Taking Stock of 10 Years of ASEAN Charter: Human Rights Perspective

No Chemistry

 

The relationship between human rights and ASEAN has never been easy; this was true in the forty years before the ASEAN Charter and has not improved in the ten years after the Charter. The chemistry between human rights and ASEAN is still a work in progress, and unfortunately it has been a very slow progress. To say the least, there is no chemistry between the two.

 

Established as a political and economic entity in 1967, human rights was not on the list of priority issues nor aspirations for cooperation in ASEAN. Prior to the ASEAN Charter, ASEAN was simply an “association for regional cooperation” with its primary constitutive legal instruments of ASEAN being  the 1976 Treaty of Amity and Cooperation (TAC) in Southeast Asia and the 1967 ASEAN (Bangkok) Declaration. It was not until the ASEAN Charter was launched that human rights was included as part of the aspiration, principles, purposes and goals of the regionalisation. The inclusion of human rights in the Charter submits the idea that ASEAN - as a distinct international organisation - should bear the duty of observing core international human rights norms and ensuring compliance by its Member States.

 

Currently, all ASEAN Member States have recognised human rights norms, expressly (by signature, treaty ratification, accession) or in individual or collective practice, particularly to the UN Convention on the Elimination of the Violence and Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on The Rights of Person with Disabilities (CRPD). It is worthwhile to note that despite the difficulties in integrating human rights as the values and practices in ASEAN, its members’ respective Constitutions guarantee human rights protection for the people, although at different levels and coverage.[1]

 

The term “human rights” first appeared in ASEAN in the 1990s with an extent of disinclination to the concept as reflected in its official documents[2]. The first reservation was expressed in the relation that human rights may challenge the sovereignty of the State, as conveyed in the Joint Communiqué of the 24th ASEAN Ministerial Meeting, 19-20 July 1991, Para 15,

 

“[W]hile human rights is universal in character, implementation in the national context should remain within the competence and responsibility of each country, having regard for the complex variety of economic, social and cultural realities. They emphasized that the international application of human rights be narrow and selective nor should it violate the sovereignty of nations”[3].

 

The second hesitation was that human rights has been politicised by using it as a pre-requisite to obtain development aid and cooperation as reflected in the Joint Communiqué of the 25th ASEAN Ministerial Meeting, 21-22 July 1992, Para 18,

 

“…human rights concerns should not be made as conditionality in economic and development cooperation. They noted that basic human rights, while universal in character, are governed by the distinct culture and history of, and socioeconomic conditions in each country and that their expression and application in the national context are within the competence and responsibility of each country”[4].

 

The third aversion was on the fact that human rights has potential to disrespect territorial integrity and non-interference in the internal affairs of states as echoed in the Joint Communiqué of the 26th ASEAN Ministerial Meeting, 23-24 July 1993,

 

“the protection and promotion of human rights in the international community should take cognizance of the principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of states”[5].

 

At the same time, ASEAN Foreign Ministers affirmed ASEAN's commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration of 25 June 1993 and the fact that human rights are interrelated and indivisible comprising civil, political, economic, social and cultural rights[6] as well as considered the establishment of a regional mechanism on human rights[7].

 

In 1997, ASEAN Leaders adopted the regional commitment to create an ASEAN caring and sharing community, which was later called the ASEAN Vision 2020 during the Second ASEAN Informal Summit in Kuala Lumpur. It was followed by the adoption of the Hanoi Plan of Action (HPA) detailing on the ASEAN Vision 2020 by developing lines of action. In the meantime, human rights debates were intensified as appeared in a number of ASEAN official documents, such as the 2003 Bali Concord II, the 2004 Vientiane Action Program (VAP), and the 2007 Political Security and in Social-Cultural Blueprint, where ASEAN put forward a much more concrete agenda on human rights.

 

Its’ a Complicated Relationship

 

Human rights has been the most sensitive and controversial[8] issue during the process of formulating the ASEAN Charter. It goes with the acknowledgement that the inclusion of human rights offers an introduction to the “new” ASEAN’s identity that allows the transformation of identity into a more rule-based regional organisation with the respect and compliance to universal values such as human rights, democracy and good governance.

 

Particularly, the inclusion of human rights in the ASEAN Charter indicates that the Association is not about economic growth and development only but also signifies the reassessment to the urgency of the long debate regarding ASEAN’s global participation to “universalise” the core of human rights in the region. The universalisation of the core human rights in ASEAN is not irreconcilable with the duties of ASEAN Member States as parties to the Charter of the United Nations, and as members of the international community. In fact, the new status of ASEAN as an international organisation surfaces various questions on its separate responsibilities on human rights as an international organisation on the one hand, and the imitative responsibilities of its Member States on the other.

 

While all differences in position and interests over human rights continued to exist among ASEAN Member States, the Charter was adopted in 2008 along with Article 14 which guarantees the establishment of a ASEAN human rights body.

 

A year after the adoption of the Charter, the Terms of Reference (TOR) of the ASEAN Intergovernmental Commission on Human Rights (AICHR) – the name that was agreed then - was announced to the public with “maximum consensus”[9] reached by all ASEAN Member States in that time. The TOR of the AICHR limits the mandates of the ten appointed/selected Representatives to conduct more promotion functions rather than protection on human rights. Interestingly, the Chair’s press statement indicates the work on AICHR was far from finish, as its reads, “It is important to make this human rights body credible and take into account the real situation in ASEAN member countries. So, this TOR is the beginning of an evolving process”[10].

 

The journey of human rights socialisation, norms-setting and institutionalisation after the adoption of the ASEAN Charter is not without challenges. In fact, its process has been the site of contestation and power dynamic; the interplay between national interests and regional aspirations; the negotiations among participating actors, and between universalist ideas and particularism as well as the avenue for further nation-building and identity formation in the development of an “imagined”[11]ASEAN Community. It is worth noting that ASEAN is the home to a range of ethnic, cultural, religious and belief diversity as well as government, political and legal systems.

 

I have argued elsewhere that AICHR, among other things, should be able to develop a common position as the “moral voice” to a complex problem in the region.This idea was also appreciated as one of the functions of AICHR as stated in the Article 4.11 of the TOR, “To develop common approaches and positions on human rights matters of interest to ASEAN”. Nevertheless, AICHR continues to hide behind its limitation to address human rights challenges in the region, by arguing that the body has no mandate to address human rights issues. In fact, the last two consecutive ASEAN Foreign Ministers Meetings, however, have seen the Joint Communiques repeatedly call for AICHR to “engage more on human rights in the region”.[12]It is necessary to mention that some initiatives were proposed in AICHR, such as providing space for ASEAN human rights dialogue by Indonesia in 2013, the development of AICHR protection mandate for women and children by the Philippines, and development of complaint mechanisms by Malaysia. However, these initiatives have been questioned internally using the procedural compliances. Some progressive and committed AICHR Representatives are required to be rigorous in their diplomacy work but at the same time have to be creative and pragmatic yet principled in putting the TOR into implementation.

 

As a Charter-based and overarching body in ASEAN on human rights, AICHR still cannot fulfil the expectations of the people, eight years after its establishment. It has no grievance mechanisms to receive and respond to complaints from the population. The citizens of Indonesia, Malaysia, Myanmar, Philippines, and Thailand can go to their National Human Rights Institutions (NHRIs) to seek justice, while the rest of the population in ASEAN has no mechanisms to go to.

 

The TOR of the AICHR was supposed to be reviewed in 2014.[13]The review, as stated in the Cha-Am Hua Hin Declaration (2009)[14], aims at strengthening the AICHR’s mandate to promote and protect human rights. The process, however, stuck in the hand of the Foreign Ministers. While recognising that the Foreign Ministers should review the TOR of AICHR, the 47thJoint Communique (2014) was not clear on how the review should be done[15]. The 48th Joint Communique (2015) acknowledged the submission on AICHR self-assessment on its five-year work performance and recommendation, but still did not indicate whether the review will take place anytime soon as it reads, “We further welcomed the AICHR’s submission on the Assessment and Recommendations on the Review of the TOR and took note of the assessment and recommendations provided therein”.[16] The 49th Joint Communique (2016) suggested that the review of the TOR will be conducted when necessary and if appropriate, as it reads, “We welcomed the outcomes of the Interface between the AMM and AICHR Representatives and took note of the recommendation for the AMM to consider, when and as appropriate, the review of the TOR of the AICHR as provided for in the TOR…”[17].

 

There were two explanations provided by the Indonesia’s Foreign Minister at that time, Marty Natalegawa, during the interface meeting between the representatives of civil society from ten ASEAN countries,[18]as the reasons behind ASEAN’s ambiguity to proceed with the review of the TOR of the AICHR[19]. First, not all mandates in the TOR have been executed by AICHR in the last five years, therefore, AICHR should wait for a couple of years to implement them effectively. Second, there was a fear that the review process will re-open heated debates on AICHR’s mandates and functions and become the avenue to further weaken AICHR. Natalegawa also warned civil society that the changes in AICHR, if any, as a result of the review of the TOR, will not be radical as expected[20]. Nonetheless, civil society came up with the submission of recommendations to improve AICHR’s mandates and functions.

 

Currently, AICHR has approved 16 applications for accreditation from Non-Governmental Organisations (NGOs) in Southeast Asia, but it does not mean that AICHR has changed its attitude toward civil society, the space for their engagement and the right to participation. AICHR continues to refuse to engage with organisations that are critical of the human rights record of the ASEAN Member States and the work of AICHR. Moreover, those who were affiliated with AICHR did not equally gain the facilities as provided by the Guideline on Accreditation for Civil Society Organizations (CSOs)[21], which raised a question on the advantages of being affiliated.

 

Difficult Engagement

 

AICHR developed the ASEAN Human Rights Declaration (AHRD) as mandated by the TOR Article 4.1 in two steps which include the setting up of a drafting team consisted of nine government representatives and one practicing lawyer (from Thailand) appointed by each AICHR representative, and followed by the negotiation process among AICHR representatives.[22] The meetings and negotiations were intensified until September 2012.

 

The consultation with stakeholders was organised in the second step process, involving civil society and ASEAN sectoral organs such as the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC). However, civil society considered the drafting process of AHRD was not equally participatory[23] as some individual AICHR representatives held national consultations with civil society groups, but the rest had no consultations at all[24]. Moreover, AICHR did not share the draft of the AHRD, which made it difficult to comment and provide inputs.

 

AHRD provides many of the universal human rights guaranteed to include freedom and equality in dignity and rights, prohibition of discrimination; the preservation of human life, the protection of one’s honour, family, and property; and affirmation to human right to education, medical and social care and protection, and a clean environment[25]. It also upholds that development is an inalienable part of human rights and encourages the right of peace for everyone[26]. The last-minute addition of the Phnom Penh Declaration upon adopting AHRD[27], reaffirming ASEAN member governments’ commitment to the Universal Declaration of Human Rights and other human rights instruments in the implementation of AHRD, does not sufficiently address the fundamental problem as presented in the “General Principles” because it provides evidences that international human rights obligations in ASEAN region may be circumvented[28].

As a response, sixty-four civil society groups in the region denounced the adoption of AHRD as it “undermines, rather than affirms, international human rights law and standards”[29].The section on “General Principles” hosts the most contentious notions of human rights in AHRD, which as the title suggests, serve as ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments[30]. These include balancing the enjoyment of fundamental rights with government-imposed duties on individuals (Article 6), subjecting the realisation of human rights to regional and national contexts (Article 7), and broad and all-encompassing limitations on rights in the Declaration, including rights that should never be restricted (Article 8). There are problematic texts in AHRD that condition the enjoyment of human rights to be the subject of the national laws, such as the right to participate in the government through elections (Article 25.1) and right to vote in periodic and genuine elections (Article 25.2), which not all ASEAN Member States’ laws are supportive of these rights. Moreover, AHRD fails to guarantee the right to freedom of association and the right to be free from enforced disappearance.

 

The ASEAN Member States’ diversity in the political, economic, social, cultural and legal systems have been often used to justify the lack of consistency with the international human rights laws in the AHRD. I argue that ASEAN’s diversity cannot operate as a normative “exception” as would modify the obligatory character of “core” and non-derogable human rights norms. It is paramount that core human rights norms are non-derogable and binding on all states as “norms accepted and recognised by the international community of states as a whole,” and “which can be modified onlyby a subsequent norm of general international law having the same character”.[31]Privileging the core and non-derogable rights draws from its proximity to the individual’s human dignity and “personhood”. Torture, genocide, slavery and various forms of crimes against humanity and war crimes directly threaten the individual’s bodily integrity and subordinate the inherent dignity as a human person. Similarly, the basic civil and political rights of freedom of thought, religion, association, opinion, speech, and guarantees of substantive and procedural due process are critical.

 

Business as Usual

 

The ASEAN Charter marks the ASEAN’s evolution from cooperation to integration promises for the realisation of a rational consensus on democratic, rule of law and human rights commitments. The relatively widespread involvement of different actors such as diplomats, scholars, lawyers, bureaucrats, and civil society groups in the creation of the integrated ASEAN Community is itself an achievement of liberal internationalism in the region. Nevertheless, after the adoption of the Charter, when civil society groups assert Article 1.13 of the Charter which encourages all society to “participate in, and benefit from, the process of ASEAN integration and community building”, AICHR instead undermines it by putting some barriers for participation.

 

While mindful that the inclusion of human rights in the ASEAN Charter can be considered as a regional ‘game changer’, ASEAN maintains its ‘business as usual’ approach on human rights issues during the last ten years. ASEAN has also been relatively silent in dealing with human rights violence against the Rohingya, or the trafficking case in Benjina,[32]Indonesia. ASEAN has frequently missed the boats to be relevant to the people in the region. In addition, despite the fact that human rights were located in different sections of the Charter, it did not guarantee that its norm-setting exercise could escape from the old polarised debate between the “Asian values versus Western imperialism.”

 

The ASEAN Charter was the litmus test for the capacity of ASEAN Member States to adapt to a new role as an international organisation that is subjected to international human rights laws. In the last ten years however, ASEAN has not behaved as a credible international organisation that respects human rights, rule of law, good governance and democracy. Apparently, the optimism towards structural and institutional progress as promised by the Charter must be curbed with realistic concerns that ASEAN is far away from being a model for international human rights observance ad compliance among the various regional organisations throughout the world.



[1] The Constitutions of ASEAN member countries can be categorized into: a) an extensive guarantee of human rights (the Philippines, Thailand, Cambodia, Indonesia, and Lao PDR), b) protection for human rights with various restrictions (Malaysia, Singapore, Vietnam and Myanmar), and c) few guarantee on human rights protection (Brunei Darussalam).

[2] Such as Joint Communiqué or Joint Declaration or Statements

[5] See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore 23-24 July 1993, Paras. 17, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

[6] See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore 23-24 July 1993, Paras. 16, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

[7] See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore 23-24 July 1993, Paras. 18, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

[8]Koh, Tommy, Rosario G. Manalo and Walter Woon (2009). The Making of ASEAN Charter, World Scientific Publishing Co. Pte. Ltd., Singapore.

[9] Please see the Thailand’s Government Statement on 20 July 2009 when TOR AICHR was finally adopted by ASEAN Foreign Ministers in Phuket, Thailand, http://thailand.prd.go.th/ewt_news.php?nid=833&filename=index

[11] I borrow this term from Benedict Anderson in his book with the same title to portray the process of regionalization formation in ASEAN. Anderson depicts a nation-building in Indonesia after 1965 as a socially constructed community, imagined by the people who perceive themselves as part of that group.

[12]See paragraph 16 of the Joint Communiqué of the 49th ASEAN Foreign Ministers’ Meeting (AMM) held on 24 July 2016 in Vientianeand Paragraph 18 of the Joint Communique of the 48th ASEAN Foreign Ministers’ Meeting (AMM) on 4th August 2015 in Kuala Lumpur.

[13] Article 9.6 of the TOR of AICHR provides that it shall be reviewed five years after its entry into force. ASEAN Foreign Ministers are the one who have authority to review the TOR but AICHR can provide recommendations for the review.

[18] Please see, http://newsdesk.ph/2014/07/17/amendments-sought-tor-asean-rights-commission/

[19] The explanations were given to civil society during the interface meeting with him in July 2014 organised by Human Rights Working Group (HRWG), where the author served as one of the organisers of the event.

[20] The author was one of the organizers of the interface meeting between civil society and the Indonesian Foreign Ministers. The author was affiliated with Human Rights Worker Group (HRWG) as its Senior Advisor on ASEAN and Human Rights.

[21] Please see http://asean.org/storage/2016/07/18.-September-2016-ASEAN-Engagement-with-Entities-1st-Reprint.pdf

[22]Sriprapha Petchamesree. (2013). The ASEAN Human Rights Architecture: Its Development and Challenges in The EqualRights Review, Vol. Eleven, available at http://www.equalrightstrust.org/ertdocumentbank/Sriprapha%20Petcharamesree%20ERR11.pdf

[23]The AICHR consulted civil society twice only towards the very end of the process without sharing the text of the draft, and ignored most of their recommendations. Please see, http://www.forum-asia.org/?p=15601

[24]Sriprapha. (2013). Op. cit,

[25] Please see, http://aichr.org/documents/

[26]Ibid.

[27]Ibid.

[28] Please see, http://www.amnesty.org/en/library/asset/IOR64/005/2012/en/cd2af858-753e-477a-9bad-9b9d863dd3bd/ior640052012en.html

[29] Please see, http://www.hrw.org/news/2012/11/19/civil-society-denounces-adoption-flawed-asean-human-rights-declaration

[30]Ibid.

[31] Please see Vienna Convention on the Law of Treaties, Article 53

[32] In May 2015, the police in Thailand and Malaysia found the graves of the hundreds of the abandoned bodies of the migrants and victims of human trafficking. In May 2015, Myanmar workers were trafficked by Thailand companies and worked under slavery in fishery project in Benjina, http://www.theage.com.au/victoria/the-slaves-of-benjina-ghastliness-on-our-doorstep-unseen-20150521-gh6p0c.html

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