University of Amsterdam Graduate School of Social Sciences
Research project: Human Rights and Norms of Global Governance
Universalism and Relativism in Human Rights.
Evaluating the Prospects of a Regional Approach based on findings from
the Middle East and Southeast Asia
Lukas Lütje
Supervisor: Dr. Gordon Arlen; Second Reader: Dr. Conny Roggeband Completion: June 2019
Master thesis Political Science Track ‘Political Theory’
TABLE OF CONTENTS
1. Introduction ……….……….……..…. 1
2. Framework ………...……….……….…. 3
2.1. Universalism and Relativism ……….……….…….. 3
2.2. Established Regional Human Rights Mechanisms .………...………... 8
3. Expanding the Regional Approach ……….……….………….…. 12
3.1. The Middle East ………..……….... 14
3.1.1. The League of Arab States and Arab Values ………...………. 15
3.1.2. The Arab Charter and its Committee ……… 17
3.2. Southeast Asia ……….………...…….... 24
3.2.1. The Association of Southeast Asian Nations and Asian Values ……….……. 25
3.2.2. The ASEAN Declaration and the ASEAN Commission ………. 28
4. Discussion – Is Regionalism a Threat to Universalism? …..……….………. 33
5. Conclusion ……….……….... 41 Literature ………... IV Appendices …...………...………... VII
LIST OF ABBREVIATIONS ACHR Arab Charter of Human Rights
AHRC Arab Human Rights Committee AHRD ASEAN Human Rights Declaration
AICHR ASEAN Inter-governmental Commission on Human Rights ASEAN Association of Southeast Asian Nations
ASCHR Arab Standing Committee on Human Rights
CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CED International Convention for the Protection of All Persons from Enforced Disappearance
CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights ICERD International Convention on the Elimination of All Forms of Racial
Discrimination
ICMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
LAS League of Arab States
OIC Organization of Islamic Conference UDHR Universal Declaration of Human Rights
1. Introduction
How can human rights be meaningful for everyone if the world is comprised of different cultures? The question about universality has accompanied the human rights project since the beginning. It poses a challenging issue because two equally desirable goals coalesce (Ernst 2012). On one side, the claim of equality demands that every person on the globe deserves the same basic rights and freedoms. On the other side, the demand for diversity claims space for different cultural backgrounds because the concrete meaning of human rights depends on the historical and socio-cultural context.
Apparently, the debate on universalism and relativism has not always been very progressive. Too often, it has struggled from politicization and a lack of clarity (Le 2016). Scholars regularly fall into two categories (Higgins 1996; Perry 1997; Zechenter 1997, pp. 323-327; Mutua, 2001). Their positions could be stylized as follows. Critics of universal human rights claim that the doctrine has originated in the West, represents Western values and that its global promotion would amount to (neo)imperialism. They believe that universalism serves as an instrument to reassure Western dominance. The allegations are typically countered in a similar style. Representatives of the universal position equate non-conforming behavior with authoritarian leadership and crooked regimes, which use culture as an excuse to suppress individuals and minorities in the developing world. Perhaps this account is a bit exaggerated, but because both positions are often constructed as mutually exclusive genuine progress has been difficult.
An improvement could have been found on the institutional level. The issue of universalism and relativism has been encountered pragmatically with setting up regional human rights mechanisms. They pose a potential remedy to the conflict because they are located in between the global and the local (Heyns & Killander 2013; Saldanha Kroetz 2016). From this position they seem well-prepared to balance conflicting norms and values to the benefit of the people under their jurisdiction. So far, such arrangements have been established in Europe, the Americas and Africa (Shelton & Carozza 2013). The experiences in these regions seem to indicate that regional human rights systems can take a specific role within the international order. Understood as an extension to the global level, they seem to increase the protection of human rights norms.
However, some skepticism persists over the utility and desirability of regionalism (Robbins 2005). Following this view, regional human rights mechanisms pose a threat to the international level because they lead to a decentralization of much needed resources and
attention. Moreover, regional arrangements could be perceived as unfair, since they draw arbitrary boundaries between people and guarantee different levels of protection based geographical belonging. In fact, it would be a serious problem if the regions posed lower standards of protection and thereby effectively undermined the international level (Heyns & Killander 2010).
This paper is set out to evaluate the prospects of regionalism. It treats the two sets of above questions as interrelated. A tendency towards universalism seems to be connected with a supporting position towards stronger international institutions. Whereas any concession towards (cultural) relativism inevitably seems to move the debate towards regionalism. Thus, there are two questions which need to be addressed. On a theoretical level, the paper engages with the debate of universalism and relativism. While this question cannot be answered finally, it is a precondition for the second, more important question. On a practical level, the paper seeks to evaluate whether regionalism poses an adequate institutional order to deal with the tensions between universalism and relativism. Therefore, the central question of the paper is how regional systems take up the conflict between global and local. Do regional arrangements work to mitigate it, or do they intensify it?
To take on these questions, the paper examines new findings from two world regions. During the last two decades, there has been significant progress in the Middle East and Southeast Asia towards establishing two additional regional systems. The new institutions, once fully ratified, would cover 32 countries and hold the promise to extend human rights protection to nearly one billion people. Despite their importance, these systems are still relatively unknown (Rishmawi 2005). Moreover, previous research has predominantly focused on practical aspects, and a gap exists with regard to their substantive norms and values (Heyns & Killander 2010, p. 5). The two systems pose a good empirical basis to re-engage with the long-lasting questions about universalism and relativism.
Within two case studies, the paper tries to get a better understanding of the new regional arrangements. It considers the underlying structural features, the history of the regional intergovernmental organizations (IGOs) and previous regional normative debates on human rights. Against the broader context, the paper evaluates the regional human rights documents and their institutions. The aim of the case studies is to see in which ways the regions support international human rights and in which ways they may be in conflict with them.
The research draws on existing scholarship. On one side, it is situated within the wider human rights literature, and specifically the previous debate on universalism and relativism. On the other side, it builds on the existing body of literature, which has been produced on regional
human rights systems. The research of this paper contributes to these fields in two ways. The examination of the substantive norms within the newer region is relevant for the theoretical debate. The evaluation of the regional approaches is relevant in evaluating the general prospects of regionalism in human rights.
To pursue these aims, the paper proceeds as follows. The next chapter sets up a framework (2.), which contains a summary of the main theoretical positions on relativism and universalism (2.1.), and a review of the experiences in the existing regional human rights systems (2.2.). This information serves as a platform to examine the developments of the newer systems (3.), namely the approaches in the Middle East (3.1.) and Southeast Asia (3.2.). The subsequent chapter discusses whether the two cases affirm or reject the prospects of regionalism for human rights against the backdrop of the current international order (4.). The final chapter provides a summary, draws a conclusion and indicates further fields for debate (5.).
2. Framework
It has already become apparent in the introduction that international human rights scholars regularly fall into two ideological camps (Perry, 1997). However, while both positions principally disagree about the scope of human rights, they actually cover a wide range of different views and opinions. Paradoxically, both camps actually seem to strive for the same goal, the protection of basic human rights, but advocate different ways to achieve it. It is necessary to carefully consider the underlying arguments of both positions to avoid any misunderstandings. The following chapter provides a summary of the main positions before the focus is shifted towards the existing regional human rights systems.
2.1. Universalism and Relativism
It is necessary to look at the universal side of the spectrum first. Human rights come with a moral commitment to hold value for every person (Ernst 2012). It is reflected in the title and the language of the Universal Declaration of Human Rights (UDHR). Essentially, this commitment entails that every person, irrespective of their gender, sex, race, religion and even moral beliefs, is entitled to the same basic rights and freedoms.
During the last decades, the Universal Declaration has served as a touchstone for the continuous expansion of human rights around the world (Alston & Goodman 2013). The modern human rights body is centered around the International Bill of Rights, which, in
addition to the UDHR, contains the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966).
Additional instruments have supplemented the doctrine (ibid.). They cover a large range of issues, from racial and gender discrimination (ICERD, 1965; CEDAW, 1979), protection from torture, children’s rights and the rights of migrant workers (CAT, 1984; CRC, 1989; ICMW, 1990) to the rights of disabled persons and protection from enforced disappearances (CRPD, 2006; CED, 2006). Each treaty is supported by a commission. There are several UN organs involved in overseeing the implementation and adherence of human rights, such as the Human Rights Council, the Universal Periodic Review and the Office of the High Commissioner for Human Rights.
The increasing expansion and substantiation of human rights seem to indicate a growing acceptance around the world. International human rights law has nearly reached universality. In 2012, six of the core human rights treaties had an 88 percent ratification rate without systematic patterns of deviation (Donnelly 2013, p. 94). All these developments have made human rights a central point in world politics.
However, there are also some signs that undermine this perceived universality. Transnational disagreement on the content of human rights does exist. This is reflected in the separation of the international covenants into two disparate documents (Robbins 2005, pp. 287-292). Advocates of this solution argued that the distinction between the political and social rights was justified under the aspect that the former were absolute and justiciable, while the latter were only aspirational. A position that has been imbedded in the respective Articles 2 of both covenants (ibid., p. 288). Opponents of the split, however, feared that it would lead to a hierarchy between the two categories, where one would have predominance over the other. The differences in treatment were reflected in the names of the supervising bodies of each covenant. The ICCPR is overseen by the ‘Human Rights Committee’, while the ICESCR is overseen by the ‘Committee on Economic, Social and Cultural Rights’ (ibid., p. 290). Civil and political rights were subsequently entitled ‘first generation rights’, while social and economic rights became ‘second generation rights’.
During the 1970’s, there had still been an attempt to put material equality on the international plane when a group of states proposed the New International Economic Order (Moyn 2018, pp. 113-118). However, the plans never materialized and the ideal of economic equality faded with the rise of neo-liberalism. The predominance of political rights has subsequently given international human rights a particular shape. While they have been able to
secure tremendous successes on status equality, throughout time the issue of (distributive justice has disappeared from the agenda. It could be argued that human rights have only been about sufficiency, not about equality (ibid., p. 3).
Strong universalism becomes troubling whenever it represents only the interests of a particular portion of the world’s societies. Former colonies achieved independence in the time period after WWII. While this included political freedom and opened the way for national self-determination, dependency continued to exist on other levels (Getachew 2019, pp. 14-36). In the current situation, the argument is formulated in the context of post-colonialism where the UN is seen as a Western organization. Powerful nations and their governments can make use of this organization to promote their own ideals globally. Global discourses are shaped by asymmetrical power relations and human rights undermine local autonomy under a cloak of ‘well-intended humanitarianism’ (Mutua 2001). According to this worldview, the affluent nations of the West help the misguided societies in the developing world with resources and knowledge. Universalism, if conceived as a totalizing doctrine, is worrisome for cultural diversity and challenges the autonomy of individuals and peoples (ibid.). Historical episodes of imperialism and colonialism are the daunting proof of this danger.
Following these remarks some form of relativism seems necessary to encounter the pitfalls of universalism. Just like the universal end, the side of relativism merits some detailed attention as well. It seems to be an empirical fact that cultures vary. People from different regions speak different languages, wear different clothes and display different customs. But not all differences are important for the discussion on human rights. Whether someone prefers to eat bread or croissant for breakfast is clearly irrelevant. The question at stake is essentially one about morality. Do moral systems vary between cultures? What is the scope of these differences? And what exactly characterizes the particular differences?
Cultural relativists have made different claims against universalists. ‘Anthropological relativism’ has taken a strong stance with regard to cultural variance (Perry, 1997). Based on their research and scientific methods, anthropologists found that culture was the most important factor in determining the worldviews and morals of agents. Every person is subject to processes of socialization and enculturation. Because norms are so strongly related to culture, the possibility of transcultural standards becomes questionable from this perspective.
‘Epistemological relativism’ has taken the skepticism even further when it claimed that human morality is the exclusive product of culture (Zechenter 1997, pp. 323-327). This position combined the emphasis on cultural differences with a general skepticism towards objective
truths. Human nature was understood as tabula rasa and would take its concrete form only in the context of personal experiences. In this sense, epistemological relativism held that whatever a culture thinks is right is right. From this standpoint it would not just be difficult, but completely impossible to come to a universally shared moral.
However, relativism is equally troubling when it takes an essentializing stance. It is necessary to retain the possibility to voice criticism within a culture. Tradition can be used to serve as legitimation for discrimination and human rights violations. Where social norms function as a power basis to control those who are marginalized within a community, tradition can be deployed by powerful elites to secure their status quo (Higgins 1996). Under certain circumstances it is also necessary to criticize the culture of others. For instance, whenever one culture threatens the existence of other cultures, it would be hideous to support it based on the idea that other cultures cannot be judged. Clearly, ‘anthropological relativism’ had in mind the protection from colonialism and did not support the actions of Nazi Germany (Cowan, Dembour and Wilson 2001, p. 34).
Transcultural standards could also be justified from a functional perspective. Most societies today make use of similar institutions, like nation states and markets (Donnelly 2013, p. 96-97). More specifically, they rely on executives, militaries, police, taxation, legislation, courts, etc. These institutions pose standard threats to the societies that deploy them. An all too powerful state would likely undermine the freedom of its citizens irrespective of cultural differences. A market without boundaries produces inequalities in every context. As institutions they have inherent problems, which have to be remedied everywhere.
In light of the previous remarks on relativism, the relationship between human rights and culture takes on a paradox form (Cowan, Dembour and Wilson 2001). On one side, human rights need to challenge various existing traditions to guarantee basic rights and freedoms. Recall that slavery and gender inequality were once perceived as part of tradition. On the other side, they need to incorporate local values for reasons of legitimacy and practicality. It is necessary to incorporate space for local autonomy and human rights are more likely to be effective if they are based on local customs and traditions.
The elaboration of both sides shows that positions on universalism and relativism are troubling whenever they take an essential stance. If they are taken as absolutes, they bear the danger to override the other and reconciliation between the goals of equality and diversity becomes almost impossible. This undermines the effectiveness of human rights on both sides. Nevertheless, both sides also contain at least some important claims. Because of these
characteristics, it is necessary to refrain from a strict dichotomy. Instead, a full account of human rights would ideally consider aspects from both ends of the scale. It is necessary to elaborate more clearly how human rights are universal and how they are relative (Donnelly 2013, p. 93).
Take the universal side. Some certain crimes are considered ‘bad’ in most cultures around the world. Even though people around the world hold many different beliefs or justify their ideas on varying grounds, they can probably all agree that the most severe crimes like murder, torture, genocide or slavery are a violation to basic human rights. In this way, different moralities organically lead to an overlapping consensus on the most horrendous crimes. Articles 3 to 12 in the universal declaration are articulated sufficiently clear and could serve as a yardstick for this position (Donnelly 2013, p. 100).
Apart from the ‘very universal’ norms human rights should probably take a narrower scope. In this view, they only holds a thin normative function (Walzer 1987, p. 23). Human rights are not equal to morality per se but only pose a specific subset of morality. The bulk of human rights is actually formulated on a high level of generality. Many rights are embedded in abstract concepts like dignity, equality or liberty. Hence, although universality could be claimed on some grounds, the content of many basic rights should be interpreted and implemented with due consideration of historical and cultural influences (Donnelly 2013; Alston & Goodman 2013). This means that there is space for a certain relativism. Two examples can help to illustrate this point.
Freedom of expression, for instance, is a very fundamental human right, but it can be substantiated within very different arrangements, which reflect distinctive historical circumstances (Mullender 2003, pp. 78-80). Whereas the United States give particular significance to the freedom of expression, this right has been limited in other nations. In Germany the constitution limits freedom of expression in order to ensure that it may not be used to violate the rights of others (Grundgesetz, Art. 18). This limitation is based on the experiences of the Weimar Republic where the NSDAP made use of extensive freedom to express their illiberal propaganda. The limitation leads back to a specific historic experience and is justified because the curtailment of a specific aspect guarantees the full protection of the right. However, it does not inevitably mean that the US needs to follow the same scheme.
Another case could be made wherever conflicting aims arise within the vast body of human rights (Ernst 2012, pp. 244-246). Many different values can be achieved within society and sometimes they conflict. Personal security and liberty are both desirable, but to some degree they are mutually exclusive. In order to achieve one, it is necessary to limit the other and vice
versa. Although it is not desirable to live without both, within certain limits there is a tradeoff. Often enough these decisions are not the result of rational evaluations or public deliberation, but they simply figure in the social-historical context of a society.
To affirm that human rights are both universal and relative does not solve the underlying problem entirely. It is clear that essentializing positions should be avoided, and theoretical efforts can help to mitigate tensions. But normative theory can rarely lead to overall agreement, especially when it comes to the smallest details. Abstract reasoning can only go a limited way and what it leaves up for dispute could often enough be considered a ‘grey area’ (Bell 1996, p. 642). Not all issues can be covered a priori because they come up within the complex empirical reality. The ‘right’ answer could vary within different empirical contexts.
This problem is even increased if one considers the diverse character of human rights (cf. Beitz 2011, pp. 29-31). The doctrine covers a vast amount of relationships, concerning the individual, the state, different social groups or whole societies, which reaches far beyond the minimal core. Given the current social and economic conditions of some societies, it may not be possible to satisfy all rights immediately. Finally, human rights are not static but have evolved (and perhaps will continue to evolve) throughout time. Hence, while political philosophy can be used to enrich the understanding of the underlying conflict between universalism/ relativism, it has only limited capability to resolving the wide range of issues (Mullender 2003).
The review of the theoretical debate already entails some basic arguments in favor of regional institutions. It seems adequate to believe that human rights should contain insights from both universal and relative positions. Moreover, the theoretical indissolubility of the above-mentioned ‘grey area’ seems to necessitate practical institutional arrangements that can deal with human rights issues within the local context. Therefore, it seems positive that the conflict has been encountered with the establishment of regional human rights systems. The subsequent chapter reviews the existing institutions in Europe, the Americas and Africa to see how they contributed to the protection of human rights.
2.2. Established Regional Human Rights Systems
At the outset, it should be noted that all of the regional systems share a similar institutional design. According to the definition of Shelton & Carozza, a regional system consists of “(1) a list or lists of internationally guaranteed human rights, (2) a statement of duties of states parties, (3) permanent international institutions and (4) compliance and enforcement procedures (2013,
p. 11).” Despite these similarities in appearance, they also have important differences based on local specificities. Regional, historical and political factors have shaped the systems in particular ways. To get a better understanding of the similarities and differences, the three systems will be reviewed in more detail in this chapter.
The European system was the first to establish a functioning regional human rights institution. Under the Council of Europe, ten ‘like-minded’ governments came together to promote European values, democracy and the rule of law. These values were codified in the European convention in 1953. The move was a reaction to the international stalemate on human rights. Subsequently, the documents put special emphasis on democratic values. This focus was aimed to boost human rights protection after WWII where Europe had been the center stage of mass atrocities, but, at the time, it also posed a counterreaction to the neighboring Soviet Union, which had decisively different values (Alston & Goodman 2013, pp. 889-896).
Throughout the following years, the initial commitment was significantly extended. The convention was supplemented by the European Social Charter in 1965, which included social and economic rights. Eleven additional protocols were adopted, covering procedural matters as well as additional rights. Since the beginning, membership was further extended to former countries of the Soviet Union, such as Russia or Azerbaijan, so that the Council of Europe today comprises a total of 47 states (Shelton & Carozza 2013, pp. 13-25).
The European system was the first organization to establish a complaint procedure and an international court, which could effectively determine and rule human rights. Even today, with the European Court of Human Rights, it is often perceived as the most effective regional system (Heyns & Killander, p. 683-689). The court grants access to individuals and has the competency to make binding decisions. Overall, with its emphasis on democracy, and civil and political rights, the European system is based on a Western, liberal and highly legalized approach to human rights (O’Sullivan 1998, p. 35).
The American region had a much longer tradition of international cooperation, which reached far into the 19th century (Shelton & Carozza 2013, pp. 52-55). Prior to WWII, the
Pan-American Union negotiated numerous treaties, which concerned a range of topics, including nationality, peace, women’s and children’s rights. American states also played a vital role in implementing human rights in the Charter of the UN. The drafting and signing of the non-binding American Declaration of the Rights and Duties of Man had even preceded the drafting process of the Universal Declaration (Alston & Goodman 2013, pp. 978-1024).
Despite the long history, it took considerably longer for the organization to establish a framework for the implementation of human rights (Heyns & Killander 2013, p. 677). In 1948
the Pan-American Union was replaced by the Organization of American States. In 1959, the Inter-American Commission on Human Rights was set up as an autonomous body. To substantialize the professed norms of the 1948 American Declaration, the organization adopted the legally binding American Convention on Human Rights in 1969. The phase of institutionalization coincided with a time period where South America was characterized by large scale violations against human rights. South America had been comprised of military regimes and intra-state conflict. States of emergency occurred regularly, domestic judiciaries were often weak, and large-scale issues like torture, disappearances and executions took place (Alston & Goodman 2013, pp. 978-1024).
This explains why the American enforcement mechanisms, despite some superficial similarity to the European, developed quite differently in praxis (Alston & Goodman 2013, p. 983). Today the American system is characterized by a dual institutional structure. At the center is the American commission, which has quasi-judicial powers and takes on promotional and monitoring activities. The Commission has a broad, open-ended mandate which allows it to take a leading role in combating wide-spread violations. In the American system, it is the Commission that gives out recommendations in case of rights violations and only if states fail to comply, the cases are referred to the American Court. In terms of values, however, the American system is still close to its European counterpart because it also promotes a Western, liberal approach to human rights (O’Sullivan 1998, p. 36).
The African system emerged much later than the other two regional systems. Its inception became a topic during the 1960s when self-determination was a part of the human rights agenda for the first time. Inspired by pan-African streams, the Organization of African Unity was founded in 1963. Its initial context was coined by the end of colonialism and newly established national sovereignty. The charter of the organization specifically pointed out unity and solidarity among African States as one of its goals. However, new independence also gave rise to dictatorships, military rule or one-party systems. The African system also had to deal with large scale violations, including genocide and apartheid. These structural factors initially posed a challenge (Alston & Goodman 2013, pp. 1025-1044; Shelton & Carozza 2013, pp. 73-87).
A normative foundation was finally laid out with the adoption of the African Charter on Human and Peoples’ Rights (or ‘Banjul’ Charter) in 1981. The Charter went into force in 1986, and subsequently the African Commission was tasked with promotion, protection and the interpretation of human rights norms. An additional protocol to establish an African Court for Human Rights was adopted in 1998 and became operative in 2004. With a functioning
commission and court, the institutional design did not include significant innovations to the other two regional institutions (Alston & Goodman 2013, pp. 1025-1046).
However, the African system stands out for the distinctive norms that are protected under the Banjul Charter (Heyns & Killander 2013, pp. 679-683). As opposed to the global and other regional levels, the document includes numerous additional provisions based on distinct African values. Within African tradition the individual gains identity through the community. Social harmony and the preservation of the fabric of life have primacy over individualism. The context emphasizes mediation, conciliation and consensus, rather than individualistic adjudicative principles. Consequentially, the ‘Banjul Charter’ recognizes the rights of individuals and peoples. It holds references to rights and duties. In addition to civil and political rights, it contains both socio-economic and ‘solidarity’ rights (such as development, peace or environment). It should be emphasized that, while the Charter contains theses strong regional influences, the extended catalogue is nonetheless in accord with the core global human rights treaties (O’Sullivan 1998, pp. 37-39).
The above-mentioned features reaffirm that all regional systems contain elements of uniformity and diversity. On one side, the regional systems have had similar development paths, and principally share the same organizational structures. However, while making use of the same institutions, the systems show a sufficient amount of diversity in their approaches to human rights. The underlying values and principles differ across the regions. Each context incorporates different schemes for interpretation. Moreover, the enforcement mechanisms of the three systems have been adjusted to regional particularities.
How exactly do they contribute to human rights protection? Overall, there are two layers within regional human rights systems. One refers to a normative dimension – the norms and values that are promoted by the organization – and the other refers to an instrumental dimension – the institutions and mechanisms that are set up to promote and/ or enforce these values. Drawing on this hybrid character, regional systems can potentially enhance global human rights protection in two ways: within the normative dimension, they can add to the existing norms and values and within the functional dimension, they can increase norm enforcement (Zerrougui 2011).
There are different ways how regional systems add to global norms and values (cf. Alston & Goodman 2013, p. 890; Saldanha Kroetz 2016). They contain a specific interpretation of human rights, which increases the legitimacy of global standards in the regional forum. Regional courts and commissions set these norms within their official documents and through
judicial and quasi-judicial rulings. As the African documents demonstrate, this has helped to diffuse international norms within the context. Moreover, regional commissions have the ability to observe local norm violations more closely. The American system was the first to identify and codify forced disappearances and violence against women (Heyns & Killander 2013, p. 678). Thus, in reaction to local problems, regional systems can also become a source of innovation.
There are multiple ways of how regional systems can increase human rights protection as well (cf. Alston & Goodman 2013, p. 890; Saldanha Kroetz 2016). In difference to the global level, regional institutions have established complaint mechanisms. The European Court of Justice is the prime example, but all systems contain procedures to take up, rule and remedy in cases of inter-state litigation or complaints by individuals. Their institutions have the competency to sanction state behavior and to give out binding recommendations. Not only do the regional systems have stronger means to enforce human rights, they can also do it in a more adequate way. Because of their close proximity, regional commissions and courts may actually be in a better position to understand, assess and rule conflicting demands with sensitivity to the context. This was most evident in the work of the American commission during the 1970s. Today the systems play a vital role in data collection and information dissemination, whenever they conduct country reports, on-site observations and country visits.
It has become clear that regionalism contains many prospects for human rights. All of the systems acknowledge the importance of universal human rights as a starting point for their regional engagement. They adapt global aspirations with the positive intention of implementing them within the regional arena. Seen as an extension to the global, where universal agreements serve as a starting point and are reinforced through regionalism, the existing systems provide much reason to believe that they can mitigate tensions between universalism and relativism and thereby lead to a strengthening in human rights protection. It is no surprise then, that the international community has made various calls to extend regionalism into other locations.
3. Expanding the Regional Approach
The expansion has been somewhat complicated by the fact that the term ‘region’ is not clearly defined. States form regional associations on the basis of arbitrary perceptions of a community. Regional organizations may deviate from ‘official’ or geographical’ demarcation. Currently, there are no regional human rights institutions in the Asian-Pacific region and various organizations could take on the task of setting up new mechanisms (cf. Vasak & Alston
1982, pp. 451-455; Hashemi 2009; Alston & Goodman 2013). The Organization of Islamic Conference (OIC) and the Commonwealth of Independent States have hinted at the establishment of such institutions. Other regional organizations like the South Asian Association for Regional Cooperation or the Pacific Islands Forum could be considered as well. However, while they have indicated some interests in human rights, the efforts have usually focused on cooperation rather than integration, and none of them have taken substantial steps.
This raises the interest in the two regional IGOs which are subject of this paper. During the past two decades, the efforts of the League of Arab States (LAS) and the Association of Southeast Asian Nations (ASEAN) have taken more significant steps towards the establishment of regional systems (Heyns & Killander 2013). Within the following two chapters, these efforts will be reviewed in more detail. From the previous review it has become clear that the context plays an important role. Thus, the chapters describe as detailed as possible the underlying contextual traits of the Middle East and Southeast Asia. Both cases provide information on basic structural features, the history of the regional IGO and contextual values.
Wherever possible the examination draws on official documents. Among the included sources are statutes, treaties, rules of procedure and official reports. Where necessary, additional information was drafted from news agencies and NGO reports. For reasons of clarity these primary sources are indicated in footnotes. Apparently, the access to documents was somewhat limited in the case of the Arab League because the Arab system only publishes its documents in Arabic – a fact that has previously been noted (Magliveras 2017, p. 42). In these cases, it was necessary to draw on ‘unofficial’ interpretations or secondary sources to gain access to information (i.e. by universities, scholars and think-tanks).
On the basis of this broader context, the chapters seek to evaluate the regional documents and mechanisms. The cases are particularly interesting with regard to universalism/ relativism because the regions have previously held hostile positions towards human rights. Interregional tensions or great cultural diversity pose further obstacles. The examination begins with the Arab region, before attention is directed towards Southeast Asia. The findings will be discussed jointly in line with the broader literature on human rights in chapter 4.
3.1. The Middle East
The League of Arab States consists of 22 member states.1 Geographically, the Arab region
stretches across Africa and Asia. Membership within the League of Arab States, however, is not strictly based on geographical characteristics. Article I of the Arab Charter states that ‘any independent Arab state has the right to become a member of the League’.2 This membership
criterion indicates a common identity as Arab nations, which seems to be stronger than ties to both African and Asian influences. Because the criteria which constitute an Arab state are not defined within the League’s charter, there have been some arbitrary elements within the admission of members. Djibouti and Somalia are part of the organization, while Turkey, despite local proximity, is not.
The region can be further described in structural terms. Overall, it covers a population of approximately 395 million people.3 Egypt has a large population with more than 90 million
inhabitants, whereas Comoros has less than a million. Within the region are some of the wealthiest nations, such as Saudi Arabia, Kuwait, Qatar and the United Arab Emirates, but also some of the poorest, like Mauritania, Somalia or Sudan. There are also significant differences in the political systems of member states. Most of them are presidential republics, but at least eight have monarchies as political system. In the aftermath of the Arab Spring, the status of two countries is currently unclear (Yemen and Libya). This indicates robust structural differences between the member states of the Arab League.
The geopolitical context has also been marked by (inter)regional conflict. The region has experienced foreign occupation, there has been a continuous suffering from refugees, and there have been chronic struggles with national, religious or sectarian minorities (Din Hassan 2003, pp. 239-241). The most substantial historical event has probably been the Israel-Palestine conflict. Notable is also be the Gulf War in 1991 and the US-led intervention in Iraq in 2003. Many of the countries have a background of colonization and have been skeptical of supra-national intervention. These factors could explain a perceived mistrust of Arab nations in international politics (ibid.).
1 The 22 members of the Arab League are (in alphabetical order) Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan,
Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen. In addition, there are four observer states: Eritrea, India, Brazil and Venezuela
2Arab League 1945, Charter of the league of Arab states, ETH Zürich. Available from:
<https://www.files.ethz.ch/isn/125350/8005_arableaguecharter.pdf> [June 2019].
Formal acceptance of international treaties is high among the member states.4 All
countries have ratified the conventions concerning racial discrimination and the rights of children. At least 20 states have ratified CRPD and CEDAW, and 19 have ratified CAT. These high rates of acceptance are somewhat undermined by other observations. For instance, four countries, Comoros, Oman, Saudi Arabia and the United Arab Emirates, still need to sign the two international covenants. Moreover, the ratification of treaties has sometimes been accompanied by reservations or derogation clauses. Saudi Arabia has put a general clause against the implementation of CEDAW, wherever the treaty conflicts with national Shari’ah law.5
However, against structural differences and (inter)regional hostilities stands a common identity as Arab nations. The states pose a supra-national community with a distinct history. Arab identity and religious affiliation unify the diverse Arab nations. This cultural backdrop makes the area a unique region within the world.
3.1.1. The League of Arab States and Arab Values
The League of Arab States is the oldest of the regional organizations, which were founded at the end of WWII (Boutros-Ghali 1982). It was established in 1945 by seven founding members (Jordan (then Transjordan), Syria, Iraq, Saudi-Arabia, Lebanon, Egypt and Yemen). The purpose of the organization was to strengthen relations between these countries, to increase mutual collaboration and to safeguard independence. The supreme organ of the organization is the League’s Council, which meets on different levels.
The League’s Charter sets out six fields of cooperation, including economic and financial affairs, communications, cultural affairs, nationality, social affairs and health affairs. The organization has established different commissions within these fields, which give recommendations to the council. The League of Arab States also cooperates internationally (ibid.). In 1950 the UN recognized the Arab League and invited the Secretary-General as an observer to the General Assembly. In 1954 the League established permanent representation in New York and two years later in Geneva.
4 OHCHR n.d., UN treaty body database, Available from:
<https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx>. [10 June 2019]
55 Rishmawi, M, Kayyali S. & Saleh E. 2015, The League of Arab States. Human Rights Standards and Mechanisms, Open
Society Foundations and Cairo Institute for Human Rights Studies, p. 75. Available from:
<https://www.opensocietyfoundations.org/reports/league-arab-states-human-rights- standards-and-mechanisms> [13 May 2019]
However, the supra-national character of the League has been constantly challenged by claims of national sovereignty. This is visible in the League’s Charter.6 Article II states the
purpose of the organization as ‘the strengthening of the relations between the member-states, the coordination of their policies in order to achieve co-operation between them and to safeguard their independence and sovereignty’. There is no reference to the Arab peoples, and national sovereignty is given high importance. Collaborative action has also been undermined by a provision in Article VII, which establishes that ‘majority decisions shall be binding only upon those states which have accepted them.’ Common decisions have limited effect if they are not binding for all members. These provisions generally indicate that Arab states had little intention to establish a strong supra-national institution. Cooperation in certain areas was welcome, but national sovereignty was regarded more important.
Subsequently, historical attempts to establish a regional human rights mechanism were restricted (Boutros-Ghali 1982; Din Hassan 2003). The League’s Charter did not make any references to human rights initially and the organization took its first steps only during the 1960s. After calls from the United Nations to increase regional cooperation, in 1968 the League held a regional meeting in Beirut, Lebanon and subsequently established the Arab Standing Committee on Human Rights (ASCHR). This Committee was institutionalized as a subsidiary organ of the LAS and was composed of representatives of the League. Unsurprisingly, it did not produce significant results in the subsequent years. Critics argue that the body was mainly set up to pose a platform to criticize Palestinian occupation (Din Hassan 2003, p. 241).
The hesitancy to embrace a regional human rights institution could have been connected to a conflict within underlying norms and values. While the regional Islamic views have a unifying function for the member states, they have often posed a challenge to human rights. While Islam primarily poses a form of ethical guidance and, like any other normative doctrine, entails various sources and reference points for interpretation, it is often implemented under Shari’ah law (Mayer 1991; Bielefeldt 2000). In practice, conflict with human rights arises wherever the Shari’ah is interpreted from a traditional or fundamentalist perspective and whenever it is taken literally to establish politically enforceable regulations.
The emancipatory character of human rights conflicts with Islam on different levels. There are some general problems. Conflict between Islam and human rights is not surprising, given the fact that both doctrines have been established during different historical episodes. Human rights are the product of the last centuries, whereas the Shari’ah was formed during the
first centuries of Islamic history (Bielefeldt 2000; Donnelly 2013, p. 79). Furthermore, the term Islam literally translates as ‘submission’. The religious grounding gives primacy to divine revelation and indicates a strong emphasis on duties and obligations, rather than individual autonomy (Mayer 1991).
There are also more specific areas of contention. The relation between Muslims and non-Muslims is a case in point. Even modern Islamic interpretations hold that Muslims should strive to live under Islamic law, and that they would not be eligible for social and political solidarity with non-Muslims (March 2007, p. 236). Other contentious issues contain gender equality, religious freedom, citizenship and corporal punishment (Bielefeldt 2000).
The conflict potential has been visible in previous Islamic human rights documents. The Cairo Declaration on Human Rights in Islam, drafted by the OIC in 1990, is a case in point (ibid.). Concerning the right to life, Article 2 (a) states ‘[…] it is prohibited to take away life except for a Shari’ah prescribed reason.’ A similar statement is voiced in Article 2 (d) with regard to bodily harm. Shari’ah law can serve as a legitimation for the death penalty and corporate punishment. Furthermore, Article 5 (a), provides that ‘[…] no restrictions stemming from race, color or nationality shall prevent […]’ the enjoyment of the right to marriage. The omission of religion in this paragraph, would effectively allow Islam to place constraints on the right to marriage.
3.1.2. The Arab Charter and its Committee
Reluctance towards regional integration and normative conflict with human rights undermined the development of a regional institution during the last decades. However, in the beginning of the 21st century signs of change became visible within the LAS. Together with then
Secretary-General Amr Mousa, the League’s Council proposed a modernization package to bring the organization up to modern standards (Rishmawi 2005, p. 362). It contained multiple innovative ideas, including a mechanism to manage inter-Arab disputes. The efforts were supported and further heightened during the Arab Spring in 2011.7 Many protesters raised the issue of human
rights to be taken into the heart of the League’s mandate and its institutional structures. Some of the member states acceded to international human rights treaties during this time period.
7 See Hamd, V 2016, ‘Reflections on Human Rights Understandings in light of the Arab Spring’, The Hague Institute for
The modernization efforts inspired some concrete amendments.8 For instance, the
League’s Charter was modified to establish an Arab Parliament. The objective of the new body is to give the people in the Arab world a greater voice in the League. The Parliament has no concrete power, since it is neither mandated to draft nor to ratify legislation. However, it is allowed to hold debates and make recommendations and is entitled to question the Council of the League.
There have also been subtler signs for an increased emphasis on regional cooperation. In 2011, it was the first time for the League to take serious measures against one of its own members when it supported a no-fly zone over Lybia, backing the deployment of NATO forces.9 Additionally, the LAS sent a fact-finding mission to Syria and later expelled the country
from membership over its radical suppression of political opposition.10 Last but not least, in
2019, the first EU-Arab Summit was held in Sharm el-Sheikh, Egypt.11 The thematic range
concerned issues like multilateralism, trade, migration, security and the current situation in the region.
Many of the proposed changes to modernize the LAS did not materialize in the aftermath of the Arab spring. However, the increased efforts have led to advancements of regional standards and procedures in the field of human rights. In addition to the 1968 Committee, the Arab regional human rights system now comprises the 2004 Arab Charter of Human Rights (ACHR) and the Arab Human Rights Committee (AHRC), which monitors the implementation of the rights set out in the Charter. There are also plans to set up an Arab Court for Human Rights, but they have not yet been substantialized. The remaining paragraphs of this chapter contain a review of the assets and drawbacks of these institutions before a preliminary conclusion is drawn.
In 2003 the Arab Standing Committee on Human Rights was tasked to draft a new human rights charter, after all of the previous ones had not received any ratifications (Rishmawi 2010). In cooperation with the High Commissioner for Human Rights, the LAS appointed seven experts from Arab countries to develop a draft. It was a significant improvement to include independent experts. However, while the group presented a document that was largely
8Rishmawi, M, Kayyali S. & Saleh E. 2015, The League of Arab States. Human Rights Standards and Mechanisms, Open
Society Foundations and Cairo Institute for Human Rights Studies. Available from:
<https://www.opensocietyfoundations.org/reports/league-arab-states-human-rights- standards-and-mechanisms> [13 May 2019]
9 BBC 2011, Arab League backs Libya no-fly zone. Available from <https://www.bbc.com/news/world-africa-12723554>
[06 June 2019].
10 CNN 2012, Arab League monitors to report on Syria, negotiate mission extension. Available from:
<https://edition.cnn.com/2012/01/19/world/meast/syria-unrest/index.html> [10 June 2019].
consistent with international standards, the Council of the LAS made fundamental changes and deleted some important provisions prior to its adoption (Zerrougui 2011).
The final document contains both positive and negative features with regard to standards (Rishmawi 2005). Overall, the Charter covers a broad range of rights, which are not split into subsections (cf. Appendix I). In total, it contains 43 rights over different domains, including civil, political, economic, social and cultural rights. Additionally, it contains specific provisions relating to women, children and the disabled. The preamble notes three underlying sources as normative guidance for the document. The first, and perhaps most important, reference is made with regard to religion and, more specifically, to Islam. The first paragraph refers to God and the second one highlights ‘the noble Islamic religion and the other divinely-revealed religions.’ Moreover, the Charter refers to, the Cairo Declaration on Human Rights, another Islamic human rights document. Secondly, the charter mentions the faith and unity of the Arab nation. Paragraph three states: ‘Being proud of the humanitarian values and principles that the Arab nation has established throughout its long history.’ These are clear references to the regional background and its substantive values. Especially Islam is given a predominant position.
However, the preamble also includes references to international human rights. It refers specifically to the Charter of the UN, the Universal Declaration of Human Rights and its covenants. Therefore, the document contains a clear affirmation of the universality of human rights. This continues within the aims of the document, which are stated under Article 1 (1) ‘To place human rights at the centre of key national concerns of Arab States, making them lofty and fundamental ideals that shape the will of the individual in Arab States and enable him to improve his life in accordance with noble human values.’
The different normative sources indicate that both international standards and local values should serve as reference points. The drafters have sought to strike a balance between individual rights and the community. Individual freedom and collective responsibility both need to be considered with regard to human rights. This becomes clear in Article 1(2) which contains the objectives of the Charter, and demands to ‘prepare new generations in Arab States for a free and responsible life in a civil society that is characterized by solidarity, founded on a balance between awareness of rights and respect for obligations, and governed by the values of equality, tolerance and moderation.’ All of these provisions give the document a regional specificity, whilst reaffirming universal human rights.
On a positive note, it should be acknowledged that the Charter protects a number of important rights. Various articles set out civil rights, such as non-discrimination (3), right to life (5) and prohibition of slavery (10). There are at least 12 articles which regulate the rule of
law, a fair trial and humane detention. Economic rights include a right to social security (36), standard of living and a healthy environment (38) and the right to physical and mental health (39). Social rights maintain a right to education (41), a right to culture and science (42).
Noteworthy is also Article 4, which is devoted to derogation from the declaration under a situation of emergency. The article specifies the conditions under which it would be legitimate to make use of this clause. Some Articles, including the right to life, the prohibition of inhumane treatment and the right to a fair trial, are exempted from derogation. These provisions are important in the regional context because they could be invoked as minimal principles in the various situations of conflict that pertain within the region.
In a variety of cases, however, the Arab Charter also sets out lower standards or holds conflicting positions in relation to international treaties or resolutions. A contentious issue is gender equality. The charter is written with the use of a masculine pronoun. A specific example is enclosed under Article 26, which allows ‘[e]veryone […] the right to freedom of movement and to freely choose his residence […] in conformity with the laws in force.’ Saudi Arabian legislature, for instance, restricts the freedom of movement of women with reference to Shari’ah law (Rishmawi 2005, p. 367). The charter fails to address this issue.
Moreover, the document maintains different categories of groups: all people (i.e. everyone/ no one …), citizens of contracting parties (i.e. every citizen has the right to…), persons residing within the territory without a distinction of nationality (i.e. every person has the right to…) and persons that have specific attributes (i.e. persons belonging to minorities…) (Magliveras 2017, p. 36-37). These formulations differ from other regional and international treaties and pose a problem whenever they limit the enjoyment of basic rights to citizenship. The distinction could be affiliated with various Islamic doctrines that draw a difference between Muslims and non-muslims (March, 2007). This categorization even gains in relevance, given the fact that there are many refugees and migrant workers in the region – both historically and currently.12
In a few additional cases, the charter fails to challenge national provisions or allows national law to override its standards. For instance, Article 30 (1) states that ‘Everyone has the right to freedom of thought, conscience and religion and no restrictions may be imposed on the exercise of such freedoms except as provided for by law’. In comparison, the International Covenant on Civil and Political Rights, in Article 18, does not pose restrictions on freedom of thought or conscience, but only limits the freedom to manifest one’s religion.
12 The Guardian 2018, Qatar migrant workers are still being exploited, says Amnesty report. Available from:
https://www.theguardian.com/football/2018/sep/26/qatar-world-cup-workers-still-exploited-says-amnesty-Another contentious issue pertains with regard to corporal punishment. Article 8(1) obliges States to ensure protection from physical or psychological torture or cruel, degrading, humiliating or inhuman treatment. Thereby, the article omits protection from cruel punishment (Rismawi 2005, p. 367). Alarming is Article 7(1), which states that ‘Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime’. In some member states, the death penalty can be imposed on minors. At the time of writing, the Saudi Arabian government was pushing charges against 18-year-old Murtaja Qureiris, on behalf of anti-government demonstrations. 13 Some of
these date back to when he was 10 years old. While the death penalty is controversial within international human rights, it is clearly a violation of human rights when it is used against children.
Lastly, two references to Zionism and foreign occupation are very controversial. The charter puts Zionism on an equal level with racism and calls for its elimination. Obviously, the statement refers to the Israel-Palestine conflict, but the clause is clearly in conflict with international standards. UN resolution 3379 from 1975 had initially held a similar position, but was revoked in 1991 under UN General Assembly Resolution 48/86. The drafters of the Arab declaration were clearly aware of this pretext when they made the statement in the Arab document (Zerrougui 2011).
Many of the above shortcomings could be remedied under Article 43. Where the Arab Charter falls below the obligations of international or other regional treaties, it is trumped by these documents. This means that the provisions, which are lower in the Arab document, do not impede the standards of countries, that have acceded to international treaties or the African regional documents. Furthermore, article 52 opens the path to adapt further optional protocols, which could be used to improve the regional Arab human rights standards.
Overall, the charter poses an improvement to any previous documents because it reaffirms the universality of human rights and contains various important clauses. In some specific cases, however, it still falls short of international standards. These include gender equality, corporal punishment, nationality and Zionism.
In March 2008 the charter had received enough ratifications to become operable. Together with its inception a treaty body was established. The Arab Committee on Human Rights has the task to monitor the implementation of the Charter by states parties, through
13 Washington Post 2019, At 10 years old he protested the Saudi government. Now, at 18, he could face the death penalty.
Available from: < https://www.washingtonpost.com/world/middle_east/saudi-teenager-faces-execution-for-alleged-crimes-committed-as-a-child/2019/06/10/b4b356cc-8b76-11e9-adf3-f70f78c156e8_story.html?utm_term=.9ef9578311ec> [14 June 2019].
consideration of national reports, issuing comments and giving recommendations (Rishmawi 2010, p. 174; Heyns & Killander 2010, pp. 32-33).14 Initial reports have to be submitted within
a year of the Charter entering into force in the state party. Subsequently, periodic reviews need to be submitted every three years, and the Committee may ask for additional information. According to Article 45 of the Arab human rights charter, the Committee consists of seven members who are elected by secret ballot. Members need to be nationals of the states parties and ‘must be highly experienced and competent in the Committee’s field of work.’ They are elected for four years and can be re-elected for another consecutive term.
Article 47 of the Charter guarantees immunity from pressure or prosecution on account of the statements of members during their function as members of the Committee. The commissioners perform their task as individual experts and not as representatives of the authorities. However, the independence of members is somewhat questionable. Unlike UN experts, some of them perform government functions as well. Moreover, every country only proposes one candidate, which puts some limits to the pool of aspirants.
A few provisions have given the Committee at least some autonomy. It has an independent bank account and is allowed to receive funds from other sources than the LAS. Moreover, the rules of procedures were not part of the Arab Charter. The Committee could establish them independently in 2014 (Magliveras 2017, p. 40). The Committee is tasked to provide access to its reports and to disseminate them widely. All of the reports are currently published on the webpage of the League of Arab States. Although access of NGOs is only allowed under the restrictive criteria of the LAS Economic and Social Council, the Committee has welcomed NGO participation. Even though it cannot reference contributions by unregistered NGOs officially, it has considered their reports its evaluation of country reports (Rishmawi 2010, p. 174; Magliveras 2017, p. 42).
Overall, the Committee seems to pose an improvement to human rights protection in the region. But in comparison to the mechanisms from other regions it has some significant limitations. Most importantly, the Arab Committee does not have the authority to receive complaints by individuals or states. And with no real judicial competencies, the Arab commission still poses a rather weak enforcement mechanism in theory and praxis.
Human rights protection could potentially be increased with the inception of an Arab Human Rights Court. The statute of the Arab court was adopted and opened for ratification in 2014. So far, it seems as if only Saudi Arabia has ratified it, but controversial positions exist
whether the Court, in its foreseen form, would meaningfully supplement the work of the Arab human rights committee. 1516 Some of the surrounding factors of the court have been criticized.
Civil society organizations critically observed the drafting process of the statute, which was not made public. Another source of unrest was the proposed location of the court in Bahrain, since the country has not always had a positive human rights record in the past. More substantial criticism rests on the content of the Courts statute (Magliveras 2017). For instance, it is not clear how the court would relate to the Committee or overlapping charters. Moreover, it has been criticized that the court would only allow inter-state litigation. Individuals could not file complaints, and NGOs could only do so if they were registered with a country.
Overall, the documents and institutions should be evaluated against the difficult regional background. In many ways, the Arab Charter poses an improvement to any previous Islamic human rights document. It should be noted specifically that the document reaffirms the universality of human rights. This is important, because it principally demonstrates the compatibility of Islam and human rights. Thus, it seems possible to achieve an overlapping consensus between Islam and the core of human rights (Bielefeldt 2000; March 2007). Human rights become more legitimate in this context. The document has already found much more acceptance among member states than any previous regional document. In 2017 the Arab Charter had 13 ratifications (Magliveras 2017, p. 34). This is a good rate, given the fact that the countries which have not ratified the charter, have already acceded to the African regional system.
However, in terms of concrete provisions, the document still differs from other regional or international levels (Heyns & Killander 2013, p. 693). Problems remain where the charter falls below international standards. Contentious issues remain with regard to gender equality, corporal punishment, the death penalty, political participation and nationality. Moreover, in contrast to other regions, the Arab regional system only provides weak provisions, expressed in the lack of complaint mechanisms. Since contentious issues remain or, at the current stage are inadequately resolved, it would be necessary to advance an institution that could promote regional values more effectively. This could benefit the region directly. Just like in the South American context of the 1970s, a stronger regional commission could engage with the many
15 International Commission of Jurists 2015, The Arab Court of Human Rights: A Flawed Statute for an Ineffective Court.
Available from: < https://www.icj.org/wp-content/uploads/2015/04/MENA-Arab-Court-of-Human-Rights-Publications-Report-2015-ENG.pdf> [06 June 2019].
16 Rishmawi, M, Kayyali S. & Saleh E. 2015, The League of Arab States. Human Rights Standards and Mechanisms, Open
Society Foundations and Cairo Institute for Human Rights Studies, pp. 53-59. Available from:
<https://www.opensocietyfoundations.org/reports/league-arab-states-human-rights- standards-and-mechanisms> [13 May 2019]
conflicts in the region. The Arab Charter expresses this aspect when it recognizes ‘the close link that exists between human rights and international peace and security.’
3.2. Southeast Asia
The Southeast Asian regional organization comprises ten countries17 and covers an estimated
population of 502 million people. The region seems to be much more diverse with regard to culture than the Arab case. Historically, it has been composed of a vast mix of ideological resources (Hooker 1978; Sen 1997). Early modern Southeast Asian states were broadly categorized as agrarian/mainland societies and sea-based or archipelagic kingdoms. Notably, there have been Hindu, Islamic and Chinese legal traditions. Forms of law would include written texts, oral law, laws in social institutions and indigenous adaptations. During periods of colonization, between the 17th and 19th century, the traditional mix was further added and
amended by European traditional influences.
Even today, the member countries sometimes vary sharply in their underlying political organization. Four countries have some form of monarchy as political system (Brunei Darussalam, Cambodia, Malaysia and Thailand). There are four republican states (Indonesia, Myanmar, the Philippines and Singapore). And two of the countries have a communist political order (Lao People’s Democratic Republic and Viet Nam). Differences also exist with regard to national wealth and the development status. Singapore is one of the wealthiest nations in the world and is ranked place 9 in the UN human development index, while Cambodia and Myanmar rank on the places 146 and 148.18
Southeast Asian nations have a mixed record of international treaty ratification.19 All 10
member states have ratified CEDAW, CRC and CRPD. However, there seems to be a split between countries when it comes to overall ratification. Cambodia, Indonesia and the Philippines have ratified 8 of the 9 core documents. Laos, Thailand and Viet Nam have ratified 7 of 9. Against these high rates of accession stands the record of Brunei, Malaysia and Singapore, which have ratified significantly less treaties. For instance, these countries still need to ratify both of the two international covenants. Myanmar has ratified the ICESCR in 2017 but
17 These are Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic,
Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam
18 UNDP 2018, Global Human Development Indicators. Available from: <http://hdr.undp.org/en/countries> [10
June 2019].
