–7
Shearer, Ivan 9, 17–36
Paris Principles (1993) 38, 60, 68, 71, 99, Slaughter, Anne-Marie 186–8, 197
191, 194–5, 198–9, 209–11, 221, 227, sovereignty: China 87–104; principled
230–3, 258, 241, 243, 247 sovereignty 87–104; regional
People’s Republic of China (PRC) cooperation 117–20
see China Sri Lanka: Universal Periodic Review
Philippines: death penalty 22–3 (UPR) 60–2
Pietropaoli, Irene 11–12, 165–82 Sweden: minority rights 46
politicization: China 92; UN Human
Rights Council 49 Tan Hsien-Li 11, 127–43
privacy/family life: human rights Tay, Simon 169
monitoring 42–3 Termsak Chalermpalanupap 132
terrorism: anti-terrorism laws 25–6
Quijana, Anibal 251 torture: detention conditions 23–4;
OPCAT (2006) see Optional Protocol
receptor approach: application in China to the Convention against Torture
258–63; background 254; Bhe case Transnational Advocacy Network (TAN)
255–6; human rights 254–63; 190, 199
policies/laws 261–3; potential risks
258; research 257; transcended 254–7 UN Convention on Migrant Workers
regional cooperation: background 107–9; (ICRMW) 11, 149–53
diversity 109–11; exceptionalism UN Human Rights Committee: asylum
107–26; informal dispute settlement seekers 33; background 17–18;
268 Index
children 30–1; civil rights 28–30; framework 251–2; literature review
concerns 27–33; criminal justice 29; 252–3; problems 251–2;
degrading treatment 41–2; values/multiculturalism 9
engagement 20–36; ethnic minorities
32; indigenous populations 31, 43; values: Asian see Asian values; universal
labour rights 30; legal frameworks see universal values
27–8; minorities/vulnerable groups Vienna Declaration (1993) 5, 90, 130,
30–3; multiculturalism 38–46; practice 138
40–6; privacy/family life 42–3; Vientiane Action Programme (VAP)
religious freedom 29, 44; reporting 140–1, 142
record 20–33; reporting/individual
petitions 17–36; sexual orientation 33, women: ACWC 5, 11–12, 165–8;
42–3; surnames 44–5; women 31–2, CEDAW 93, 139, 160, 162–3, 170–1,
40–1 174, 177–8, 180; gender perspective
UN Human Rights Council: composition 174–81; Japan 32, 40, 47; non-
50; human rights monitoring 9, discrimination 40–1, 47; protection of
17–36, 49–63; politicization 49; UPR rights 31–2, 166–8; sexual exploitation
see Universal Periodic Review 103, 178, 236; sexual harassment 33,
Universal Declaration of Human Rights 177, 239, 245–7
(1948): diversity 19; migrant workers Working Group (Singapore) see ASEAN
148–9 Working Group for an ASEAN
Universal Periodic Review (UPR): Human Rights Mechanism
background 49–50; challenges 49–63; (MARUAH)
China 54–6, 90–1; documentation
52–3; human right monitoring 9–10,
Xia Yong 260, 261
17, 49–63; ideal/reality 50–4; Korea
57–60; mechanism 52–4; objectives
51; OHCHR 52–3; outcomes 51; Yogyakarta Principles (2009) 202–4,
practice 54–62; process 52; Sri Lanka 206–7
60–2
universalism/relativism: alternative Zou, Mimi 13, 249–63
approaches 252–3; debate 251–3; Zwart, Tom 13, 249–63

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Human Rights in the

Hitoshi Nasu is a lecturer in law at the Australian National University and a

International Law Rights in the Post-Cold War Era

Edited by Hitoshi Nasu

ISBN13: 978-0-415-60254-9 (hbk)

Introduction: regional integration and human

1. The engagement of Asia-Pacific states with the UN

2. Human rights monitoring institutions and

3. Challenges to a human rights mechanism in the

5. Chinese practice in UN treaty monitoring bodies:

6. Resistance to regional human rights cooperation in

7. Persistent engagement and insistent persuasion: the

8. ASEAN: setting the agenda for the rights of migrant

9. Challenges for ASEAN Human Rights Mechanisms:

10. The role of networks in the implementation of human

12. Corporate human rights abuses: what role for the

13. Rethinking human rights in China: towards a receptor

This book originated at the International Conference on Human Rights in the

ACJ Advisory Council of Jurists of the Asia Pacific Forum of National

OAS Organization of American States

Optional Protocol to the Convention Against Torture, opened for signature 4

Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, adopted

three-year Australian Research Council funded project with the APF).

Jacqueline Mowbray is a lecturer in the Faculty of Law at the University of

comparative constitutional law at Utrecht University. Prior to this role, Mimi

Regional Forum (‘ARF’) (dealing with regional security and confidence-building).9

rising transnational problems such as migration, environmental harm and human

18 This point is further elaborated in Chapter 13 of this book.

in 1993 when ASEAN Foreign Ministers issued a Joint Communiqué in support

24 The text is available at: <http://material.ahrchk.net/charter/> (accessed 12 March 2010). For

Objective and approach

political settings of the region, human rights protection and institution-building

41 999 UNTS 171 (entered into force 23 March 1976).

More practical and much deeper challenges of strengthening human rights

42 2375 UNTS 237 (entered into force 22 June 2006).

Transnational and national institutions

The difficulty in generating sufficient political will in the Asia-Pacific region to

or practical obstacles in requiring NHRIs to deal with corporate human rights

Ivan Shearer and Naomi Hart

The adherence of Asia-Pacific states to the ICCPR

The reporting record of Asia-Pacific states

The death penalty

12 Rules of Procedure of the Human Rights Committee, UN Doc. CCPR/C/3/Rev.8 (2005),

27 HRC, Concluding Observations on Mongolia, UN Doc. CCPR/C/79/Add.120 (2000), para.

Although the Committee welcomed the Republic of Korea’s abolition of the

should in particular: a) guarantee the right to be presumed innocent by

Removals and Disappearances, urging Sri Lanka to extend the Commissions’

Emergency Response, particularly the suspension of the Racial Discrimination Act

pregnancies.123 The Committee noted surviving laws which discriminated against

Finally, the Committee identified a number of miscellaneous human rights issues.

Acceptance by Asia-Pacific states of the Optional Protocol

author is then permitted to make observations on the state party’s response, to

137 Ibid, art. 4(2).

143 Ibid, paras 14, 15.

The meagre record of acceptance by Asia-Pacific states of the individual com-

development of regional human rights cooperation, by drawing on the author’s

Committee, consideration shall be given to equitable geographical distribution of

tension caused by multiculturalism in the application of universal standards under

Multiculturalism and the practice of the Human

6 Human Rights Committee, Concluding Observations on Egypt, UN Doc. CCPR/CO/76/EGY

Cruel, inhuman or degrading treatment or punishment

date of execution and reveal the burial site of the executed.17