‘Asean human rights law’ taking shape
Established in 1967, the Association of Southeast Asian Nations (Asean) this year celebrates its 50th anniversary. In retrospect, the organisation has progressed well i n accommodating differences between countries and has contributed much to fostering peace and cooperation in the region.
It has always been an inter-governmental, inter-executive organisation. Most of its member states are non-democracies.
Is it, therefore, possible for the regional grouping to develop some kind of Asean human rights law in this context?
If it is a matter of “if and how” Asean (or rather, its member states) implements international human rights law, then it should be noted that all Asean countries have accepted a number of pacts.
These include the United Nations (UN) Charter, the Universal Declaration of Human Rights in 1948, the Vienna Declaration and Programme of Action at the 1993 World Conference on Human Rights, and international human rights treaties to which Asean countries are parties.
This list is mentioned in a number of Asean documents ranging from the Asean Human Rights Declaration (AHRD) and the terms of reference of the Asean Intergovernmental Commission on Human Rights (AICHR).
The international human rights treaties are the backbone of international human rights law; there are nine core conventions. But all Asean countries are party to only three of them: the convention on the elimination of all forms of discrimination against women, the convention on the rights of the child, and the convention on the rights of persons with disabilities.
One possible answer to the above question would be to suggest there is a particular human rights law emerging from the Asean group. If so, the source of law would be derived from Asean as a regional organisation, and the primary entry point must be the Asean Charter 2007, the group’s de facto mini-constitution.
However, the charter is mostly concerned with the functioning of Asean as a regional organisation, and it mentions human rights only in brief. It is not, in substance, a human rights instrument.
It is also riddled with other challenging concepts such as non-interference in the internal affairs of any state that has a questionable stance when it comes to human rights.
The only substantive article on human rights in the Asean charter is Article 14, which calls for the establishment of an Asean human rights body. The AICHR was established pursuant to this article.
The primary instrument on human rights from the Asean (governmental) perspective was then drafted by the AICHR in the form of the Asean Human Rights Declaration 2012.
It starts with basic principles, ringing a universal tone, advocating the right to nondiscrimination, equality before the law, and the vulnerability factor facing groups such as women, children, the elderly, persons with disabilities, and migrant workers.
There follow sections on civil and political rights; economic, social and cultural rights; the right to development; the right to peace; and cooperation in promotion and protection of human rights.
While the declaration itself has some innovative elements, such as the call to protect people with HIV/Aids, and advocacy of the right to development and peace, it has been heavily criticised by analysts as not being congruent with international human rights standards.
The stumbling blocks include the appearance of regional particularities (or “Asean values”) in the text which might undermine universally recognised human rights principles.
These include the overt mentioning of “duties/obligations” (of persons) instead of placing a paramount emphasis on human rights, and a reference to “national and regional context” which might override universal standards.
Other “Asean values” that appear in the declaration represent an omission of various internationally guaranteed rights, particularly the right to freedom of association.
We should also not forget the overly broad limitations on human rights in the guise of “morality”, and an emphasis on “non-confrontation” interplaying with the Asean governmental attachment to national sovereignty. There is also their claim that human rights-related action should not interfere in the internal affairs of states.
On another front, the only convention or treaty emerging from Asean with a bearing on human rights to date is the Asean Convention against Trafficking in Persons, especially women and children (ACTIP), released in 2015. The ACTIP is the first substantive treaty in the region on a specific issue which has human rights implications.
While the convention is an anti-crime instrument, the elements of protection and recovery offered to victims invites a human rights-oriented approach.
The provisions of this regional convention focus on human trafficking based on “exploitation”, the need to criminalise such trafficking and related money-laundering, the obstruction of justice, corruption, the possibility of universal jurisdiction, preventative measures, cross-border cooperation, the protection of victims with measures relating to victim identification and safety of return, legal assistance, and extradition.
Yet, the ACTIP is not perfect. It omits the issue of protecting refugees and asylum seekers, which is covered by an international treaty on human trafficking. The protocol to prevent, suppress and punish trafficking in persons, especially women and children (also known as the Palermo protocol) is attached to the UN convention against transnational organised crime, to which most Asean countries are parties.
Moreover, the space for human rights and democracy is shrinking in the region. This is taking its toll on political rights, such as freedom of expression and self determination through civilian rule based on multi-party systems.
Stepping stones for future development of a human rights law include a call for Asean and its member countries to take the following actions.
First, they should accede to all the international human rights treaties as binding law. These should be implemented effectively on a national level and through the Asean body, with comprehensive measures premised on civil, political, economic, social and cultural rights indivisibly (such as responsive laws, policies and practices).
Second, the grouping should build national systems to protect people’s human rights. At the same time, it should open the door to regional mechanisms if there are no national remedies.
Third, they should ensure that there is no retrogression when Asean instruments are drafted and adopted. Meanwhile, there should be value added to strengthen and not undermine international standards on human rights and democracy.