ASEAN Human Rights Instruments – Weak Language, Weak Mandates, Weak Protections

by Jayshendra Karunakaren


The 30th Summit for the Association of Southeast Asian Nations (ASEAN) has been recently concluded in Manila. A notable issue in the Summit chairman’s statement is that satisfaction was expressed at the work and progress of the ASEAN Intergovernmental Commission on Human Rights (AICHR). However, this contradicts the outpouring of criticism that was directed towards this regional human rights instrument. The AICHR was created in 2009 to prepare for a regional human rights document, which was the ASEAN Human Rights Declaration (AHRD) signed in 2012. 
This article explains and reviews these two ASEAN human rights instruments. Before doing so, a background of ASEAN’s values and history is crucial to provide context. 
ASEAN Legal and Cultural Values
ASEAN’s main purpose is to ensure that member states to organise around common interests and adopt its rules of acceptable regional behaviour. This is to reduce uncertainty in inter-state relations. ASEAN’s legal principles are: (1) prohibition against the use of force and a commitment to the peaceful settlement of disputes, (2) regional autonomy, (3) commitment to state sovereignty and non-interference into the domestic affairs of member states, and (4) no military pacts and a preference for bilateral defense cooperation. These norms, except the last, are codified within ASEAN declarations and documents. They are based on the principle that member states should respect the sovereignty of other member states and refrain from interfering into the domestic politics of other states. 
ASEAN’s socio-cultural norms, also known as ‘the ASEAN Way’, are based on Malay cultural practices of emphasizing processes of consultation and consensus-building. In real terms, this means that any proposal must be agreed upon by ALL member states before it can be adopted. The implications of such norms are that member states would avoid discussing contentious issues so it would not affect cooperation into other areas. 
ASEAN was created on 8 August 1967 by founding members Indonesia, Malaysia, the Philippines, Singapore, and Thailand. It was inaugurated in the aftermath of Indonesia’s Konfrontasi against Malaysia. Its creation was spurred by the removal of Indonesia President Sukarno in a coup by General Suharto, which led to a change in Indonesia’s foreign policy towards its Southeast Asian neighbours. Thus, one of the early aims for the founding of ASEAN is the alleviation of intra-ASEAN tensions and promote regional peace. With the backdrop of the Cold War geopolitical rivalry, member states shared the belief that foreign-backed communist insurgency was their greatest security threat. Following this, ASEAN was also created to reduce the regional influence of external actors. In addition, ASEAN was created to promote socio-economic cooperation. 
In November 1971, ASEAN committed Southeast Asia to become a ‘Zone of Peace, Freedom, and Neutrality’ (ZOPFAN). It was a Malaysian initiative to get ASEAN states to publicly declare that Southeast Asia would be free from any interference by outside powers. However, the concept is not largely abandoned. 
In 1992, after the great power confrontation of the Cold War ended, ASEAN reformed its organization. It reformed its institutional structure, formalized summit meetings, increased the duties and rank of the ASEAN Secretary-General, and strengthened the levels of interaction between high-level officials. In 1994, ASEAN responded to demands to create a security architecture to manage the new security dynamics of the post-Cold War Asia-Pacific environment by holding the first meeting of the ASEAN Regional Forum (ARF). ASEAN played a key role in the ARF meeting by setting the agenda and introducing its consensus-building model into proceedings. In addition, ASEAN incorporated Vietnam in 1995, Burma and Laos in 1997, and Cambodia in 1999.
This decade of ASEAN reforms also included new economic initiatives such as the endorsement of the ASEAN Free Trade Are (AFTA) by the ASEAN Summit in Singapore in 1992. It was meant to increase foreign investment in the region and make it easier for multinational corporations to establish themselves at the regional level. This has involved radically reducing trade tariffs. 
In October 2003, ASEAN held the Second Bali Summit (or Bali Accords II) where it introduced the Second Declaration of ASEAN Concord. In the Concord, ASEAN announced its long-term plan to create an ASEAN Community based on three pillars: 
(1) the ASEAN Economic Community (AEC), 
(2) the ASEAN Security Community (ASC), and 
(3) the ASEAN Socio-Cultural Community (ASCC). 
The AEC aims to create an integrated single market and production base based on AFTA, the AIA, and the ASEAN Framework Agreement on Services (AFAS). The ASC envisages to improve ASEAN’s political and security cooperation in a peaceful regional environment and emphasizes the principle of non-intervention. The ASCC aims to improve state capacity to provide basic social services to the poorest sections of society. At the 11th ASEAN Summit in Kuala Lumpur in 2005, the ASEAN leaders signed the Kuala Lumpur Declaration on the ASEAN Charter. The Charter is a constitutional document which embodies ASEAN principles, objectives and structures to meet the needs of the ASEAN Community. 
ASEAN and Human Rights 

From the founding of ASEAN in 1967 to the mid-1990s, ASEAN did not engage with any language or substance on human rights, especially those of a civil and political nature. This is due to the ‘ASEAN Way’ principle of consensus that ASEAN upholds in its procedures. ASEAN therefore prioritizes complementary economic development and facilitating confidence- and trust-building and avoids contentious issues. 
Human rights engagement would require focusing on the domestic relationship between citizens and ASEAN member state governments, and thus would appear to violate the ASEAN principle of ‘non-interference’. 
The first major breakthrough in the adopting a focus on human rights was observed in the Vientiane Action Programme. In this Action Programme, ASEAN member states agreed to share information about human rights, to link any existing human rights institutions and to establish a commission to protect and promote the rights of women and children. This Action Programme laid the groundwork for the process leading to the ASEAN Charter, which was signed in December 2007. The Charter listed “strengthening democracy, enhancing good governance and the rule of law, and promoting and protecting human rights and fundamental freedoms” as one of the central purposes of ASEAN. However, this aim was limited by the statement “due regard to the rights and responsibilities of the member states of ASEAN”. In addition, Article 14 of the Charter called for the establishment of an ASEAN Human Rights Body, which led to the creation of the AICHR in 2009. The AICHR is Asia’s first regional human rights institution.
The ASEAN Human Rights Declaration (AHRD)

The ASEAN Human Rights Declaration (AHRD) was signed in 19 November 2012. It is the first ever Southeast Asian charter of human rights and contains commitments to not only civil and political rights, but also economic, cultural and social rights. The Declaration was released after almost three years of high-level negotiations and consists of forty articles. 
In the AHRD, Article 7 asserts the traditional universality of human rights: “All human rights are universal, indivisible, interdependent, and interrelated.” Article 21-25 outlines a set of civil and political rights. Article 21 and 22 contains nominal provisions that protect freedom of thought and expression. Article 25 (1) outlines that “every person who is a citizen of his or her country has the right to participate in the government of his or her country, either directly or indirectly through democratically elected representatives, in accordance with national law”. 
However, the protection of the rights listed in the AHRD are limited by the following factors: (1) these rights are to be ‘balanced’ by duties and responsibilities, (2) to maintain national security, public order, public health, public morality, and national welfare, (3) it is conditional upon the local and national context, (4) the provisions are not binding, and (5) there is no effective implementation and enforcement mechanism. 
The ASEAN Intergovernmental Commission on Human Rights (AICHR)
On July 2009, the 42nd ASEAN Ministerial Meeting adopted the Terms of References (ToR) for the AICHR. The ToR calls for the development of strategies to promote and protect human rights and fundamental freedoms. It also provides that the aims of the commission is to ‘uphold international human rights standards as prescribed by the UDHR, the Vienna Declaration and Programme of Action and international human rights instruments to which ASEAN Member States are parties.’ However, the ToR does not include the powers of investigation, monitoring or enforcement. 
Article 5.1 of the ToR states that the AICHR shall compromise the member states of ASEAN. To this effect, Article 5.4 states that member states should consult with the necessary stakeholders in appointing their representative to the AICHR. Article 5.5 stipulates that each representative shall serve a term of three years and may be consecutively reappointed for only one more term. Thus far, the AICHR representatives have consisted of judges, former judges, former diplomats, members of civil society organisations, university professors, and government officials from the foreign affairs ministries. 
In addition, the AICHR has no dedicated Secretariat. Only three staff members from the Community and Corporate Affairs in the ASEAN Secretariat have provided logistical support for the AICHR’s work. However, the AICHR had a five-year plan to strengthen the ASEAN Secretariat’s support for the AICHR and to consider the formation of a secretariat dedicated to the Commission. 
In terms of funding, Article 8.3 of the ToR stipulates that the annual budget of the AICHR should be funded equally by ASEAN member states. To gain access to the fund, the AICHR must submit its Work Plan and budget for a cycle of five years to the ASEAN Foreign Ministers Meeting for approval. This five-year work plan consists of various activities ranging from convening meetings, training and seminars, conducting studies and engaging with other regional and international human rights mechanisms. The AICHR planned to prepare at least one study per year on selected issues. 
The first AICHR study was completed in 2014. It was led by Singapore and Malaysia and was on the issue of corporate social responsibility and human rights. Thailand and the Philippines are coordinating the drafting of the AICHR Guideline on engaging civil society groups. 
The AICHR has also engaged in public discussion such as when the AICHR and the Committee of Parliamentary Representatives jointly held the public discussion on the topic of ‘Community Building through the Implementation of the ASEAN Human Rights Declaration’. The meeting was attended by representatives of civil society, media and the diplomatic community. In addition, the AICHR also engaged in public discussion with youth stakeholders by launching the first ASEAN Youth Debate on Human Rights in Rockwell, Makati City, Philippines. 
Through review processes of the AICHR, civil society organisations have criticized the AICHR in the following ways:
(1) It lacks a strong mandate to protect human rights and there is no dedicated secretariat to the AICHR. There is no protection mandate for precautionary measures, monitoring and complaint mechanisms, country visits, and country peer reviews.
(2) It has not institutionalised relationships between national human rights institutions and civil society organisations, even though Article 4.8 and 4.9 of its ToR have provided a mandate to the AICHR to do so. 
(3) It has not formalized a channel by which it can obtain information from ASEAN member states on their promotion and protection of human rights, even though Article 4.10 of the ToR mandates it to do so, 
(4) It has not implemented strategies to encourage member states to ratify and accede to international conventions of human rights and fully implement ASEAN instruments, even though Article 4.5 and 4.6 (respectively) of the ToR mandates it to do so,
(5) It has not formalised a channel to provide advisory and technical assistance to ASEAN sectoral bodies, even though Article 4.7 of the ToR mandates it to do so,
(6) The AICHR has not been transparent and accessible at the national and regional levels, which creates gaps in understanding the role of regional human rights instruments in ASEAN,
(7) As the representatives to the AICHR are appointed by their respective ASEAN member state governments, they are not appointed in an independent capacity and remain accountable to their own governments, who could be human rights violators.
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