A post by Jin Qin Lim
Introduction
In recent years, the region occupied by the Association of Southeast Asian Nations (ASEAN) has been described as ‘facing a human rights crisis’.[1] Indeed, one would be hard-pressed to dispute such a view. From the extrajudicial killings in the Philippines to evidence of ethnic cleansing in Myanmar, the news portrays a region in which human rights - whether positive or negative - are consistently challenged and undermined by member states.[2] Coupled with these more well-known examples are other worries: freedom of the press, the treatment of LGBT individuals, and the targeting of human rights activists, to name a few.[3] And yet, concurrent with these concerns is the growing institutionalisation of human rights in the region, notably evident in the formation of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009 and the adoption of the ASEAN Human Rights Declaration (AHRD) in 2012. This essay will seek to tease out the reasons for this chasm between rhetoric and practice. To do so, it will briefly outline the history of the aforementioned human rights mechanisms, teasing out strengths and criticisms. It will then proceed to contextualise these developments within the specific historical context of the region, ultimately aiming to explain the following: what does this development towards institutionalisation means for human rights in the region, and why - despite this - is there a reluctance to embrace legally binding instruments to uphold these rights?
Background, Strengths and Criticisms: the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Human Rights Declaration (AHRD)
The ASEAN Intergovernmental Commission on Human Rights (AICHR) was inaugurated in October 2009 during the 15th ASEAN Summit in Thailand. The ostensible aim of the commission is to ‘pursue forward-looking strategies to strengthen the regional cooperation on human rights’.[4] The Commission is comprised of representatives from each member state and meets twice a year to discuss progress on its mandates. Chief amongst the tasks assigned to the Commission was the goal to develop a human rights declaration, which led to the development and eventual adoption of the ASEAN Human Rights Declaration (AHRD). Adopted by all member states in November 2012, the AHRD can be viewed as another step towards the formation of a human rights regime in the ASEAN region. The opening preamble of the declaration articulates a bold agenda: to reaffirm the importance of human rights in the region and its commitment to promoting and protecting ‘human rights and fundamental freedoms, as well as the principles of democracy, the rule of law and good governance.’[5]
However, since the creation of the AICHR and the adoption of the AHRD, many people, from activists to scholars, have criticised these mechanisms and instruments as vacuous.[6] In an article focused on the implications of the declaration, which is seen as the foremost human rights development in the ASEAN region, Ginojf Naldi and Konstantinos D. Magliveras write: ‘[f]rom the outset, it should be clarified that the AHRD must be considered an instrument of a political nature’, underscoring the lack of binding legal obligations within the existing system.[7] Activists have further criticised the declaration for potentially undermining human rights, arguing that the declaration stands for the mere reinforcement of government powers. For example, they raise concerns over clauses such as human rights being contingent on ‘the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives’, as well as the idea that the recognition of human rights is still, in some ways, subordinate to considerations over ‘national security, public order, public health, public safety, public morality’.[8] These clauses necessarily leave space for states to ignore human rights and violate them.
These problems are further compounded when one considers the nature of the AICHR, which requires consultation and unanimous consensus for any meaningful action to take place. In setting up the Commission, each member state was imbued with veto powers. Naturally, when one considers the diverse positions and interests within the Association, these sorts of rules make violations more difficult to scrutinise, with each state protected from scrutiny as a result of veto powers.
Why is there a reluctance to adopt legally binding instruments?
In considering these criticisms, one is invited to interrogate this general reluctance towards a more robust stance on human rights, as well as a general hesitation towards adopting legally binding human rights instruments amongst the Association’s members. A key explanatory factor is the history of the ASEAN region - a largely postcolonial region with well-documented suspicions over the implications of global human rights on state sovereignty.[9] In other words, this broader historical context helps contextualise these general attitudes of hesitation - the goal of self-governance and sovereignty were essential components of postcolonial struggles, and these concepts have necessarily continued to shape the policies, stances and attitudes of many ASEAN states after independence was achieved.[10] Other explanatory factors include the reality of sheer political expediency and power - to adopt legally binding instruments would limit the ability of governments to maneuver or sustain power.[11] Finally, one could point to the immense diversity of the region in terms of political structures and interests, which presents unique challenges in building consensus on what ‘rights’ deserve protection. As Hsien-Li Tan writes: ‘[e]nthusiasm for Asia to have a system of human rights protection must recognise the disparate political structures that range from communism like in China and Vietnam; the “semi-authoritarianism” of Singapore and Malaysia; to full democracies such as India, the Philippines, South Korea, and Japan.’[12]
Conclusion: what do these developments mean?
While many have criticised the weaknesses of the AICHR and the AHRD, others argue that these developments represent more than a ‘mere window-dressing exercise’.[13] Along similar lines, one could view these developments as small but crucial steps in the formation of more robust mechanisms to protect human rights. Indeed, even if these moves were understood as political and meant to legitimate the Association as a credible, reliable organisation (but without sacrificing the powers of the state), there must have been some degree of acknowledgement about the power and relevance of human rights and the rule of law in the contemporary world. Whether this appeal to these notions is suggestive of a greater appetite to strengthen human rights in the region is yet to be seen. What is clear is that, despite the historical context and diversity of the region, some steps have been made to codify and implement certain provisions to protect human rights, although with great shortcomings. Any further change requires the mustering of political will and input from other actors, such as those involved in civil society, to push the needle further.
Bibliography
‘ASEAN has more work to do on LGBT rights’. Myanmar Times, 3 October 2017. https://www.mmtimes.com/news/asean-has-more-work-do-lgbt-rights.html.
‘ASEAN Human Rights Declaration’. Association of Southeast Asian Nations, accessed 4 February 2019. https://asean.org/asean-human-rights-declaration/.
‘ASEAN Intergovernmental Commission on Human Rights (AICHR)’. Association of Southeast Asian Nations, accessed 4 February 2019. https://asean.org/asean-political-security-community/asean-intergovernmental-commission-on-human-rights-aichr/.
‘Asean’s Toothless Council’. The Wall Street Journal, 22 July 2009. https://www.wsj.com/articles/SB10001424052970203517304574303592053848748.
Bevins, Vincent. ‘It’s not just Burma: Human rights are under attack across Southeast Asia, advocates say’. The Washington Post, 8 September 2017. https://www.washingtonpost.com/news/worldviews/wp/2017/09/08/its-not-just-burma-human-rights-are-under-attack-across-southeast-asia-advocates-say/?utm_term=.c8b7eccb8f26.
Collins, Alan. ‘From commitment to compliance: ASEAN's human rights regression?’. The Pacific Review (2018): 1-30. doi: 10.1080/09512748.2018.1476402.
Forsythe, David P.. Human Rights in International Relations, 2nd ed. Cambridge: Cambridge University Press, 2006.
Lewis, Simon and Thu Thu Aung. ‘Myanmar's 'ethnic cleansing' of Rohingya continues, U.N. rights official says’. Reuters, 6 March 2018. https://www.reuters.com/article/us-myanmar-rohingya/myanmars-ethnic-cleansing-of-rohingya-continues-u-n-rights-official-says-idUSKCN1GI0C2
Naldi, Gino J. and Konstantinos D. Magliveras, ‘The ASEAN Human Rights Declaration’. International Human Rights Law Review 3 (2014): 183-208.
‘Philippines: Duterte’s ‘Drug War’ Claims 12,000+ Lives’. Human Rights Watch, 18 January 2018. https://www.hrw.org/news/2018/01/18/philippines-dutertes-drug-war-claims-12000-lives.
Ong, Justin. ‘PM: Malaysia, Asean must guard against foreign intervention'. Yahoo News, 23 February 2019. https://sg.news.yahoo.com/pm-malaysia-asean-must-guard-042613249.html.
Tan, Hsien-Li. The ASEAN Intergovernmental Commission on Human Rights Institutionalising Human Rights in Southeast Asia. Cambridge: Cambridge University Press, 2011.
‘UN official welcomes ASEAN commitment to human rights, but concerned over declaration wording’. UN News, 19 November 2012. https://news.un.org/en/story/2012/11/426012#.UPgVKGckSOI.
[1] Alan Collins, ‘From commitment to compliance: ASEAN's human rights regression?’, The Pacific Review (2018): 1, doi: 10.1080/09512748.2018.1476402.
[2] Simon Lewis and Thu Thu Aung, ‘Myanmar's 'ethnic cleansing' of Rohingya continues, U.N. rights official says’, Reuters, 6 March 2018, https://www.reuters.com/article/us-myanmar-rohingya/myanmars-ethnic-cleansing-of-rohingya-continues-u-n-rights-official-says-idUSKCN1GI0C2; ‘Philippines: Duterte’s ‘Drug War’ Claims 12,000+ Lives’, Human Rights Watch, 18 January 2018, https://www.hrw.org/news/2018/01/18/philippines-dutertes-drug-war-claims-12000-lives.
[3] Vincent Bevins, ‘It’s not just Burma: Human rights are under attack across Southeast Asia, advocates say’, The Washington Post, 8 September 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/09/08/its-not-just-burma-human-rights-are-under-attack-across-southeast-asia-advocates-say/?utm_term=.c8b7eccb8f26; ‘ASEAN has more work to do on LGBT rights’, Myanmar Times, 3 October 2017, https://www.mmtimes.com/news/asean-has-more-work-do-lgbt-rights.html.
[4] ‘ASEAN Intergovernmental Commission on Human Rights (AICHR)’, Association of Southeast Asian Nations, accessed 4 February 2019, https://asean.org/asean-political-security-community/asean-intergovernmental-commission-on-human-rights-aichr/.
[5] ‘ASEAN Human Rights Declaration’, Association of Southeast Asian Nations, accessed 4 February 2019, https://asean.org/asean-human-rights-declaration/.
[6] ‘Asean’s Toothless Council’, The Wall Street Journal, 22 July 2009, https://www.wsj.com/articles/SB10001424052970203517304574303592053848748.
[7] Gino J. Naldi and Konstantinos D. Magliveras, ‘The ASEAN Human Rights Declaration’, International Human Rights Law Review 3 (2014): 184.
[8] ‘ASEAN Human Rights Declaration’; ‘UN official welcomes ASEAN commitment to human rights, but concerned over declaration wording’, UN News, 19 November 2012, https://news.un.org/en/story/2012/11/426012#.UPgVKGckSOI.
[9] Hsien-Li Tan, The ASEAN Intergovernmental Commission on Human Rights Institutionalising Human Rights in Southeast Asia (Cambridge: Cambridge University Press, 2011), 17.
[10] In recent years, Heads of States within the region have made bold statements against the idea of ‘foreign intervention’ in general. The most recent example of this includes the Prime Minister of Malaysia. See Justin Ong, ‘PM: Malaysia, Asean must guard against foreign intervention', Yahoo News, 23 February 2019, https://sg.news.yahoo.com/pm-malaysia-asean-must-guard-042613249.html.
[11] David P. Forsythe, Human Rights in International Relations, 2nd ed. (Cambridge: Cambridge University Press, 2006), 3
[12] Tan, The ASEAN, 1.
[13] Ibid, 248.