By Imelda Deinla
Regulatory Institutions Network, ANU
The form and content of the ASEAN Human Rights Declaration reflect the complex process involved in the drafting, negotiation and approval of the final document among ten governments with diverse human rights and political practices. The final product of this political process, the Declaration, reveals a negotiated and pragmatic approach to the realization of human rights in member countries.
The Declaration must be seen in the broader context of regional integration taking shape in ASEAN – and against the background of the differences in the political and economic development of member countries. The human rights agenda is situated within the broader project of ASEAN Community building, wherein the creation of an integrated economic base of more than 500 million people seeks to establish free movement of goods, capital and skilled labour by 2015. ASEAN is an economically dynamic region competing with fast developing countries in attracting foreign investments; as such, it wants to be seen as a region imbibing international standards for the protection of rights and property.
As governments reaffirm their primary responsibility to protect human rights, they are also staking their claim to control how that responsibility will be exercised. The Declaration provides a ‘framework of regional cooperation’ on human rights that states a preference for a gradualist, non-confrontational and non-political approach to human rights consistent with ASEAN’s ‘building blocks’ strategy to effect change. The region’s elites emphasize and value political stability and security over perceived radical and disruptive reforms; human rights promotion by governments is expected to shadow this direction.
Surprisingly, however, the content of the declaration does not reflect human rights interpreted according to the ‘lowest common denominator’, a phrase often used to describe the ASEAN practice of adopting standards which reflect the lowest commitment made by any of its member countries. There is little of the rhetoric of the ‘ASEAN Way’ and Asian values in the Declaration – two traits that have defined ASEAN from its inception and through which ASEAN had sought to contextualize human rights standards in the past. The contextualization of human rights in the Declaration has been carefully phrased to encourage their ‘realization’. While the Declaration employs the technique of balancing individual and collective rights, to some extent there is an attempt to re-calibrate these principles to reflect ongoing social changes and pressures from outside ASEAN. What has been given emphasis in the Declaration is re-affirmation of fundamental and universal principles of human rights and a commitment to the international human rights obligations of ASEAN members.
The Declaration contains a comprehensive and detailed enumeration of civil, political, economic, social and cultural rights, each of which is accorded equal standing and importance. A separate section on the right to development supports the aim of improving the economic condition of the region’s peoples. A notable provision has also been made to exclude lack of development as an excuse or justification for the violation or derogation of human rights. This is an important provision given many individuals and communities in the region, particularly Indigenous Peoples, are deprived of their fundamental freedoms and rights in the name of economic progress.
The Declaration is a reflection of the ongoing transformation of many societies in Southeast Asia. Foremost among these changes is the increasing significance of civil society and other non-state actors in many member countries, whose advocacy and engagement with ASEAN during the drafting process brought both the process and the outcome into the public eye domestically and internationally. Despite the failure of ASEAN states to ensure inclusive consultation in the drafting process, most notably in relation to the region’s Indigenous Peoples, the Declaration nevertheless contains many of the aspirations of ASEAN peoples and civil society. Nevertheless, it is far from the perfect or ‘ideal’ declaration. The fact that it does not mention a specific enforcement mechanism at the regional or national level adds to scepticism about its practical value and its capacity to ensure human rights recognition for many oppressed and marginalized sectors of society, and for those whose fundamental freedoms are constantly violated by governments of member countries. One recent example after the adoption of the Declaration is the enforced disappearance of Sombath Somphone, a Lao development worker and recipient of the Ramon Magsaysay Awards, the equivalent of the Nobel Peace Prize in Asia, whose abduction by security forces was caught on camera.
What is significant however about the signing of the declaration is that having created a framework of cooperation among member countries, human rights are now excised from the zone of non-interference that ASEAN had previously entrenched among its member countries. The Declaration should not be seen as a negation or limitation but as an expansion of the spaces and opportunities available within which to advance human rights and fundamental freedoms for peoples and communities in the region. There is now greater opportunity to work together – not only among governments, but among NGOs and other civil society organizations, to put flesh into the Declaration. The lesson from other regions is that a human rights declaration can mobilize greater solidarity and spur creative action to make human rights real for the people.