Before the official announcement, observers and critic had been afraid that the coming Declaration would not be up to the international standards of human rights protection. The ASEAN Intergovernmental Commission on Human Rights (AICHR) - the drafting committee - was heavily criticized, in particular for its lack of transparency. AICHR did open many consultation process with civil society organizations. However, observers said that these consultations often effectively went one way, with representatives from the civil society giving inputs and ideas with relatively minimum response or feedback from members of AICHR. Also, the general public were not given many opportunities to see the draft of the declaration. The civil society had no way of knowing whether their recommendations were incorporated into the declaration or not.
Another issue is the composition of AICHR. In accordance to its Term of Reference (see here), in particular article 5, each member of AICHR represents his/her own government and is accountable to his/her government. Critics say that this would compromise the independence of the Commission. Many questioned the sincerity of ASEAN to build a true human rights regime in Southeast Asia.(i)
When the Declaration was announced, it was received with mixed responses from civil society organizations in Southeast Asia. Critics point out that several provisions in the declaration have the potential to weaken ASEAN members' commitments towards human rights because they set a lower standard compared to the existing international human rights conventions and treaties.
Reading at the Declaration, I would say that the most problematic provisions are paragraph 6 - 8 of the General Principles. I quote them below (emphases are mine):
The three paragraphs above contain some words that echo the Asian Values Debate of three decades ago(ii). In short, proponents of the Asian Values say that human rights principles should be adjusted into the national and regional context to be applicable. Asian communities, they continue, put more emphasis on the importance of the group (society or the community) over the individuals, and that individuals should put forward their obligations and duties towards the community before claiming their rights. In addition, for Asian societies public morality is an important issue and that the state should act as its guardian. At least, this is what their proponents claimed.
The main problem with these three paragraphs is that they provide an opportunity for governments to not provide maximum human rights protection to its citizens. The term "national and regional context" is a handy excuse for governments to not fulfill certain human rights obligations. The concept of "duties" is also useful to shift responsibilities away from governments to the individual citizens. And "Public morality" is a vague concept. Often times it is used to justify repressive actions against certain groups, in particular LGBTs and women.
However, even with these flaws, I remain an optimist. I think the AHRD should be considered as "a living document"(iii). Meaning that its eventual understanding and interpretation will pretty much depend on the actions of ASEAN members in the future. Also, this is the first broadly-based non-binding human rights declaration for ASEAN(iv). The next step after this is to produce a more binding human rights document in the form of ASEAN Convention on Human Rights. Such document will have greater impact for the building of a human rights regime in the future. We hope, if it ever happens at all, the document will be more progressive than the one we have now.
End notes:
Another issue is the composition of AICHR. In accordance to its Term of Reference (see here), in particular article 5, each member of AICHR represents his/her own government and is accountable to his/her government. Critics say that this would compromise the independence of the Commission. Many questioned the sincerity of ASEAN to build a true human rights regime in Southeast Asia.(i)
When the Declaration was announced, it was received with mixed responses from civil society organizations in Southeast Asia. Critics point out that several provisions in the declaration have the potential to weaken ASEAN members' commitments towards human rights because they set a lower standard compared to the existing international human rights conventions and treaties.
Reading at the Declaration, I would say that the most problematic provisions are paragraph 6 - 8 of the General Principles. I quote them below (emphases are mine):
6. 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.
7. 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.
8. The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.
The three paragraphs above contain some words that echo the Asian Values Debate of three decades ago(ii). In short, proponents of the Asian Values say that human rights principles should be adjusted into the national and regional context to be applicable. Asian communities, they continue, put more emphasis on the importance of the group (society or the community) over the individuals, and that individuals should put forward their obligations and duties towards the community before claiming their rights. In addition, for Asian societies public morality is an important issue and that the state should act as its guardian. At least, this is what their proponents claimed.
The main problem with these three paragraphs is that they provide an opportunity for governments to not provide maximum human rights protection to its citizens. The term "national and regional context" is a handy excuse for governments to not fulfill certain human rights obligations. The concept of "duties" is also useful to shift responsibilities away from governments to the individual citizens. And "Public morality" is a vague concept. Often times it is used to justify repressive actions against certain groups, in particular LGBTs and women.
However, even with these flaws, I remain an optimist. I think the AHRD should be considered as "a living document"(iii). Meaning that its eventual understanding and interpretation will pretty much depend on the actions of ASEAN members in the future. Also, this is the first broadly-based non-binding human rights declaration for ASEAN(iv). The next step after this is to produce a more binding human rights document in the form of ASEAN Convention on Human Rights. Such document will have greater impact for the building of a human rights regime in the future. We hope, if it ever happens at all, the document will be more progressive than the one we have now.
End notes:
(i) There is also an issue related to ASEAN's principle of non-intervention. For more discussion on this principle and its relation to building a human rights regime in Southeast Asia, please go here.
(ii) For an introduction on Asian Values go here. You can also read a dissenting article from Amartya Sen on why Asian Values actually do not contradict universal human rights values here. There is also a good wikipedia article you can read as a reference point of the debate here.
(iii) I am borrowing this phrase of "AHRD is a living document" from Yuyun Wahyuninggrum, from Human Rights Working Group (an Indonesian based NGOs Coalition) at a conference in Bali, November last year.
(iv) ASEAN has at least two other human rights declaration before the AHRD: the ASEAN Declaration on the Elimination of Violence Against Women and the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children
(ii) For an introduction on Asian Values go here. You can also read a dissenting article from Amartya Sen on why Asian Values actually do not contradict universal human rights values here. There is also a good wikipedia article you can read as a reference point of the debate here.
(iii) I am borrowing this phrase of "AHRD is a living document" from Yuyun Wahyuninggrum, from Human Rights Working Group (an Indonesian based NGOs Coalition) at a conference in Bali, November last year.
(iv) ASEAN has at least two other human rights declaration before the AHRD: the ASEAN Declaration on the Elimination of Violence Against Women and the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children
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