Ou Virak Interview, Part III

Ou Virak Interview, Part III

Harvard Human Rights Journal continues its interview initiative with Ou Virak, President of the Cambodian Center for Human Rights and recipient of the Reebok Human Rights Award. In this three-part interview, conducted this past summer, Virak provides his frank and honest assessment of the prospects for political and media freedoms in Cambodia, the issues facing the Khmer Rouge Tribunal, and larger issues of the human rights framework within Southeast Asia.

In this third and final part, Virak discusses the relationship between human rights and the Cambodian government, the ASEAN institution, and the business community.

Interviewer: James Tager, J.D. ‘13

The CCHR works to liaison with different governmental and inter-governmental organizations to promote human rights. How does that process occur? Are we seeing results? Where are the points of tension in working with these groups?

I am supposed to be the main person responsible for the drafting of a law for the establishment of a national human rights institution, or NHRI, in Cambodia. This process was set in motion in September 2006. So we are approximately 5 years into the process, and we still have no law, no establishment of any institution. [Prime Minister] Hun Sen has made, on a few occasions, public statements saying that Cambodia would be the 5th country within ASEAN to have an NHRI. Hun Sen has also said that he wants an NHRI that is in accordance with the Paris Principles, where are the internationally-agreed-upon set of guiding principles for NHRIs.

Despite these public statements, there have been huge problems with trying to push this program. We submitted the first draft for a law establishing the NHRI in 2008, after consultation with many different people including different sectors of civil society. We never received a response. We met with the government afterward, and they told us that they were waiting for a draft from us. So we provided them with a copy of the draft, and they still haven’t responded.

Is the government the only obstacle to the establishment of the NHRI?

I think that there is a lack of concerted efforts by civil society actors, also. Some people within civil society do not want an NHRI, because they’re afraid that such an NHRI would not be independent from the government and would in fact be tightly controlled and abused by the government. That is one view.

I have a different view. An NHRI that was compliant with the Paris Principles would already be a positive step, and the fact that the NHRI would be reviewed and rated by the International Coordinating Committee, adds a lot more pressure on members of the NHRI to behave themselves. And this particular rating mechanism usually, albeit not in all cases, serves as an effective process. Generally, NHRIs have become more independent and competent. So because of all this I believe that there is opportunity for the NHRI to develop into an independent, effective body. There may be a process of transition: even if the first batch of representatives are not truly experts in human rights, the NHRI can evolve into an effective institution.

The difficult part is selling this view to both the government and to other NGOs. I find this to be difficult. As a critical view, I worry that some of my peers in the NGO world are not always up to par, and some may indulge in selfish reasons to oppose an NHRI. This is because of the view that, if the NHRI takes on monitoring or investigating capacities, then the investigating capacities of NGOs would not be needed any more. To me, it is sad that this motivation to retain power has traction, but in some instances it is a real motivation.

So is there hope for an NHRI in Cambodia?

There is some hope, but currently the momentum is not there. We had some strong momentum in 2006, but the momentum has since been lost, almost completely. We need to restart the push for an NHRI. We need to restart the heartbeat to resuscitate this idea of Cambodia as one of the ASEAN countries with its own national human rights institution.

Expanding somewhat from a national focus to a regional focus, what are your thoughts on the progression of the ASEAN Intergovernmental Human Rights Commission?

On this issue, there actually is significant momentum. The ASEAN Intergovernmental Human Rights Commission (AICHR) was established in 2010. The Terms of Reference (TOR) for the establishment of the AICHR were adopted before that, in 2009, by all ASEAN states. Now, the language of the TOR is weak and vague. But because of that, there is the opportunity for different interpretations of the TOR, which means that there is an opportunity for civil society to actually advocate for a broader interpretation of the Terms of Reference.

The Terms of Reference are up for review in 2014. It is stated within the Terms of Reference, and I personally know the drafter who was smart enough to make sure that this clause was included, that the Terms are to be reviewed after 5 years. So this is an opportunity for the Terms to be amended for the better. In fact, the language was kept vague for that purpose. This is because, if the language had been too strong, certain countries would not have accepted the Terms: Burma, Singapore, Vietnam, Cambodia. The language had to be vague so that more progressive members could push the Terms through.

So the review of the Terms in 2014 will be an important event. To help illustrate its importance: Guess who asked to be the ASEAN Chair in 2014, the year of the review? Burma. And within ASEAN meetings, Chair has a significant role to play in how the debate unfolds. When the TOR was originally drafted, the Thai chair was pushing for progressive language, and he was able to exercise control over the sequence of proposals in order to assist the bid for progressive language. And so the concern is that Burma will use its 2014 Chair position to utilize control for the opposite goal, pushing back against granting the redefined Terms of Reference any power or effectiveness.

The 2009 Terms of Reference determined that the AICHR would be an intergovernmental body. Was there a struggle over this aspect of the Terms of Reference, as well?

The body of the AICHR is not independent, and in fact the TOR have never stated that it would serve as an independent body. The members of the AICHR are representatives of the government, and the very name of the body makes that clear. ASEAN member states pushed for this name, for the inclusion of the term “Intergovernmental”; they believed that this particular word had to be present. We civil society leaders wanted it to be the ASEAN Human Rights Commission. Because the states did not all agree to the word “Commission” within the title, the only situation on which they would all allow the word “Commission” was if it were an “Intergovernmental Commission.”

Now, eventually, the word “Intergovernmental” will be removed from the spoken title. In fact, we try not to mention that particular word as much as we can; instead, we tend to refer to the AICHR as “the Commission.”

The AICHR is also working on an ASEAN Human Rights Declaration. What are your thoughts on this process?

The ASEAN Human Rights Declaration will be a key document. Today, the AICHR mainly works on the “promotion” of human rights. So we are dealing mainly with education and training. The question is, what kind of standards will the AICHR promote in its training? It is in answering this question that the new Human Rights Declaration would play a key role.

I can tell you already that the Declaration will talk about not just human rights, but rather, “rights and responsibilities.” These responsibilities will be placed on the people themselves. Now, in the language of human rights, the responsibilities rest on the state. The AICHR is attempting to turn that around and place the onus on the people. And this assignment of responsibilities will be used to strike against some of the things for which we are advocating as part of our push for human rights.

Are there certain arguments being used to advance this vision of “rights and responsibilities”?

The “Asian Values” argument is re-appearing. Argument like “cultural context,” “regional specificity,” . . . same idea, different spelling. Countries that have tried to bring up this issue of “regional specificity” include Vietnam, Burma, Laos, Singapore. I specifically remember Singapore trying to bring this argument into play in a 2007 meeting during the TOR drafting process. In my mind, this should no longer be a subject of debate. But the same argument is continually resurrected in different forms.

So are you hopeful for the effectiveness of the AICHR?

I believe that there is some hope for the AICHR as a result of the dynamics of peer pressure. No one wants to be seen as the one who is blocking progress in human rights.

Of course, perception will only get you so far. I remember the first interface meeting between civil society and government leaders of the ASEAN member states, over the summer, in Huhin, Thailand. Vietnam and Singapore did not want this meeting to be a success. Singapore does not even have independent human rights NGOs, and they did not want to empower a norm where governments were responsive to the desires of NGOs. Vietnam felt similarly. Now, Laos, Cambodia, and Burma didn’t really care about this meeting. I don’t think any of those three governments were sophisticated in understanding the message that the meeting would be sending, its significance. So it was Burma and Cambodia that walked out of the meeting and stopped the process. But it was Vietnam and Singapore, behind the scenes, pushing these two countries to walk out.

As this example illustrates, smart leaders never want to be blamed for stopping an open process. They never want to be blamed for stopping advancement in the realm of human rights. So they step into the public eye—and Singapore especially comes to mind—and say all the right words. But behind the scenes, they are pushing other countries to stop this process.

I have been consistently critical of Vietnam’s contribution to the AICHR. In my mind, Vietnam is the worst contributor in this area. But Singapore is the country that distresses me the most. They will not explicitly oppose progressive language. They want to be seen as a father figure, the smartest of all of them, the one who is willing to model and compromise. But behind the scenes, the reality is different.

CCHR has launched a Business and Human Rights project. How do you view the interaction between human rights organizations and corporate actors, both globally and in Southeast Asia? What are your hopes for how this relationship can develop?

This has actually been a topic picked by the AICHR for thematic study, which goes to show that this is a topic that all ASEAN member states find acceptable. And if this topic is acceptable for all ASEAN states, then there is room for all of us to work on this issue within Southeast Asia, and to work with business operators and investors.

In Cambodia, business people learn to operate in a system by operating within the limits of the system or by getting around the system. And this is viewed as being strategic, being pragmatic, and it’s not a problem because they are normalized to operate in this system throughout many years. But besides that, the business community in Cambodia is actually a force for moderation. They also want change. In that regard, I’m happy to talk with the business community. In fact, I’m happier talking to the business community than to the government. I think the members of the business community understand that a better rule of law will help them.

Now, the tycoons will not want rule of law within Cambodia, because under a developed rule of law they will not receive the same privileges that they are getting now. The tycoons are the ones who are currently in positions of monopoly, receiving all the benefits, and being allowed to do whatever they want. With their power, and with the money they have, they have much more influence and they benefit quite a bit. But it’s the mid-sized and small businesses that see the benefit of rule of law.

And that is the message I think we need to keep hitting, the message that human rights and business do not have to be seen as contradictory. Protecting human rights will not hurt business, and will in fact allow them the stability to plan their investments and operations. Currently, businesses operate in an atmosphere where their interests are not clearly protected by law. And that, I think, is what worries businesses the most. Predictability will go a long way for business.

I also think that we have to be a bit more pragmatic in engaging with mid-sized and smaller businesses. These businesses are not all clean: they cannot be clean and operate in Cambodia. Period. So if the standard of working and engaging with them is that they’re perfect operators, then no one will work. A little more pragmatism with mid-sized businesses will go a long way in ensuring that we gain a lot of friends who will help advocate for rule of law.

So the challenge is to send a message that is not antagonistic but instead looks at how human rights and rule of law will benefit all businesses in a properly competitive environment. With this message, and with a developed strategy, I’m sure we could get a lot of buy-in from the business sectors. And with this buy-in, we will see change, because these sectors represent a powerful constituency.

I think that within Southeast Asia, CCHR is perhaps the only one, or perhaps one of only a few, with a Business and Human Rights project. But I think that other organizations within ASEAN countries are starting to see the issues as well. Hopefully this model will spread, and there will be replication by other NGOs and other countries also.

This concludes HHRJ’s interview with Ou Virak.  The complete interview series is available HERE. For more information on the Cambodian Center for Human Rights, visit their website at http://www.cchrcambodia.org/.

Matt
Written by Matt

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