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Liability of State and Non-State Actors in the Asia Pacific Human Rights Court


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The Asia-Pacific region has been a theatre for various wars and conflicts in the 19th and 20th centuries, and has risen from the hardships of events like the Russo-Japanese War, World War II, Korean War, the Vietnam War and the Indo-Pak Wars. These led to the loss of not just millions of human lives, but also a great deal of the rich socio-cultural heritage of various countries that were affected by these aggressions. While the Asian-Pacific states have seen rapid economic development as compared to the previous century, the region is still marred with corruption and ubiquitous human rights violations by both state and non-state actors. Not only does this require strengthening of the domestic legal framework but States in this region also need to actively participate in and contribute to the development of a supranational court, along the lines of the Inter-American Court of Human Rights (IACtHR), the European Court of Human Rights (ECHR) and the African Court on Human and Peoples' Rights (AfCHPR).


While a human rights court in the largest region in the world seems like the need of the hour, its viability has often been questioned. This is because the Asia Pacific region extends from Pakistan in the West to Japan in the East, and from Russia in the North, all the way to Australia in the South. The Australian Council for International Development in a report stated that none of the 40 states in this region would readily agree to identify with the regional identity of the Asia Pacific region. This in Amnesty International’s view is because the political and cultural diversity of the region makes it too complex for everyone to converge into a viable agreement. Even if the States did agree to come together, the Friends World Committee for Consultation felt that the populous nations in the mainland might sweep the small nations in the Pacific, a view which was also shared by Fiji Women's Rights Movement. However, the ubiquitous nature of human rights abuse in the region has led to increased interventions by domestic courts in the region like the recent decriminalization of homosexuality in India, thereby developing their human rights jurisprudence in consonance with the international standards.


Thus, upholding this view, the advancements in international justice in the 21st century are also aimed at creating a regional supranational judicial body, which may prevent the atrocities that happened in the past centuries. In this view ASEAN established the Intergovernmental Commission on Human Rights (AICHR) in 2009, which was the first sub-regional approach. However, it has been working slowly since it is not independent of the States that established it. The ASEAN Declaration still does fully comply with international human rights standards, and ASEAN officials are also known to promote stereotypical views of their local culture to justify restricting human rights, which disregard the international standards and social movements within those nations, Similarly, the Arab charter in its preamble gave a very strong reference to religion which is contrary to the idea of religious neutrality, raising the concern about the content of the Charter and whether or not it will guarantee the protection of rights related to such principles as equality, freedom and justice independently from the stipulations of the Quran and the Sharia. The only prominent success in the region is Extraordinary Chambers in the Courts of Cambodia (ECCC), the first hybrid tribunal legally opened without the UN and based solely on national law, that recreated the Cambodian national legal system from scratch, strengthening it and coping it with the international standards without westernizing the retribution process. Therefore, the establishment of a so-called Asia Pacific Court of Human Rights (APCHR) offers the best hope of developing human rights jurisprudence in the entire region, making it pertinent to figure out if this Court could provide justice not only for violations by states, but also non state actors.


Effect of Counterpart Human Rights Courts on State and Non-State Actors


The Rome Statute of the International Criminal Court (ICC) expresses that State Parties can try crimes if they have such capacity, else referring it to this Court which serves as the center of the global effort for trying all international crimes of the highest level that demand the international community to work as one. The crimes which do not reach the level of international crimes, have to be dealt with by a nation’s domestic framework. However, countries across various continents established supranational courts like the AfCHPR, for people to approach on exhaustion of their domestic remedies as per their respective charters.

The concept of state sovereignty has always been in conflict with the working of international courts like the ICC. In the context of the EU, absolute sovereignty has been compromised since nation states are expected to alter their domestic laws as per the judgements and directions of ECHR. The “Margin of Appreciation” is provided by the European Convention on Human Rights in order to safeguard human rights while respecting national laws to safeguard state sovereignty. Hence, the APCHR should be established with such a regional approach of having representation from each member state, so the sovereignty of states would not be compromised. Moreover, it would increase cooperation among different States in the region by acting as an adjudicator of interstate disputes. Which is of paramount importance given the diversity of this region.

The IACtHR has taken state sovereignty into consideration by having the admissibility of its cases reviewed by a commission appointed by the Organisation of American States (OAS). This is similar to the commission appointed by the African Union (AU) under articles 30, 55(2) and 56 of the AfCHPR framework. The commissioners in these bodies act as gatekeepers of the sovereignty of the respective member states, and decide the merit of cases taken for adjudication and whether a treaty obligation is violated by a state party. Thus, a similar setup could be instated by ASEAN, SAARC and the East Asia Summit (EAS) for backing the establishment of a regional human rights court.


In today’s age, another important aspect is holding non-state actors liable, by increasing corporate accountability for human rights violations. This is because they possess significant de facto economic, financial and institutional power yet they lack any corresponding legal responsibility. In Prosecutor v. New TV S.A.L. & Karma Mohamed Tahsin al Khayat, the Special Tribunal for Lebanon held that corporations are not offered impunity from human rights violations merely because they are a legal person and not a natural person. Drittwirkung or the third party effect, is a legal doctrine in German law used to apply public law provisions such as fundamental rights to private law relations such as contracts. The ECHR has clearly stated that the rights in the Convention create obligations for States for adopting measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. This on applying the Drittwirkung effect of the relevant Convention article, also extends to private sectors, if a state intervention seems to have failed when human rights were violated by a private party. Similarly, the African Commission on Human and Peoples’ Rights in SERAC et al v. Nigeria found that “states have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties.”


The AU furthered its progressive view by a protocol merging the AfCHPR along with the Court of Justice of the AU, stating that this Court shall have jurisdiction over grave international crimes like genocide but also over all legal persons, bringing corporations under its ambit. The IACtHR also issued measures in cases where liability from a state is sought for human rights violations caused by infrastructure corporations.


Conclusion


Establishment of the APCHR should be done with the view to quell problems faced by its counterparts in other regions. If done correctly keeping in mind the diversity of the geo-cultural expanse of this region, it like the ECCC will contribute heavily in the development of human rights rule of law in the region. The court should, unlike the ECHR, ensure that each member state is mandatorily represented by a judge in order to increase its effectiveness and legitimacy. Inspiration should be taken by all member states on how the involvement of Cambodian people helped in the development of the ECCC, which on a regional scale with all nations involved may lead to the successful establishment of the APCHR. Like the AfCHPR it could try various grave international offences like genocide and crimes against humanity, which although might overlap with the jurisdiction of the ICC but would offer lingual and geographical advantages over it. It could further undertake IACtHR’s approach in entertaining cases concerning corporate liability for violations of human rights.


A dedicated human rights court in the Asia Pacific region will have significant advantages, by setting standards for the humane treatment of individuals across the region and resolving inter state disputes, thereby reducing escalations and averting more damage to human rights. Moreover, it will also foster the importance of human dignity and autonomy in citizens, states and corporations, eventually aiming to lower the ubiquitous human rights violations throughout the region. With the AICHR in place and having room to improve, it is still a big step towards the promotion of human rights in the region. And if APCHR is established in a well structured manner, it could deter all violations of human rights, by perpetrators including state and non-state actors.


 

This article has been authored by Pranav Nayar, a fourth year student at Rajiv Gandhi National University of Law, Punjab.

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