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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Southeast Asian Court of Human Rights

Hao Duy Phan

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Election of judges — Registry — Jurisdiction — Recognition and enforcement — Judges — Human rights

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

Southeast Asia as a region does not have a human rights court. Unlike other regional courts and tribunals, a Southeast Asian Court of Human Rights (‘SEACtHR’) is still very much a project in progress and an aspiration (Failed International Courts and Tribunals). This entry makes the case for this unfinished project and introduces a blueprint for designing this regional human rights court.

On 25 October 2009, the Association of Southeast Asian Nations (ASEAN) established the ASEAN Intergovernmental Commission on Human Rights (‘AICHR’). The AICHR marks an important milestone in institutionalizing regional human rights cooperation in Southeast Asia. Nevertheless, it is still a work in progress rather than an accomplished mission. Under the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (‘Terms of Reference’), the AICHR is an intergovernmental organ (Art 3 Terms of Reference) with its members representing and being accountable to their respective governments that appoint them (Art 5 Terms of Reference). The Commission is mandated to promote human rights norms, but it is not authorized to monitor human rights practices in regional countries, take investigative actions against alleged human rights abuses, or redress human rights violations. It must adhere to the ASEAN’s principle of non-interference (Art 2 Terms of Reference) and can only make decisions on the basis of consultation and consensus (Art 6 Terms of Reference). Moving from an inter-governmental promotional human rights body to an independent, strong, and effective mechanism, therefore, remains a long-term objective for ASEAN.

Experiences of regional human rights protection from Europe, the Americas, and Africa suggest that multiple human rights mechanisms can be developed at the same time for the overarching goal of enhancing human rights protection. Given its institutional constraints, the AICHR should not be the only regional human rights mechanism for Southeast Asia. To better assist regional countries in addressing human rights abuses and improving their human rights practices, there should be a different regional body, in addition to the AICHR, that is able to consider cases of alleged human rights violations and issue decisions with which member states are bound to comply.

Compared to an intergovernmental promotional mechanism, an independent human rights court could provide more robust human rights protection. It would be able to consider and make binding decisions on complaints of human rights violations. It could also provide redress and remedies to victims of abuses while issuing authoritative interpretations of human rights laws and human rights norms. Finally, a regional human rights court would be able to put more pressures on member states to implement their obligations, more effectively changing their behaviours. The establishment of the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights (ACtHPR) suggests that a regional court is the goal that different regions around the world have searched for in their own evolution towards building a strong system of regional human rights protection—the League of Arab States (LAS) adopted the Statute of the Arab Court of Human Rights in 2014, but the Statute has not entered into force and the Court has not been in operation. These regional human rights courts may vary in terms of institutional design; nevertheless, they have the potential to bring about improvements in their regions while complementing the work of the global human rights bodies (Human Rights, Treaty Bodies) established under the United Nations in promoting and monitoring the implementation of human rights treaties.

B.  Project

ASEAN member states have not held any official discussion at the regional level on the project of an ASEAN Court of Human Rights. In ASEAN’s current context, the idea is not yet feasible given the significant differences and disagreements in human rights views and practices among ASEAN member states as well as their rigid application of the rule of making decisions based on consensus. This does not mean that the idea of a regional human rights court is not worth exploring. While ASEAN may not be able to reach a consensus on an ASEAN Court of Human Rights for all its member states, a selective approach could be considered to allow a select group of regional countries with more progressive views on human rights cooperation to lead the way and establish a SEACtHR, which does not necessarily have to be placed under ASEAN’s purview. The rest of the region could participate when they are ready and willing (Phan, 2012).

The history of regional co-operation across different domains in Southeast Asia offers numerous examples of how this selective approach could work. When regional consensus cannot be reached on a sensitive issue, a group of states can choose to work separately while the rest of the region may join in later if they so wish. In 2002, Indonesia, the Philippines, and Malaysia signed an Agreement on Information Exchange and Establishment of Communication Procedures, according to which they committed to sharing airline passenger lists and fingerprint databases and strengthening border controls. Cambodia and Thailand later acceded to the Agreement. Similarly, in 2004, several regional states decided to adopt the Treaty on Mutual Legal Assistance in Criminal Matters (Mutual Legal Assistance in Criminal Matters), outside of the ASEAN framework when they realized it was not possible to reach an agreement among all ten ASEAN member states at that time. The Treaty eventually attracted the participation of all ASEAN members in 2013. The most remarkable example is ASEAN itself, which was originally created in 1967 with only five nations even though it was envisaged to eventually include all regional countries.

To examine the case for the SEACtHR, an expert-based survey was conducted in 2009 with 42 participants in Southeast Asia (Phan, 2009, Report). Participants included government officials responding to the survey in their individual capacities, members of national human rights institutions, experts in the fields of human rights and Southeast Asian politics, and representatives of international organizations and non-governmental organizations (‘NGOs’) in the region. The purpose of the survey was to explore the hypothesis that a regional human rights court is necessary and feasible for Southeast Asia and to gauge regional reactions to the idea of a selective regional human rights court. A majority of the respondents deemed it definitely necessary to establish the SEACtHR. Many noted, however, that there was a great deal of challenges in pursuing this judicial project. While the project would receive support from NGOs, national human rights institutions, and international organizations operating, the biggest obstacle, many respondents cautioned, was the political will, or lack thereof, of the governments in the region. This survey of regional experts indicates that the project of creating a regional human rights court for Southeast Asia would likely take quite some time and a lot of hard work from various actors to become a reality. It could start, however, with a blueprint and concrete specifications as proposed below.

C.  Founding Members

Unlike the AICHR, which covers only ASEAN member states, the proposed SEACtHR could be open to all states in Southeast Asia, including ten ASEAN member states and Timor-Leste. Established under the selective approach, the SEACHR would only have jurisdiction over member states that have accepted its competence. It could then gradually expand over time to include other countries in the region when they are capable and willing to join.

The process towards the establishment of the AICHR reveals a significant gap between two groups of regional countries when it comes to regional human rights cooperation (Tan, 2011, 156). This can be used as a basis to identify potential founding members of a future SEACtHR. Among ASEAN member states, Indonesia and the Philippines were the first to support the establishment of an ASEAN human rights mechanism. Thailand and Malaysia followed suit in expressing their endorsement of the idea. These four countries held regular dialogues with civil society organizations and their national human rights institutions and organized several workshops and meetings on the topic of a potential human rights mechanism for the region. They were also more active in pushing for changes in human rights norms within ASEAN. Throughout the process, they seemed ready to accept a strong human rights body and particularly wanted to include in the Charter of the Association of Southeast Asian Nations (‘ASEAN Charter’) specific and strong language on a regional human rights mechanism. Indonesia even went so far as to publicly announce that whatever mechanism the region was going to establish, Southeast Asia should eventually a have regional court of human rights (Human Rights Herald, 2007). Singapore came around to publicly supporting the idea later, whereas Brunei remained silent throughout the process. On the other side of the aisle, Laos, Cambodia, Myanmar, and Vietnam were much more sceptical and wary of the efforts to institutionalize regional human rights cooperation. One can thus infer from the interactions among regional countries that there was one group of states that called for changes in regional protection of human rights while another group tried to preserve the status quo. A realistic solution to this bifurcation is for the former group of four regional countries to proceed separately and establish a regional human rights court while assisting other states to join later when they are willing and able to do so (Phan, 2012, 181).

10  As the proposed SEACtHR does not have to be an ASEAN organ, Timor-Leste could join the court from the beginning. Timor-Leste has a relatively short history as an independent state. However, it has demonstrated a robust commitment to international law, international human rights norms and dispute resolution. Like Indonesia, Thailand, the Philippines, and Malaysia, Timor-Leste has established a national human rights institution. It has also ratified the Rome Statute of the International Criminal Court, unilaterally recognized the jurisdiction of the International Court of Justice (ICJ) as compulsory, and accepted all individual complaint mechanisms under major international human rights treaties and all dispute settlement mechanisms under the 1982 United Nations Convention on the Law of the Sea. These are indications that this latest nation of the Southeast Asian region may be open to the possibility of becoming a member of the SEACtHR.

D.  Founding Document

11  A regional court with the authority to issue binding judgments should be established by a treaty concluded in accordance with the Vienna Convention on the Law of Treaties (1969) (‘VCLT’). Interested states could initially appoint a group of experts, representatives or eminent persons to draft the treaty and then convene a meeting to consider and adopt the treaty. The founding treaty should have binding force and be performed by all states parties to it in good faith (Art 26 VCLT). States parties could not invoke their domestic laws as a justification for their failure to implement the treaty (Art 27 VCLT). The treaty should also allow accession by other regional states when they decide to participate at a later date (Phan, 2009, 391).

12  The founding treaty to establish the SEACtHR should have two key parts. The first part should provide clear legal human rights standards for the states parties. The second should set up a regional human rights court to handle cases that may arise concerning the protection of recognized human rights. The Universal Declaration of Human Rights (1948) and the ASEAN Human Rights Declaration (2012) could be used as the basis for the first part. Valuable lessons and design practices can be learned from the evolution, development and operation of the European, Inter-American, and African courts of human rights. Lessons from the Americas and Africa might be particularly relevant not only because they have gone further than Southeast Asia in terms of building their own human rights courts, but also because they have confronted similar challenges before, including a diversity of political regimes and human rights practices and different levels of economic development and human capacities.

13  The ECtHR was established by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘European Convention’). Article 46 European Convention provided that states are free to accede to or reject the ECtHR and that the ECtHR would not come into operation unless its jurisdiction was recognized by at least eight states. When the European Convention entered into force in 1953, only Denmark and Ireland had exercised this option and it was not until in 1959 that the ECtHR receive enough state ratifications to be officially established. The ECtHR’s jurisdiction eventually became compulsory for all state members in 1998. The IACtHR was founded by the American Convention on Human Rights (1969) (‘American Convention’). Article 62 American Convention provides that a state may, at any time, declare that it recognizes the jurisdiction of the IACtHR. The ACtHPR was created with the adoption and entry into force of the African Charter on Human and Peoples’ Rights (1981) (‘African Charter’) and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (‘African Protocol’). Similar to the IACtHR and the ECtHR when it was first established, the African Protocol is optional and member states may reserve their right to accept or reject the ACtHPR’s jurisdiction. In summary, the optional approach to establishing regional human rights courts has been adopted at various stages in the history of all three major regional human rights protection systems. It thus offers a valuable lesson and inspiration for Southeast Asia.

E.  Jurisdiction

14  Jurisdictional provisions are usually one of the most important issues in a founding treaty of an international court. They determine what types of legal disputes and applications the Court would handle and who might have the standing to bring a case before the Court. Here the experiences of other regional human rights systems could also prove instructive. In terms of subject-matter jurisdiction, Article 32 (1) European Convention provides that the ECtHR’s jurisdiction covers all matters concerning the interpretation and application of the European Convention and its protocols. Article 62 (3) American Convention affirms that the IACtHR’s jurisdiction comprises all cases concerning the interpretation and application of the American Convention. The African Protocol, in Article 3 (1), goes even further than its European and American counterparts in extending the jurisdiction of the ACtHPR to include all cases concerning the interpretation and application of the African Charter, the African Protocol, and any other relevant human rights instruments that have been ratified by the states concerned. This, on the one hand, gives judges on the ACtHPR a very broad mandate. On the other hand, it might create the problem of overlapping jurisdiction as issues concerning the interpretation and application of an external human rights treaty are also likely to fall within the purview of the treaty body established under that treaty. States are more likely to join an international court if they know the specific subject-matter and personal jurisdiction to be applied and the criteria to be used in determining whether and to what extent their conduct will be reviewed. As a result, an advisable option for Southeast Asia is to limit the contentious subject-matter jurisdiction of the SEACtHR to its founding treaty (Phan, 2009, 399).

15  In terms of personal jurisdiction, it is reasonable to expect that if a human rights court is to be established in Southeast Asia, states will be allowed to bring cases to the Court. Ultimately, it is states that will establish the Court and approve its jurisdiction. Allowing states parties direct access to an international court could contribute to peacefully resolving international disputes. Granting states parties the right to make complaints to the Court also helps redress human rights violations and bring the perpetrators to justice. However, the problem is that in all existing regional human rights systems, states rarely initiate cases against one another regarding human rights violations, possibly fearing their relationships with the respondent states would be jeopardized. Another reason is that doing so may come back to hurt them later since they may face similar legal actions by other states in the future (Phan, 2009, 402). As a result, while it is very likely that states parties would be allowed to bring cases to the SEACtHR, the Court’s contentious jurisdiction over inter-state cases would not hold great promise.

16  For a human rights court, individuals are at the center of the judicial process as human rights violations are mostly committed by states against their own people or people under their jurisdiction. As a regional court established under a selective approach for a small number of states, the SEACtHR should allow individuals direct access to the Court. Unlike the Inter-American and African systems, however, the SEACtHR as proposed by the author would not have a commission to serve as a filtering mechanism. It could nevertheless create an internal filtering mechanism to be responsible for this important function and ensure that while individuals have the right to file complaints, the Court has the capacity to handle the caseload and avoid delay in delivering justice.

17  With regard to the right of NGOs to file a complaint before the court, Article 34 European Convention authorizes the ECtHR to receive applications from any NGOs regardless of their nationality or whether they have observer status with the Council of Europe (COE), provided that they are a victim of the violations by a state party of the rights set forth in the European Convention or the protocols thereto. While the American Convention does not require that an NGO is the victim of a human rights violation to be able to file a complaint, it only allows those NGOs that are legally recognized in a member state of the Organization of American States (OAS) to submit petitions to the Inter-American Commission on Human Rights (IACommHR), but not directly to the IACtHR. The American Convention then leaves it to the Inter-American Commission to refer to the IACtHR the cases that the Inter-American Commission deems appropriate—in effect, the Inter-American Commission serves as a filtering mechanism because the American Convention only authorizes the Commission and the state parties which have recognized the IACtHR’s binding jurisdiction to present a case before the IACtHR. In the African system, the competence of the ACtHPR to receive NGO petitions is made contingent upon a declaration by the states parties to accept the competence of the ACtHPR. Like the Inter-American human rights system, there is no requirement under the African system that the NGOs presenting the complaint be the victim of a human rights violation or located in the country against which the complaint is made. For Southeast Asia, it is advisable that NGOs should be authorized to bring cases to the SEACtHR when they are the victims of a human rights violation. They should also be allowed to assist individuals or act on their behalf in making human rights petitions. Compared to individuals, NGOs usually have more extensive resources to investigate human rights abuses and file complaints accordingly. Their participation in the judicial process therefore not only assists victims to seek justice but also helps the Court carry out its mandate more effectively (Phan, 2009, 403).

18  Regional human rights courts usually have jurisdiction over two types of cases: contentious cases between states or between states and individuals and advisory opinions on questions of international human rights law. Advisory opinions by international courts can provide a guideline for the understanding and application of important, yet disputed, concepts and principles of human rights law. The SEACtHR should therefore have the authority to issue advisory opinions on the interpretation of the SEACtHR’s founding treaty (Phan, 2009, 409). Requests for advisory opinions can be made by the Court’s member states and even by the AICHR and other relevant ASEAN bodies. Allowing the Court to respond to requests for advisory opinions by ASEAN bodies would assist these actors in better fulfilling their obligations of complying with international human rights norms. More broadly, it would also enable the SEACtHR to contribute to developing and setting common human rights standards for all regional countries, extending the Court’s influence even to those states that are not yet willing to join the Court (Phan, 2009, 409).

F.  Judges

19  How competent judges are selected or elected is an important factor that may have a great impact on the Court’s work and its effectiveness (Phan, 2009, 410). As standard requirements, judges of the SEACtHR should be people of recognized competence in the field of human rights and should possess the qualifications required for exercising the judicial functions in conformity with the law of the states that nominate or select them as candidate judges. Since the SEACtHR would be a regional court for Southeast Asia, judges should have the nationality of a regional state although they do not necessarily have to be nationals of the member states of the Court. The presence of judges of non-member states on the Court would contribute to raising awareness and promoting the participation of these states. It would also be a good idea to include judges from various legal systems and traditions in Southeast Asia (Phan, 2009, 412). Consideration should also be given to ensure gender equality in electing judges (neither the American nor the European human rights system includes specific provisions regarding equal gender representation on the bench although the European system has developed incentives to promote gender balance among judges of the ECtHR).

20  To ensure the independence of judges in carrying out their tasks, the SEACtHR founding treaty should clearly provide that judges must serve in their individual capacity. They should not represent any government and should be able to exercise independent judgment when deciding cases. During their tenure in office, they should not engage in any activities that are incompatible with their judicial functions in both substance and appearance. Member states should grant SEACtHR judges diplomatic privileges, as well as immunity from liability for any decisions or opinions issued in the exercise of their functions.

21  In terms of the number of judges, the SEACtHR may have two options. The first is to have the number of judges equal to the number of member states. This is the approach that the ECtHR has adopted. The second option is to have a fixed number of judges on the bench. The IACtHR has seven judges (Art 52 (1) American Convention) while the number of ACtHPR judges is 11 as provided for in the African Protocol (Art 11 (1) American Convention). Southeast Asian states might consider adopting the first approach, which would help ensure the representation of all nations on the SEACtHR. If the number of states parties, and, accordingly, the number of judges, is even, it might in some cases make it more difficult for the judges to reach judicial decisions (Phan, 2009, 413). The SEACtHR founding treaty could stipulate that the President of the Court will have the casting vote.

22  With regard to the issue of terms of office, judges of both the IACtHR and the ACtHPR are elected for a term of six years and may be reelected only once (Election of Judges: Inter-American Court of Human Rights (IACtHR); Election of Judges: African Court on Human and Peoples’ Rights (ACtHPR)). To ensure smooth and uninterrupted continuity in the court’s work, the term of half of the ECtHR and IACtHR judges selected in the first election expired at the end of three years. In the case of the ACHPR, the term of four ACHPR judges elected in the first election expired at the end of two years, and the term of four more judges expired at the end of four years. Judges of the ECtHR serve for one non-renewable term of nine years. This rule is intended to ensure tenure security of the judges and reinforce their independence and impartiality. Thus, to remove the impact of political considerations as far as possible in the appointment of judges and make sure judges would not have to worry about campaigning for reelection in their nominating states, the term of office for the SEACtHR judges should be limited to a single term (Phan, 2009, 415).

G.  Structure

23  The ECtHR has a very complicated structure which includes the Grand Chamber and different sections in which Chambers are formed. Each application is assigned to a section. A single judge in the section can declare an application inadmissible or strike it from the ECtHR’s list of cases (Art 27 (1) European Convention). A committee composed of three judges can rule on the admissibility and the merits of the application if the underlying question in the case is already the subject of well-established case-law of the Court (Art 28 (1) (b) European Convention). Otherwise, the application is decided by a Chamber of seven judges (Art 29 (1) European Convention). The Chamber might decide to relinquish its jurisdiction in favour of the Grand Chamber of 17 judges if the question in the case raises a serious question affecting the interpretation of the Convention or if the resolution of the question might have a result inconsistent with a judgment previously delivered by the Court (Art 30 European Convention). Compared to the ECtHR, the organizational structure of the IACtHR is much simpler. It has a single-chamber structure without being divided into any sub-chambers or sections. Five judges constitute a quorum for the IACtHR’s transaction of business. The organization of the ACtHPR is almost the same, except that a quorum requires seven, rather than five judges.

24  As the proposed SEACtHR is expected to be a relatively small human rights court, it should also have a simple structure. Specifically, it can follow the model of the IACtHR and ACtHPR in establishing a single court formation without dividing into smaller chambers. The SEACtHR as a whole would then be in charge of making decisions on admissibility and jurisdiction and rendering judgments on merits. Member states should only consider dividing the Court into chambers if its caseload increases and leads to delayed justice.

25  Ideally, the SEACtHR should have a full-time bench of judges for several reasons. First, a human rights court with full-time judges is better at handling emergency cases than one with only part-time personnel. Second, a full-time court could avoid or reduce delay and backlog. Third, the part-time status of a future SEACtHR may lead to a situation in which its judges pursue additional employment in other venues and assume additional official or unofficial positions that could potentially interfere or conflict with their work on the bench (Phan, 2009, 416). Member states may not be fully supportive of a full-time court for fear of greater financial burdens, which might represent a challenge. A feasible solution is to appoint part-time judges for the first five years of the Court, except for the Court’s president. If the Court’s workload subsequently increases, affecting its ability to handle cases in a timely manner, the judges could propose to the Meeting of State Parties to modify the rules and allow it to develop into a full-time court. This is also the approach that African states adopted in the African Protocol by specifying that ‘the Assembly may change this arrangement as it deems appropriate’ (Art 15 (4) African Protocol) (Phan, 2009, 417).

H.  Procedure

26  It is important that procedure before the Court should be explicit, clear and transparent. Case hearings should be open, unless the Court decides otherwise. In principle, the Court’s judgements should be made accessible to the public as well. So should its annual reports. Another implication of this transparency would be that it puts pressure on member states, making visible any human rights situations or allegations of abuses that must be addressed and remedied. Transparency could also help increase the credibility of the Court, which is critical to its impact (Phan, 2009, 420).

27  In case of emergency or extreme gravity, the SEACtHR should be authorized to issue provisional measures. Under the European and Inter-American human rights courts, the power to issue provisional measures is provided for in the court’s rules of procedures. For a newly created SEACtHR, this power should be included in the founding treaty to ensure these measures carry a significant weight and their binding nature is not contested and, as a result, induce compliance by states parties. The founding treaty should also clearly provide that member states are obliged to comply with the Court’s provisional measures and their implementation should be monitored and reported in the Court’s Annual Report (Phan, 2009, 421).

28  During the judicial process at the SEACtHR, at the request of the concerned parties, the SEACtHR should be able to work with all parties to facilitate a friendly settlement of a dispute on condition that human rights are respected. At the SEACtHR, individual applicants should be allowed to present their cases or ask for legal representation. A legal aid program should therefore be established to provide legal assistance to those who need it. Human rights lawyers and national and regional NGOs should be allowed to assist the Court in providing free legal representation for clients at the SEACtHR and helping them to find resources to pursue the proceedings (Phan, 2009, 422).

I.  Finance and Administration

29  Administrative work of the Court would be carried out by the Court’s Registry, whose functions would include assisting judges, preparing cases, attending hearings, drafting decisions, and running the logistical operation of the Court. The Registrar should be appointed by the judges of the Court and empowered to recruit his or her supporting staff. This process should be provided for in the Rules of Procedure (Phan, 2009, 424).

30  The official language of the Court should be English, which is also the working language of ASEAN as provided in the ASEAN Charter (Art 34). The fact that the SEACtHR would use only one official language may help lower the Court’s operating expenses while increasing its productivity (Phan, 2009, 424). The languages of states parties could be used on a case-by-case basis, for example, a case involving the Indonesian government or an Indonesian national could be translated into Indonesian, but English would remain the only official language for the Court in all cases. This would be one of the few areas where the SEACtHR may have an advantage over other regional human rights courts. The ECtHR has two official languages, namely English and French. The IACtHR has four official languages: Spanish, English, Portuguese, and French. The working languages of the ACtHPR are Arabic, English, French, and Portuguese (Phan, 2009, 425).

31  The SEACtHR should be based in one of the state parties to the founding treaty. As the location of the Court is also the place where oral hearings would be held, except in special circumstances, due consideration should be given to the issue of physical accessibility. The state in which the SEACtHR is located should also have the resources to support the Court and its Registry. With these factors being properly considered, Jakarta or Singapore might be a good choice if Indonesia or Singapore becomes a member of the Court and is willing to host the Court. Both cities have regular connections to international and regional travel routes. They also host many international media bureaus, diplomatic corps, NGOs, and international organization headquarters, including the ASEAN Secretariat (Jakarta). Having the SEACtHR based in the same city as the ASEAN headquarters might contribute to improved communication and coordination between them, potentially strengthening the operation and efficiency of the Southeast Asian human rights system (Phan, 2009, 425).

32  As the proposed SEACtHR might not be an organ of ASEAN, it should have a separate budget to be financed by the states parties and annually determined by the Meetings of State Parties. As a minimum, funding must be available to build the necessary infrastructure and facilities, provide accommodation for judges, and cover the salaries of the judges, registrar, lawyers, administrative assistants, specialists, translators, accountants, and other supporting staff. This would require strong support from member states since most of the Court’s financial resources would come from the contributions of the state parties. Potential contributions from external donors and how they are used should be monitored by a Trust Fund (Trust Funds, for instance, and be independently audited by a credible auditing body.

J.  Enforcement

33  Under the European Convention, judgments by the ECtHR are transmitted to the Committee of Ministers for supervision (Art 46 (2) European Convention). The Committee of Ministers supervises and furthers the execution and implementation of judicial judgments by keeping the matter on their agenda until the respondent states have, in the Committee’s view, complied with the judgments. The Committee of Ministers can refer an instance of noncompliance to the ECtHR. If the Court finds a violation, it refers the case to the Committee of Ministers for consideration of what measures of response should be taken. The American Convention does not provide for direct and formal enforcement of the IACtHR’s judgments. However, the IACtHR can interpret its judgments at the request of any parties (Art 67 American Convention). At the OAS General Assembly sessions, the IACHR submits a report on its work during the previous year (Art 65 American Convention). It particularly specifies the cases in which a state has not complied with a judgment and then makes any pertinent recommendations. Under the African system, the Executive Council of the African Union (AU) has the responsibility of monitoring the execution and implementation of the ACtHPR judgments on behalf of the AU. The African Protocol especially requires the ACtHPR to submit a list of those states that fail to comply with its judgments in its annual reports to the AU General Assembly (Art 31 African Protocol). This naming and shaming mechanism aims to strengthen enforcement of judgments. The African Protocol, however, does not expressly confer upon the AU Assembly the right to act against non-compliant states parties upon receiving such a list from the ACtHPR (Phan, 2009, 428).

34  An examination of the European Convention, the American Convention and the African Protocol demonstrates that the three regional human rights systems adopt a relatively similar mechanism of compliance monitoring, according to which the relevant court shall issue final and binding judgments and a political organ shall supervise the execution and implementation of these judicial judgments. For Southeast Asia, it could follow the same route. Specifically, the SEACtHR would rule on human rights violations and the Meeting of States Parties would supervise the execution of the Court’s judgments. These judgments would be final and not subject to appeal. The SEACtHR would be authorized to interpret its judgments if disputes arise and to hold hearings about the implementation of its judgments. The SEACtHR should also be required to submit reports to the Annual Meeting of States Parties, presenting information about state compliance, calling out cases of non-compliance with the Court’s judgments and making recommendations for follow-up action. If the concerned state fails to comply with the Court’s judgment, the Meeting of States Parties could adopt a resolution, asking that non-compliant state to provide an explanation or take remedial actions. This would perhaps be the most feasible way for Southeast Asia to enforce the judgments of the SEACtHR (Phan, 2009, 428).

K.  Relationship with Relevant Mechanisms

35  Cooperation and coordination with other actors and international institutions would be particularly important for the success of the SEACtHR because, as a judicial institution, it could not fulfill its mandates in protecting human rights and addressing human rights violations on its own. Relationships between the Court and the governments of its member states would be of paramount importance. An agreement should be signed between the Court and the nation where the Court is located concerning the hosting of the Court. Another agreement concerning the immunity and privileges of the Court’s judges should also be concluded if the matter is not dealt with in the SEACtHR Statute. Consultations and meetings between the Court and states parties should be held on a regular basis to address challenges the Court might be faced with in the future, including amending the founding treaty or the Court’s Statute should the need arise (Phan, 2009, 429).

36  A clear and proper division of labour between the SEACtHR and the AICHR would also be necessary. While the AICHR involves all ASEAN member states, the SEACtHR would mostly involve only its own states parties. The main function of the AICHR is primarily promotional while the proposed Court would assume a great deal of human rights protection, both of which are important. If the mandates and jurisdictions of these two mechanisms are carefully designed and implemented, the possibility of overlapping jurisdiction could be minimized (Phan, 2009, 430).

37  Although the SEACtHR as analysed here would not be an ASEAN institution, it would still function within the broad context of the Southeast Asian region. Therefore, the SEACtHR and the AICHR should not work in isolation but rather coordinate with each other. With regards to the SEACtHR’s jurisdiction, the AICHR should have access to the Court and be authorized to request the SEACtHR for advisory opinions. The SEACtHR should also initiate cooperation with other regional human rights courts beyond the region that are likely and willing to offer assistance in terms of substantive case-law, expertise, and technology regarding procedures, administration, and organization.

38  There is also the need for non-governmental and civil society organizations to be engaged during the entire process of building the SEACtHR. NGOs operating in the region should actively participate as endorsers in any future negotiations leading up to the establishment of a SEACtHR. Once the SEACtHR is established, NGOs should continue to play a role in raising public awareness of the existence and operation of the Court and assisting victims of human rights violations in seeking a remedy at the domestic level. NGOs should be able to appear before the Court in their own capacity as an applicant or as amicus curiae (International Courts and Tribunals, Amicus Curiae) under the title of third party intervention. They should be entitled to participate by assisting individuals in requesting provisional measures and monitoring state compliance with Court’s decisions. The pressures and constructive criticisms by NGOs would also be a positive force to improve the Court’s performance. In sum, NGOs have a vital role to play in continuing to act as a critical watchdog of the international judicial process (Phan, 2009, 430).

L.  The Way Forward

39  The project of establishing a SEACtHR will certainly encounter many challenges. The process of creating a new and most likely the latest regional human rights court in the world may proceed slowly in the face of these challenges. Nevertheless, the possibility of a human rights court for Southeast Asia remains distinct if a proper approach is adopted, appropriate advocacy strategies are employed, and a suitable blueprint is followed through. While human rights advocacy in the region needs to be patient and set realistic goals, proponents should not waver in their commitment or in their actions.

40  The first task in the way forward is for NGOs, international organizations and individual experts to promote the idea of a regional human rights court especially to governments of regional countries that are likely to be more receptive to the prospect of a strong human rights mechanism, including the Philippines, Indonesia, Thailand, Malaysia, and Timor-Leste. Of these, Indonesia has shown that it has the potential to be the leading state when it comes to regional human rights cooperation in Southeast Asia. Although it is possible that leaders in these governments will not embrace the proposal immediately, it would be a great step forward to have the proposal considered and extensively discussed across the region. The establishment of other regional courts of human rights has demonstrated that while it is always difficult to initiate the process of creating a new regional or international human rights court, progress comes gradually and sometimes even in leaps and bounds when momentum is created.

41  Second, from the perspective of the domestic politics approach to international cooperation, it could be the case that the national security apparatus and military departments in regional countries are more disinclined to support the establishment of a regional human rights institution. International institutions could be used to curb their domestic influence and their freedom of action in directing and executing national policies. Foreign affairs services and internationally oriented departments might be more receptive to international cooperation and particularly international institutions. Governmental human rights departments or agencies are probably even more supportive. Advocacy strategies could exploit this divergence to increase the support of sympathetic domestic constituencies while finding ways to blunt the opposition from other domestic groups. Special attention should also be focused on lobbying the legislature in each potential member state since, according to the domestic laws of these states, it is the legislature which will eventually ratify an international treaty that mandates the creation of a regional human rights court. Furthermore, if legislative support is secured, governments are under more pressure to consider and eventually approve the proposal.

42  Third, without any doubt, the whole process should be undertaken with a high level of civic participation. Priorities should be to increase people’s awareness of the existence of human rights courts in other regions and to popularize the idea of a Southeast Asian court of human rights in regional countries. This is the area where local and international NGOs can play an especially important role. The international community can also make valuable contributions by supporting the idea and encouraging its realization. The European, Inter-American and African human rights systems can also offer advice and assistance to Southeast Asia based on their experiences over several decades. Southeast Asia does need international assistance since this would help regional states focus more of their attention on human rights issues, work out a feasible regional strategy and move forward with the establishment of a regional human rights court.

Cited Bibliography

  • HD Phan, ‘The Evolution towards an ASEAN Human Rights’ (2008) 9 Asia-Pacific Journal of Human Rights and the Law 1–12.

  • --- ‘A Blueprint for a Southeast Asian Court of Human Rights’ (2009) 10 Asian-Pacific Law and Policy Journal 385–433.

  • --- ‘Institutions for the Protection of Human Rights in Southeast Asia: A Survey Report’ (2009) 31 Contemporary Southeast Asia 468–501.

  • HL Tan, The ASEAN Intergovernmental Commission on Human Rights, Institutionalising Human Rights in Southeast Asia (CUP Cambridge 2011).

  • HD Phan, A Selective Approach to Establishing a Human Rights Mechanism in Southeast Asia: The Case for a Southeast Asian Court of Human Rights (Nijhoff Leiden 2012).

  • --- ‘Design and Impact of the ASEAN Intergovernmental Commission on Human Rights: Promotional versus Protective’ (forthcoming 2018).

Further Bibliography

  • H Hidetoshi, The Prospects for a Regional Human Rights Mechanism in East Asia (Routledge New York 2004).

  • JD Ciorciari, ‘Institutionalizing Human Rights in Southeast Asia’ (2012) 34 HumRtsQ 695–725.

  • G Clarke, ‘The Evolving ASEAN Human Rights System: The ASEAN Human Rights Declaration of 2012’ (2012) 11 Northwestern Journal of International Human Rights 1–27.

  • M Davis, ‘The ASEAN Synthesis: Human Rights, Non-Intervention, and the ASEAN Human Rights Declaration’ (2013) 14 Georgetown Journal of International Affairs 51–58.

  • CS Renshaw, ‘The ASEAN Human Rights Declaration 2012’ (2013) 13 HRLRev 557–79.

  • N Doyle, ‘The ASEAN Human Rights Declaration and the Implications of Recent Southeast Asian Initiatives in Human Rights Institution-Building and Standard-Setting’ (2014) 63 ICLQ 67–101.

  • GJ Naldi and KD Magliveras, ‘The ASEAN Human Rights Declaration’ (2014) 3 International Human Rights Law Review 183–208.

  • A Pisano, ‘Human Rights and Sovereignty in the ASEAN Path Towards a Human Rights Declaration’ (2014) 15 Human Rights Review 391–411.

  • Y Wahyuningrum, ‘The ASEAN Intergovernmental Commission on Human Rights: Origins, Evolution and the Way Forward’ (2014) International Institute for Democracy and Electoral Assistance.