The 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms: Challenges and Prospects for Future Human Rights Mechanisms in ASEAN

  • Rachminawati, Universitas Padjadjaran (Bandung, Indonesia)
  • ASEAN Ideas in Progress Series 8/2021

    Centre for International Law

  • 2021

Abstract

Human rights discourse often stray far from any discussions on the ASEAN dispute settlement mechanisms, and vice versa. All ASEAN dispute settlement mechanisms before 2010 have not taken into account human rights disputes. The 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC), to 1996 Protocol on the Dispute Settlement Mechanism (1996 Protocol) and the 2004 ASEAN Protocol on Enhanced Dispute Settlement Mechanism (EDSM 2004) did not take human rights into account. These mechanisms tend to focus on settling economic disputes.

The year 2007 marked a ‘new ASEAN’ with the establishment of the ASEAN Charter. This led to two remarkable achievements for ASEAN. The first was carrying out a mandate to establish a new dispute settlement mechanism that could fill the gap in previous dispute settlement mechanisms and accommodate all types of disputes by adopting the 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (2010 Protocol). The second was the success of carrying out the mandate to create an ASEAN human rights body by establishing the ASEAN Intergovernmental Commission on Human Rights (AICHR). Both achievements show ASEAN’s serious commitment to be a more rule-based organization.

The establishment of the AICHR also shows ASEAN’s serious commitment to human rights. Unfortunately, many serious defects exist within the AICHR, especially the body’s weak mandate and emphasis on promotion rather than on protection. Furthermore, there is still no exact mechanism for how the AICHR can settle human rights cases in the region.
There is good news from the latest ASEAN Dispute Settlement Mechanism, the 2010 Protocol, which allows for human rights disputes to be settled within its framework. This new Protocol gives a more detailed and comprehensive roadmap, including a precise time-frame for each phase. It is believed that the 2010 Protocol will succeed in overcoming the weaknesses of the previous Protocol. Unfortunately, to date, the ASEAN member states have not yet used it.

Research found shows that there is a possibility that the 2010 Protocol can be used for human rights disputes by involving the AICHR in the settlement process. It is also another possibility for AICHR to create its own human rights dispute settlement mechanisms under a new agreement. The nature and advantages of the ASEAN dispute settlement mechanism are in line with the ASEAN way, which offers more opportunity for states to agree on this human rights mechanism’s proposal.

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