2012 Dec 06
December 6, 2012

The ASEAN approach to human rights

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The long-awaited document that had become the center of attention among human rights observers and activists across the region was finally adopted by ASEAN leaders at the 21st ASEAN Summit in Phnom Penh recently.

Criticism from NGOs and representatives from the UN’s Office of the High Commissioner on Human Rights had poured in prior to the adoption of this historic document. The main concern of the critics was that the standard of the ASEAN Human Rights Declaration could fall below international standards.

The two primary conventions for global human rights are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two conventions serve a good comparison for the ASEAN HR Declaration.

Besides the two conventions, there is a certain development that exceeds international expectations, such as an acknowledgement of the right to development and the right to peace.

The right to peace is even more interesting since there are no similar provisions in the other international conventions on human rights.

The main criticism against the conventions is their universality principle, which prevails against regional or national contexts. This principle was embodied in the Vienna Declaration and Program of Action in 1993, a declaration which the ASEAN HR Declaration refers to.

Arguably, this principle contradicts the ASEAN code of non-interference. As a matter of fact, ASEAN is an organization based on the principle of non-interference as stated in Article 2 (2) of the ASEAN Charter. The principle has existed since ASEAN’s inception in 1967. Therefore, the ASEAN HR Declaration would have run counter to the ASEAN Charter had it adopted the universality principle in accordance to the Vienna Declaration.

In practice ASEAN has always taken into consideration the regional and national contexts of their member states in its decision-making process. This is somehow different from the Vienna Declaration, which sets aside regional and national contexts in order to respect human rights as universal rights.

Despite the criticisms, certain developments are recognized in the ASEAN HR Declaration, including the acknowledgement of the right to development and right to peace, which can be found neither in the ICCPR nor the ICESCR.

The right to development in the ASEAN HR Declaration is an inalienable human right from economic, social, cultural and political development for the benefit of present and future generations.

There are at least two interesting interpretations concerning this right. First is the inalienable human right from political development. This somehow has a broad interpretation. It could be interpreted as the right of citizens to participate in the political development of ASEAN member states, including enjoying its benefits or it could be interpreted in a narrow way of participating in democracy.

Second is the recognition of the principle of intergenerational equity as in the sustainable development concept. Some ASEAN member states are blessed with mega biodiversity, which has to be developed in a sustainable manner to meet the needs of future generations.

The right to peace is nowhere to be found in international conventions, except for UN General Assembly Resolution 39/11 (1984) which is non-binding.

However, the intention of ASEAN to declare this is nevertheless a form of creating a secure, stable and harmonious Southeast Asian region. Therefore, regional stability is one of the key points addressed many times by ASEAN leaders.

Recently, ASEAN tried in vain to develop a Code of Conduct in the South China Sea as a measureto reduce ongoing tensions between China and its ASEAN neighboring countries, such as Vietnam and the Philippines.

The ASEAN HR Declaration is just an initial step for establishing a human rights mechanism in Southeast Asia. Like the Bangkok Declaration in 1967 that established ASEAN, it was not until 2007 when the ASEAN Charter was adopted, that ASEAN developed an international legal personality with its rights and obligations under international law.

Therefore, ASEAN should aim to develop a binding human rights document while, at the same time, playing a harmonizing role amid the political development gap between ASEAN member states so that the relevant human rights provisions can be enforced effectively in the region. –Ronald Eberhard, Groningen, the Netherlands