ASEAN Human Rights Declaration a ‘diamond with flaws’
One of the outcomes of the 21st Summit of the Association of South East Asian Nations (ASEAN) in Phnom Penh, was the adoption of the ASEAN Human Rights Declaration by the ten member states. It has been hailed by some as a landmark development, “a legacy for our children,“ said Philippine Foreign Secretary Albert del Rosario, while others have strongly critised this new instrument
“Our worst fears in this process have now come to pass,“ said deputy Asia director for Human Rights Watch, Phil Robertson.
So what is the truth about this newest human rights declaration?
For a long time the Asia Pacific region has been disparaged as the only geographic bloc not to have a regional human rights instrument. Africa has the African (Banjul)Charter on Human and Peoples’ Rights, the Americas have the American Convention on Human Rights and Europe has the European Convention on Human Rights. So how does the new ASEAN Declaration compare to these treaties?
The first thing to note is that it is a Declaration rather than a convention. States are legally bound by the terms of a convention once they ratify it, that is, it is a convention is a legally binding treaty. A declaration, on the other hand, is not legally binding, but does carry moral weight. For example, the UN Universal Declaration of Human Rightsis not a binding treaty but over time has come to have enormous force and influence in international human rights law.
Furthermore, a Declaration is often the precursor to a binding treaty – the UDHR led to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which are collectively known as the international bill of rights. So the new ASEAN Human Rights Declaration should perhaps be viewed as a first step on the path towards greater protection of human rights in the region, rather than an end in itself.
Before analysing the contents of the Declaration, it is worthwhile considering the drafting process. The modern trend when it comes to drafting human rights instruments is to consult widely with key stakeholders, including civil society. It is common nowadays for draft documents to be released and stakeholders invited to provide feedback. No such process took place with the ASEAN Human Rights Declaration. Indeed, the terms of reference were not even relased, let alone any actual drafts.
In relation to this “closed door” drafting process, the UN High Commissioner for Human Rights, Navi Pillay noted that “This is not the hallmark of the democratic global governance to which ASEAN aspires, and it will only serve to undermine the respect and ownership that such an important declaration deserves”.
Human Rights Watch was less diplomatic in its assessment of the drafting process, describing it as a “full-blown train wreck“. Given this provenance, it is perhaps not surprising that the ASEAN Human Rights Declaration does not compare favourably to the African, American and European human rights instruments.
One of the concerns about this Declaration is the use of “weasel” words that will allow governments to escape from their human rights obligations. For example, Principle 6 talks about the enjoyment of human rights having to be “balanced with the performance of corresponding duties” to other individuals, the community and society.
This implies that the enjoyment of human rights is conditional upon individuals being “good” citizens. This is inconsistent with international human rights norms which mandate that upholding an individual’s human rights is not dependent upon them being responsible members of society; even prisoners and terrorists have human rights.
Principle 7 provides that “the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.” Furthermore, human rights can be limited on a variety of grounds including “national security”, “public order” and “public morality”.
Such language could be construed as a rejection of universal human rights and a return to the days when the mantra of “Asian values” was often touted as justification for non-compliance with international human rights norms.
A further concern is found in Principle 2 which sets out the right of all persons to be free from discrimination on a number of grounds including “race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status.”
A noticeable absence from this list of protected attributes is sexual orientation and gender identity. Although the concluding phrase “or other status” could potentially capture these grounds (and the UN has determined that ‘other status’ does include sexual orientation and gender identity) the decision to omit these two terms from the lengthy list of prohibited grounds of discrimination is troubling.
The UN High Commissioner for Human Rights summed up the effect of the adoption of this Human Rights Declaration when she said:
Other regions have shown how regional human rights systems can evolve and improve over time, and I am confident this will be the same for ASEAN … Looking ahead, it is essential that ASEAN ensures that any language inconsistent with international human rights standards does not become a part of any binding regional human rights convention.
Ultimately, the only conclusion to be reached is that the ASEAN Human Rights Declaration is a flawed instrument. However, there is a Chinese proverb that says: “Better a diamond with a flaw than a pebble without one”.
The new ASEAN Human Rights Declaration is a diamond with significant flaws, but we are better off having this flawed diamond than nothing at all, because it is the start of a a dialogue with ASEAN members about human rights which may ultimately lead to the emergence of a gem, in the form of a regional human rights convention that contains none of the deficiencies in this Declaration.
The Human Rights Declaration is best viewed as the start of the journey for ASEAN towards greater promotion and protection of human rights in its region. It would have been nice to start this journey from a more evolved position, but it is nevertheless a start.
It will now be up to the international community to work with the ASEAN member states to advance the recognition of, and compliance with, universal human rights standards.
Paula Gerber does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
ASEAN adopts ‘flawed’ human rights declaration
The Association of Southeast Asian Nations (ASEAN) adopted its controversial human rights declaration in Phnom Penh on Sunday, despite overwhelming criticisms by civil society groups.
Marking the first day of the 21st ASEAN summit, leaders of the ten Southeast Asian member states ratified the document, which Human Rights Watch (HRW) has described as the “flawed result of a flawed process”.
ASEAN chief Surin Pitsuwan told reporters on Sunday that members had agreed to include a new paragraph at the last minute committing them to international human rights standards. “I think that is a major development and member states feel quite ready for this.”
But Phil Robertson, Deputy Director of HRW’s Asia Division slammed the amendment as “political theatre”.
“As members of the UN, all these governments were supposed to follow the Universal Declaration on Human Rights anyways,” he told DVB.
“What we have here is an effort by ASEAN to try and deceive the international community to give them a pass as they adopt a human rights declaration that by their own admission does not meet international human rights standards.”
On Friday, Pitsuwan conceded that criticisms of the document are “valid”, but said that the bad elements should not be used to outweigh the good.
“I am a realist, he told DVB in an interview. ”I think it is a good beginning and I think it’s what’s possible at this time.”
“It’s probably not up to universal standards, it’s probably subjecting to rights of … the government rather than absolute rights of the individual… but politics is the art of the possible,” he said.
The non-binding declaration was developed through consensus and calls for an end to torture, arbitrary detention and other violations, but activists say it contains major loopholes that allow members to continue to commit abuses with impunity. It was drafted without civil society input and excludes key provisions, including the right to free assembly, and allows members to adapt its application to local circumstances.
Some diplomats have defended the document, claiming that it will help foster change in a region dominated by countries with a poor record on human rights. Pitsuwan insisted that he has witnessed steady progress on human rights since becoming Secretary General in 1999.
But this week alone, the Cambodian government has been accused of threatening and harassing activists in an effort to silence grassroots voices ahead of the ASEAN summit.
“I expect that shepherding through the ASEAN declaration will become Prime Minister Hun Sen’s new ‘excuse shield’ whenever he is accused of being deficient in protecting human rights,” added Robertson.
While Burmese Foreign Minister Wunna Maung Lwin told AP that he welcomes the declaration, the government continues to reject ASEAN interference in its treatment of Muslim Rohingyas.
The Burmese government has come under fire for its treatment of the stateless Rohingyas, since violence flared between them and Arakanese Buddhists in early June and again last month, resulting in the deaths of over 150 people.
The conflict in Arakan state was raised in the meeting of Foreign Ministers on Saturday, but reports suggest that Burma will block any attempt to include a reference to the crisis in the summit’s concluding statement. Pitsuwan has also insisted that ASEAN cannot press Burma on the controversial issue of Rohingya citizenship.
Burma is set to take the ASEAN chair in 2014.
Civil Society Denounces Adoption of Flawed ASEAN Human Rights Declaration
Disregarding the deep concerns expressed by senior United Nations officials, human rights experts and hundreds of civil society and grassroots organisations at the national, regional and international levels, ASEAN leaders nonetheless adopted yesterday an “ASEAN Human Rights Declaration” that undermines, rather than affirms, international human rights law and standards. The document is a declaration of government powers disguised as a declaration of human rights.
It is deplorable that the governments of ASEAN have insisted on making a Declaration that implies that their people are less deserving of human rights than the people of Europe, Africa or the Americas. The people of ASEAN should never accept a lower level of protection of their human rights than the rest of the world.
The ASEAN Human Rights Declaration should have reflected the universally held conviction that respecting human rights necessarily means imposing limitations on the powers of government. Instead, the Declaration that was adopted, through some of its deeply flawed “General Principles”, will serve to provide ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments. These include balancing the enjoyment of fundamental rights with government-imposed duties on individuals, subjecting the realisation of human rights to regional and national contexts, and broad and all-encompassing limitations on rights in the Declaration, including rights that should never be restricted. In many of its articles, the enjoyment of rights is made subject to national laws, instead of requiring that the laws be consistent with the rights.
The Declaration fails to include several key basic rights and fundamental freedoms, including the right to freedom of association and the right to be free from enforced disappearance.
The last-minute addition made to the leaders’ statement upon adopting the declaration, reaffirming ASEAN member governments’ commitment to the Universal Declaration of Human Rights and other human rights instruments in the implementation of the ASEAN Human Rights Declaration, does little to address the fundamental problem. As long as the Declaration’s General Principles and the loopholes they provide remain, a wrong signal will be sent to governments that international human rights obligations may be circumvented.
It is highly regrettable that governments in the ASEAN who are more democratic and open to human rights succumbed to the pressure of human rights-hostile governments into adopting a deeply flawed instrument.
We again raise our objections to the ASEAN’s “consultation and consensus” decision-making system, which has failed its people again. This reveals that the ASEAN human rights agenda is dictated by its Member States with little meaningful consultation with the vast array of civil society and grassroots organizations that are working each day for the human rights of the people of the ASEAN region.
This Declaration is not worthy of its name. We therefore reject it. We will not use it in our work as groups engaged in the protection of human rights in the region. We will not invoke it in addressing ASEAN or ASEAN member states, except to condemn it as an anti-human rights instrument. We will continue to rely on international human rights law and standards, which, unlike the ASEAN Human Rights Declaration, provide all individuals, groups and peoples in ASEAN with the freedoms and protections to which they are entitled. We remind ASEAN member states that their obligations under international law supersede any conflicting provisions in this Declaration. This Declaration should never be the basis to excuse the failure of a state to meet its international human rights obligations.
Aliansi Masyarakat Adat Nusantara
ASEAN Watch Thailand
Asian Center for the Progress of the Peoples (ACPP)
Asian Forum for Human Rights and Development (FORUM-ASIA)
ASEAN LGBTIQ Caucus
Boat People SOS
Cambodian Food and Service Workers’ Federation (CFSWF)
Cambodian Human Rights and Development Association (ADHOC)
Cambodian Independent of Civil-Servant Association (CICA)
Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
Cambodian Workers Center for Development(CWCD)
Cambodian Youth Network (CYN)
Coalition of Cambodian Farmer Community (CCFC)
Forum for Democracy in Burma
Forum LGBTIQ Indonesia
Human Rights Defenders-Pilipinas (HRDP)
Human Rights Education Institute of Burma (HREIB)
IMPARSIAL (The Indonesian Human Rights Monitor)
Independent Democratic of Informal Economy Association (IDEA)
Indonesia for Human’s
Informal Service Center (INSEC)
International Commission of Jurists (ICJ)
International Federation for Human Rights (FIDH)
International Gay and Lesbian Human Rights Commission (IGLHRC)
Justice for Sisters, Malaysia
Knowledge and Rights with Young People Through Safer Spaces (KRYSS)
Lao Movement for Human Rights
Lawyers For Liberty (Malaysia)
Lawyers’ Rights Watch Canada
Migrant Forum in Asia (MFA)
Myanmar Youth Empowerment Program
Myanmar Youth Forum
NGO Coordinating Committee on Development (NGO-COD), Thailand
People’s Action for Change, Cambodia
People’s Solidarity for Participatory Democracy (PSPD)
People’s Watch (India)
Philippine Alliance of Human Rights Advocates (PAHRA)
Philippine Human Rights Information Center (PHILRIGHTS)
Philippine NGO Coalition on the UN Convention on the Rights of the Child
Quê Me: Action for Democracy in Vietnam
Seksualiti Merdeka, Malaysia
South East Asian Committee for Advocacy (SEACA)
Suara Rakyat Malaysia (SUARAM)
Task Force Detainees of the Philippines (TFDP)
Thai Volunteer Service (TVS)
The Commission for Missing Persons and Victims of Violence (Kontras)
Towards Ecological Recovery and Regional Alliance (TERRA)
Vietnam Committee on Human Rights