JURIST Guest Columnist Daniel Aguirre of the Regents College London says that although the recently adopted ASEAN Human Rights Declaration is a significant step forward, much work remains to be done in order to protect human rights in the region…

On November 18, 2012, the Association of South East Asian Nations (ASEAN) put forward the ASEAN Human Rights Declaration (“Declaration”) as part of a drive to create an ASEAN community. The promotion of human rights law is new and controversial within the ASEAN mandate. The Bangkok Declaration created the organization in 1967 to foster political stability, protect sovereignty and promote economic development. Its membership includes Cambodia, Laos, Thailand, Malaysia, Brunei Darussalam, Singapore, Indonesia, Myanmar and Vietnam.

Human rights legislation first appeared in November 2007 in the ASEAN Charter, which was adopted to provide the association a belated legal foundation. It included provisions for an ASEAN human rights body. In 2009, the ASEAN Intergovernmental Commission for Human Rights (AICHR) was created. The AICHR is faced with the organization’s deference to a conservative notion of state sovereignty and its member states’ prioritization of foreign investment fuelled economic growth over human rights. Despite these challenges, the adoption of the non-binding declaration signals an historic moment for human rights in Southeast Asia.

The “ASEAN Way” — a term used to describe the organization’s system of cooperation — has facilitated trust amongst disparate states by avoiding confrontation while promoting consensus and engagement. This commitment is enshrined in the Treaty of Amity and Cooperation of 1976. The ASEAN Charter reiterates this legal entrenchment of the ASEAN Way in its Article 2 making commitments to sovereignty, non-interference and consultative consensus before the principle to respect human rights. This doctrine impedes the implementation of human rights law regionally and allows states to conduct economic development policy, increasingly linked with human rights abuses and environmental degradation without regional oversight and impunity.

Paradoxically, the organization requires the ASEAN Way in order to cooperate but the doctrine then prevents further integration, especially in terms of human rights. The ASEAN Way came about in order to check the political ambitions of member states and to preserve sovereignty. Members cooperate politically and economically as long as ASEAN does not interfere in their domestic jurisdictions. Yet further regional integration necessitates standardization that is incompatible with ASEAN’s traditional approach.

Human rights have never been central to ASEAN. In fact, the organization has traditionally viewed them as foreign, culturally relevant and best dealt with at the national level. But the nature of a functioning human rights protection mechanism is to investigate human rights abuses by states. The ASEAN Way approach undermines this function because monitoring entails interference in domestic affairs to scrutinize national legislation and policy. ASEAN member nations, many of which have poor human rights records and allow no recourse to judicial accountability at the national level, do not accept this. The AICHR terms of reference reflect this and grant no mandate to investigate or enforce human rights law. Civil society’s participation has been curtailed. Human rights issues remain an internal matter of domestic jurisdiction, subject to national law and local interpretation. This is human rights law “the ASEAN way.”

Nevertheless, the AICHR is now a functioning body and touted as a central component of ASEAN despite disagreement between members on what human rights are and opposition to enforcement or even monitoring. The AICHR is a ten-member body, with one representative appointed by each member state to serve three-year, renewable terms. Representatives report to the ASEAN Foreign Ministers. The commission is composed of officials chosen by and accountable to member states, eight of whom held the title of “His Excellency.” Only the representatives from Indonesia and Thailand had human rights advocacy experience. While the AICHR can promote ASEAN human rights instruments, raise public awareness and conduct research, the terms of reference do not provide for complaints, monitoring or reporting mechanisms that are essential to the functioning of other regional systems. It has been widely criticized by civil society calling it a toothless watchdog.

The AICHR’s first three-year term has been spent trying to agree on the legal nature of human rights, drafting a declaration and formalizing engagement with civil society. The “ASEAN way” relies on consensus decision-making. Cambodia, Laos, Burma and Vietnam — backed by China — oppose human rights law as a hindrance to economic development. As a result, the language of the Declaration has been repeatedly watered down as different states opposed different rights. The Declaration has already drawn criticism for subjecting human rights standards to national laws, local cultures, public morality and for not explicitly guaranteeing freedom of assembly while imposing human rights duties on individuals. In addition, two reports commissioned by the AICHR — one on migrant workers and one on corporate social responsibility — have been initiated but are incomplete, with few member states contributing.

What does the organization gain from introducing this human rights body? Perhaps the answer is an economic one. The language of international relations, foreign investment and economic development increasingly includes human rights rhetoric. ASEAN’s opposition to human rights conditionality may have wavered. ASEAN members can point to the new human rights mechanism as an indication of progress and increased legitimacy without the worries of legal accountability. Even the dictatorship in Burma wrote up a new constitution [PDF] and now presides over a semi-democratic parliament. Since then the generals have watched Western politicians and businessmen loosen sanctions and clamor to invest. They will garner vast wealth as local partners for foreign investors. Meanwhile, the AICHR cannot investigate past, present or future human rights violations.

ASEAN’s policy with its recalcitrant members has always been one of economic engagement. It is argued that this policy can coax dictatorial states out of isolation. Critics argue that engagement permits human rights violations to continue for decades while regional elites enrich themselves. Either way, these states now seem willing to recognize a regional human rights protection system if it will increases legitimacy and promote foreign investment. In this context, the existence of the AICHR risks legitimizing the status quo. It may provide window dressing that would reduce pressure to reform from other states, from international organizations, and civil society. Human rights treaties serve to signal change. This can result in substantial economic benefits through development aid or foreign investment. Development aid or the proceeds of foreign investment in the hands of extremely corrupted officials — for example Laos, Cambodia and Myanmar ranking respectively numbers 154, 164 and 180 out of 182 countries in the 2011 Corruption Perception Index — can reinforce human rights-violating authoritarian regimes.

The fact that ASEAN has agreed to discuss human rights and recognized a Declaration is a major step forward in the region. Likewise, any institution that can raise awareness of human rights issues in this rapidly developing region is welcome. Local civil society has driven much of this process and is increasingly organized and competent. ASEAN’s human rights body must fight to include as much civil society input and cooperation within its mandate as possible in order to create a real ASEAN community. The AICHR has potential to spearhead an awakening of a human rights consciousness but is severely impeded by the power of member states that remain focused on development the ASEAN way. Resource rich regimes are unlikely to voluntarily empower opposition through a potent regional human rights protection mechanism anytime soon.

Daniel Aguirre is a member of the Networks of Power Research Center at Regent’s College, London, where he also teaches human rights and international law. He has worked extensively with non-governmental organizations in Southeast Asia and continues to work with them in a research capacity. His research interests include globalization, development, business and human rights issues.

Suggested citation: Daniel Aguirre, Human Rights the ASEAN Way, JURIST – Forum, Jan. 10, 2012, http://jurist.org/forum/2013/01/human-rights-the-asean-way.php