By Catherine Shanahan Renshaw
Faculty of Law, University of Sydney
The ASEAN Human Rights Declaration (‘the Declaration’) is not the unequivocal endorsement of universal human rights that civil society organisations had hoped for. Yet, neither is it an affirmation of cultural relativism, the supremacy of state sovereignty, or the principle of non-interference. In most respects, the drafters achieved their aim, which was to ensure that the Declaration met the standards of the Universal Declaration of Human Rights, and also contained an “added value” for Southeast Asia.
Four main objections to the Declaration have been put forward by Civil Society Organisations (CSOs) and by other actors such as the United Nations High Commissioner for Human Rights and the U.S. Department of State. The first is that the Declaration contains the idea of “balancing” rights with duties (Article 6) and that this idea is inimical to the idea of inherent, inalienable rights. The second is that the Declaration includes a reference to the realisation of rights in “national and regional contexts,” bearing in mind “different political, economic, legal, social, cultural, historical and religious backgrounds” (Article 7) and that these phrases introduce the notion of relativism into the Declaration. The third is that the limitations provision, which permits states to restrict rights on the basis of “national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society” (Article 8), potentially applies to all rights listed in the Declaration, rather than just to specific rights, such as freedom of expression and association. The fourth objection is that several rights are constrained by the addition of the phrase “in accordance with State law.” For example, Article 16 of the Declaration states that: “every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements” (emphasis added). The purpose of the following discussion is to assess the strength of these objections.
(1) Balancing rights and duties
Article 6 states:
The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives. It is ultimately the primary responsibility of all ASEAN Member States to promote and protect all human rights and fundamental freedoms.
In her statement to the Bali Democracy Forum on 7 November 2012, the High Commissioner for Human Rights stated that: “the balancing of human rights with individual duties [is] not a part of international human rights law, misrepresents the positive dynamic between rights and duties and should not be included in a human rights instrument.”
A very particular conception of ‘duty’ has traditionally prevailed amongst authoritarian governments in Southeast Asia, and this conception has often been (and in some Southeast Asian states, still is) employed to constrain the liberties and rights of individuals. The 1991 Singapore government’s White Paper, ‘Shared Values’, preferences duty to the social collective over individualism, especially over the individual’s personal freedom, right of choice, and right to justice. The White Paper formed part of the background to the Asian Values debate and the arguments for Asian exceptionalism that underpinned the 1993 Bangkok Declaration.
In relation to ASEAN’s communist members, Vietnam and Laos, the idea of balancing duties with rights is inherently problematic. In communist societies, the possession of rights is contingent on the performance of duties. Because of this element of contingency, many argue that in communist societies, rights are not the equal and inalienable entitlements that the Universal Declaration of Human Rights envisions. The argument is that if the state can bestow or remove rights based on its assessments of citizens’ contributions to the state, then entitlements are not held as rights. Article 51 of the Constitution of the Socialist Republic of Vietnam, modelled on Article 59 of the 1977 Soviet Constitution, states that: “The citizen’s rights are inseparable from his duties. The State guarantees the rights of the citizen; the citizen must fulfil his duties to the State and society.”
Against this background, concerns such as those expressed by the High Commissioner are entirely comprehensible. Yet the general principle of interpretation of human rights instruments is that they are to be read in favour of the rights-holder. On a generous reading of Article 6, the reference to “balancing” means no more than that there is a corresponding duty implicit in every right, and that rights can be seen as correlating to certain duties: the right to life implies a duty not to kill; the right to be free from torture implies a duty not to torture; the right to work implies a duty on the part of the state to provide or facilitate employment. In his (very brief) contribution to the UNESCO Committee on the Drafting of the Universal Declaration of Human Rights (UDHR), Mahatma Gandhi suggested that instead of a list of rights, it might be better for the Committee to “define the duties of every Man and Woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for.”
The final sentence of Article 6 seems deliberately crafted so that it assuages any concerns that the Article might be interpreted in a negative way. For if it is “ultimately the primary responsibility of all ASEAN Member States to promote and protect all human rights and fundamental freedoms,” then the rights of individuals cannot depend on their fulfilment of duties, to the state or to other individuals. The absence of the word “depend” in the final text of the Declaration is significant. In an early draft of the Declaration, drafted 8 January 2012, Malaysia proposed the following ‘duties’ Article:
“the parameters of the enjoyment and exercise of human rights and fundamental freedoms is dependent on the fulfilment of duties and responsibilities towards other individuals, societies, future generations and the State.”
This Article clearly does “misrepresent the positive dynamic between rights and duties”, but it is very different to the final Article included in the ASEAN Human Rights Declaration.
(2) The realisation of rights in “national and regional contexts,” bearing in mind “different political, economic, legal, social, cultural, historical and religious backgrounds”
Article 7 provides that:
All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, 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.
This article closely follows the formulation of Article 5 of the Vienna Declaration:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Does anything of real consequence flow from the difference between Article 7 in the ASEAN Human Rights Declaration and Article 5 in the Vienna Declaration? Article 5 of the Vienna Declaration provides that regardless of historical, cultural backgrounds (which can be borne in mind) it is the state’s duty to promote and protect all human rights and fundamental freedoms, while the ASEAN Human Rights Declaration does not make this clear, and instead merely draws attention to the fact that different political, economic, legal, social, cultural, historical and religious backgrounds should be borne in mind.
It is impossible to understand Article 7, or the reason why it caused so much angst amongst critics of the Declaration, without considering the 1993 Bangkok Declaration, which was prepared by Asian governments in the lead-up to the 1993 Vienna World Conference. Article 8 of the Bangkok Declaration came to represent the high water-mark of cultural relativism:
while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds
The word in the Bangkok Declaration which greatly troubled human rights activists and western leaders at the time of the Vienna World Conference was “while”: “while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process…” (emphasis added). After tortuous negotiation during the Vienna World Conference, in the Vienna Declaration, the qualifying “while” was placed in relation to the claim for particularism, rather than the claim for universalism, translating into an uneasy compromise between universalism and relativism.
Critics of the ASEAN Human Rights Declaration argue that the final sentence of Article 7 is an attempt to revive the ‘Asian values’ debate, and that its purpose is to provide an opening to future concessions to relativism.
First, it should be noted that the phrase in the Bangkok Declaration which most incensed civil society organisations, “national and regional particularities”, and which appeared in early drafts of the ASEAN Human Rights Declaration, was not included in the final text.
Second, it is not at all clear that Article 7 signals a capitulation to relativism. The question is how those who interpret the Declaration take into account the different “political, economic, legal, social, cultural, historical and religious” backgrounds of states in the region. By permitting states, European style, a certain ‘margin of appreciation’? Or by deferring to state sovereignty on all matters that fall within the domestic jurisdiction of the state? There is a significant gulf between these two arguably equally permissible interpretations about the contextualization of human rights.
On one reading, the statement that human rights must be realised “in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds” is entirely unremarkable. As long as one accepts that human rights are universal, indicating that there is at some level a common global standard in the way a right is understood, defined and interpreted, then what is the problem in acknowledging that rights will be realised in different regional and national contexts, where different political, economic, legal, social, cultural, historical and religious backgrounds exist? Surely this is just a statement of fact. Indeed, surely the effective realisation of rights demands that the different political, economic, legal, social, cultural, historical and religious backgrounds of different societies be considered. The action required to ensure that a woman living in a rural area of Indonesia can attain “the highest attainable standard of reproductive health” is surely different to what is required to ensure this same right to a woman living in Kuala Lumpur.
The argument of national and regional CSOs, among them Amnesty International and Human Rights Watch, is that the limitations provision, Article 8 of the ASEAN Human Rights Declaration, provides a “loophole” by which means ASEAN states can evade their responsibilities to protect and fulfil fundamental rights, including non-derogable rights such as the right to life, and the right to freedom from torture and slavery. Critics argue that because the limitations provision is placed in the ‘General Principles’ section of the instrument, states are permitted to limit the scope of all rights on grounds such as national security and public morality, rather than just specific rights (such as freedom of expression).
The limitations provision in the ASEAN Human Rights Declaration is in all important respects exactly the same as the provision in the UDHR, Article 29(2). The UDHR provision is also placed in a general section of the text, as is the limitations provision in the American Declaration of the Rights and Duties of Man (Article 28). Thus the argument could potentially be made that Article 29(2) of the UDHR potentially applies to all rights in the UDHR, and that Article 28 of the American Declaration potentially applies to all rights in the American Declaration. But no one ever attempts to make these arguments. This is because international law is very clear on the point that some human rights are non-derogable, such as: the right to life; the right to be free from torture; the right to be free from slavery and servitude; the right to freedom of thought, conscience and religion.
The Declaration is, as the drafters repeatedly insisted, a political instrument. Its utility will depend on how it is invoked, by civil society actors and by lawyers, and how the governments of the region respond to it. It is no weaker than it would otherwise have been because of where the limitations provision in the AHRD is located.
A more interesting objection made by civil society organisations is that ‘public morality’ should not have been included as a limitation on the exercise of rights and freedoms. The Asia Pacific Forum on Women, Law and Development (APFWLD), for example, which sought the advice of “United Nations special mandate holders and CEDAW committee members,” argued that public morality should not be included in Southeast Asia’s regional instrument because “morality clauses have the potential to undermine women’s rights.” The APFWLD argued that ‘morality’ reflected the dominant culture, which tended to favour some, who were mostly men in power, and marginalize others, who were mostly women. They argued that in Southeast Asia, political and religious hierarchies made women the subject of patriarchal and hetero-normative standards, and excluded the narratives and perspectives of minorities, denying them access to the processes of deliberation and decision-making within societies.
Where there is no common position on a particular moral issue within a state or region, the practice of bodies such as the European Court of Human Rights and the Human Rights Committee is to defer to state’s views on the necessity of a public morality limitation. On matters of public morality, states are seen, “by reason of their direct and continuous contact with the vital forces of their countries as being “in principle in a better position than the international judge to give an opinion on the exact content of these requirements” (Handyside v. United Kingdom, App. No. 5493/72, at paras. 48-49 (Dec. 7, 1976)). The difficulty perceived by Southeast Asian critics of a public morality limitation in the AHRD, is that the diversity of opinion on issues of public morality within the region will provide states with a wide latitude to determine themselves whether or not freedoms should be restricted in the interests of preserving the prevailing morality.
(4) National Law
The ASEAN Human Rights Declaration qualifies some rights by stipulating that national laws may determine the scope and exercise of that right. This qualification exists in relation to five rights: the right to asylum (AHRD Art. 16); the right to a nationality (AHRD Art. 18); the right to marry, found a family and dissolve marriage (AHRD Art. 19); the right to political participation (AHRD Art. 25); the right to form and join a trade union (AHRD Art. 27(2)).
The UDHR does not contain any similar limitations. It is important to note, however, that other regional instruments do contain these types of provisions. For example, the American Declaration on the Rights and Duties of Man (ADRDM) refers to national law in relation to the right to asylum (ADRDM Art. 22(7)) and in relation to the right to marry and found a family (ADRDM Art. 17). The Arab Charter on Human Rights (ACHR) provides that some rights, such as rights concerning family and marriage, and rights of minorities to their own culture, are subject to national law. The African Charter on Human and People’s Rights also provides that some rights – such as the right to political participation – must be exercised “in accordance with the provisions of the law” (Art. 13). ASEAN states are not alone in wishing to preserve, in relation to some rights, a domain where national law prevails. The question is how these provisions are understood and interpreted.
Critics argue that provisions stating that rights must be exercised “as prescribed by law” are problematic, because the laws themselves might be unjust. The inclusion of these kinds of provisions seems contrary to the very purpose of a regional human rights declaration, which is to further the protection of the rights of individuals by subjecting national laws and practices to the scrutiny of an institution beyond the state.
But is it really the case that these provisions mean that national law is sacrosanct, and that however unfair, discriminatory or harmful they might be, they are immune from criticism?
The overarching object and purpose of all human rights declarations is to secure “the recognition and observance of the inherent dignity and equal and inalienable rights of all members of the human family” (Preamble, UDHR). Other values, such as sovereignty, or the security and integrity of the state, are secondary to this purpose. This means that in the interpretation of instruments such as the ASEAN Human Rights Declaration, a meaning that would realize the aims of the Declaration, rather than one which would restrict the obligations of states to protect and realize individual rights, must be preferred. This means that Articles 16, 18, 19, 25 and 27(2) of the Declaration must be understood in the context of an instrument which is specifically designed to advance the rights of individuals and groups, through a regional articulation of universally recognised rights. This does not mean that states will not argue that national laws in relation to the marriage, or asylum, or political participation, or trade unions, or nationality, should prevail. But it does mean that these laws may be contested and must be justified, taking into account the purpose of international human rights law.
“No declaration of human rights will ever be exhaustive or final” Jacques Maritain concluded, after pondering the history of rights ideas which underpinned the UDHR. The ASEAN Human Rights Declaration is imperfect, but it is not fatally flawed. What matters now is how different actors give meaning to, contest, and finally implement, its provisions. To dismiss the Declaration, or to ignore it, would be short-sighted.