COM 04/2019

Human Rights in Southeast Asia and the ASEAN Intergovernmental Commission on Human Rights (AICHR)

Human rights under fire?

Democracy, rule of law and human rights in Southeast Asia are under immense pressure. Increasingly authoritarian governments in the region, a difficult “fake news” discourse, as well as a decreased focus on human rights under a different US administration coinciding with China’s rise are some of the major contributing factors.

The region is not short of examples of oppression of fundamental freedoms. In Thailand, despite the governments’ statement to make human rights a national priority, there is no real freedom of assembly, the sweeping and largely unchecked powers of the NCPO were concerning and to what extent things will change in post-election Thailand is yet to be seen. Its fishing industry infamous for its modern-day slavery is another case in point. In Laos, a decree entering into force last November tightened the government’s grip on Civil Society Organisations. There is reasonable concern that the case of Laotian activist Sombath Somphone, who is still missing, is but the tip of an iceberg. In Myanmar, crimes against humanity have been committed with the ethnic cleansing of the Rohingya who continue to suffer during one of Asia’s worst refugee crises. The rule of law is further eroded in the Philippines where a President, who compared himself to Adolf Hitler, vowed to kill millions of drug dealers and made a point of withdrawing the Philippines from the International Criminal Court’s Rome Statue. Unfortunately, the list goes on.

In addition to blunter authoritarian strategies, a misguided fake news discourse is leading to more and more legislative barriers to free speech in Southeast Asia, characterised by laws employing broad and vague terms that severely hamper the ability to freely express opinion on political issues, as well as carrying the potential to target social activists, journalists and ordinary citizens who express discontent with their respective government. Malaysia, Indonesia, Vietnam, Cambodia, Thailand, the Philippines, Singapore and many others have either considered or used such legislation.

In addition to factors that evolve from within the region, external factors play a huge role. The US under President Trump is downgrading the importance of human rights and is generally seen to become more isolationist. The People’s Republic of China is happily filling the perceived gaps and its preferred “check-book diplomacy”, its increasingly assertive vision for the region, and the opportunities created by a US retreat coincide to establish fertile soil for human rights violations and impunity.

Human rights reports by major organisations such as Amnesty International, Human Rights Watch or annual human rights report by the US Department of State all send one unequivocal message: Asia is a frontline in the fight for human rights. This dim but important message is underlined by several UN end of mission statements in the region as well as by renowned press and political freedom indices.

Conversely, Human rights defenders and activists from Thailand and other parts of Asia work passionately to push back against government impasses on human rights issues. Individuals and organisations make continued and tangible impact on human rights advocacy in the region.

Human Rights ≠ Asian Values?

The main distinction between most parts of rights and human rights is that while “regular” rights apply subject to place and time, human rights apply at all times to every human being across the globe. They are, as it were, universal. According to Article 1 of the Universal Declaration of Human Rights (UDHR) “[a]ll human beings are born free and equal in dignity and rights.” 

However, this principle is not uncontested, and one major criticism comes from cultural relativism, which maintains that universal human rights are neo-imperialistic and culturally hegemonic. The UDHR was drafted before the end of the decolonization process, at a time where numerous developing nations transposed the standards set out in the Declaration in their domestic legislation due to western influence. The content of the rights protected as human rights are strongly influenced by the Western point of view and thus, cannot fit in societies where the cultural values are different, such as Asian societies, as some scholars have argued. They hold that current human rights principles are the product of the Western liberal tradition and do not encompass notions of wrong and right specific to other cultures, therein making its claim to universality untenable. An often quoted example is how the importance of the community in Asian culture is incompatible with the primacy of the individual, upon which the Western notion of human rights rests.

Notwithstanding, after the Second World War, it was often countries particularly from the Global South that came out of a period of colonialization that called for international human rights which would bind all states and many developing countries were in fact involved in the birth of these rights. In fact, more often than not, cultural relativists’ arguments come from governments rather than civil societies and one has to be careful as to their strategic purpose. Individual members of societies or civil-society organizations across the globe often agree with most human rights as it protects them on an individual level. Despite a debate on cultural relativism, it is hard to argue that many of the most basic rights such as the right to not be arbitrarily deprived of your life, the right to a fair trial, the right not to be arbitrarily detained, the right to food and safe water – just to name a few – are not shared globally.

Protection of Human Rights in Southeast Asia

An important – at least on paper – actor involved in the protection of human rights in the region is of course the Association of Southeast Asian Nations ASEAN.

Since ASEAN’s inception in 1967, human rights protection has only slowly climbed up the agenda. Even today, with a regional, intergovernmental commission firmly in place and abundant references to upholding and protecting human rights in Southeast Asia in official documents, human rights protection is porous at best. What one is to make of the mechanisms and progress to protect human rights in Southeast Asia depends heavily on one’s own expectations, standards and theoretical approach. It is however objectively observable that ASEAN’s rhetorical commitments stand in stark contrast to the region’s reality in this respect.

ASEAN Documents, ASEAN Rhetoric – The Legalisation of Human Rights Protection

As early as 1993, at the United Nations World Conference on Human Rights in Vienna, the ASEAN member states – six at the time: the five founding members and Brunei – were part of a group of nations that produced and endorsed the Vienna Declaration and Programme of Action. The “Vienna Declaration“ holds that all states who endorsed it accept the universality of human rights as well as a number of more specific provisions pertaining to the protection of minorities or the individual rights to seek asylum from prosecution.[1] 

Not a month later, at the 26^th ASEAN Ministerial Meeting in Singapore, human rights protection had also found its way into the official documents of ASEAN, stating that the ASEAN Foreign Ministers are

“in support of the Vienna Declaration and Programme of Action of 25 June 1993, [and that] they agreed that ASEAN should also consider the establishment of an appropriate regional mechanism on human rights.”[2]

While there was no great amount of progress or indeed discussion on human rights and the protection thereof in the following 10 years or so, it continued to play a role in civil society discussions and a Working Group for an ASEAN Human Rights Mechanism was established by the civil society and later officially recognised by ASEAN.[3] In addition to the efforts of this working group and numerous mentions of human rights and its protection in ASEAN documents and discourse especially since 2004, the adoption of the ASEAN Charter in 2007 was a real and tangible step forward in ASEAN’s evolution towards meaningful human rights protection.

ASEAN’s main legal body clearly references the need and intention to protect human rights in Southeast Asia. It references this, in fact, even in the preamble of the document where it states adherence to “respect for and protection of human rights and fundamental freedoms”.[4] Further, Article 14 demands that a human rights body is to be created “in conformity with the purposes and principles of the ASEAN charter relating to the promotion and protection of human rights and fundamental freedoms”.[5]

Other relevant ASEAN documents are no less shy when it comes to human rights protection commitments. The ASEAN Political-Security Community (APSC) Blueprint 2009 as well as the current APSC Blueprint 2025 and the ASEAN Community Vision 2025 for example, all contain clear statements with regards to the protection of human rights, going as far as encouraging ASEAN member states to engage with the relevant human rights mechanisms to which they are party.[6]

In addition to these documents and numerous commitments there, ASEAN also adopted the ASEAN Human Rights Declaration (AHRD) in 2012, after the document was drafted by the ASEAN Intergovernmental Commission on Human Rights (AICHR). The ASEAN Human Rights Declaration generally adopts many of the standards of the Universal Declaration of Human Rights (UDHR). Articles 10 and 26 state that all ASEAN member states affirm all of the civil, political, economic, social and cultural rights in the UDHR.[7] Conversely, it differs from the basic assumptions of a number of UDHR provisions, for instance referring repeatedly to exercising rights in accordance with national law.

Relative Universality

Perhaps a great oxymoron within the declaration, and within the human rights discourse in ASEAN in general, is the question of universality of human rights. The declaration states in article 7 that

“[a]ll 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]

While ASEAN documents above cited the universality of human rights in the way it was previously embraced by the Vienna Declaration, the consideration of the regional and national context and bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds, introduces a degree of relativism. The ADHR enshrines this different view on universalism throughout the document, such as in article 16, stating that “every person has the right to seek and receive asylum in another State”, but again tellingly adding that this must be “in accordance with the laws of such State”.[9]

ASEAN documents, declarations and its main legal body, the ASEAN charter are strong on their commitment to the protection of human rights, setting aside the relativism claims around universality. However, the attempt to reconcile all efforts of human rights protection with core ASEAN principles such as the ASEAN way and non-interference, relativises the overall applicability, and therefore the implementation of human rights protection in the spirit of the Vienna Declaration and the UDHR. Perhaps unsurprisingly,  the core principles of ASEAN reign supreme in the field of human rights as they do in ASEAN’s general modus operandi. To be sure, the ADHR ends on the following, unambiguous article:

“[n]othing in this Declaration may be interpreted as implying for any State, group or person any right to perform any act aimed at undermining the purposes and principles of ASEAN”.[10]

The ASEAN Intergovernmental Commission on Human Rights (AICHR)

The ASEAN Intergovernmental Commission on Human Rights (AICHR) was the answer to the ASEAN charter’s article 14 demand to create a human rights body. After the charter’s adoption in 2007, it took two years to establish it. Its terms of reference (ToR) were agreed to by the member states of ASEAN in 2009 and generally speaking, AICHR echoes the theme laid out above: rhetorical commitment with little to no protective impact.

Composition and Mandate

AICHR is composed of ten representatives that serve for three years, with the possibility to renew an appointment once. The representatives can come from different backgrounds, such as academia, civil society, foreign service and other government officials. ASEAN member states can freely choose, and indeed have done so in the past, whether they want to send a seasoned human rights expert from a civil-society background, or an official who may even concurrently hold a government position. Regardless of who is sent,  it is crucial to note that each appointee is “accountable to the appointing government”.[11] At the same time, in line with ASEAN’s basic principles of decision-making, all decisions have to be made in consensus, effectively rendering each member, and therefore government, full veto power in every decision. AICHR is, as the name suggests, strictly intergovernmental and virtually nothing in the ToR transcends this set-up. The fact that a government can send a person as a representative that is part of the government and may or may not have any human rights background or indeed interest, speaks volumes.

AICHR functions furthermore as a “consultative body”.[12] Bound by the strict ToR, it has zero independent agency quality with no powers to independently monitor. It has no independent,  permanent bureaucratic structure, no non-compliance mechanisms and most importantly, as mentioned above, cannot take any decisions, make remarks or even recommendations with regards to any human rights violation if there is no unanimity. In fact, it does not have the mandate to even receive human rights complaints. But even if a complaint were to make it to the commission, the principle of unanimity means that a potential government that would be implicated in a possible human rights violation would have to join a statement or action by AICHR against itself. This is unlikely however, not least since the representative is hand-picked by the respective government and as stated above, may even be part of that government.

Promotion, not Protection

Based on the ToR, AICHR has not much to offer in terms of protecting human rights and can only focus on promotion thereof, despite the fact that its very purpose is stated to be both.[13] AICHR is specifically tasked to “enhance public awareness of human rights through education, research, thematic studies and dissemination of information”[14], for which it has a slightly stronger mandate than for the protection of human rights.

Lastly, again reigning in on its independence and the ability to actively protect human rights, AICHR is subordinate to the ASEAN Foreign Ministers. It reports to the ministers at the ASEAN Foreign Ministers Meeting and it is them who must approve the workplan and proposed budget of the commission. Therefore, ASEAN governments, via their Foreign Ministers, have yet another means of great and direct influence on the commissions scope and work, not least by controlling the budget. The commission’s initial funding in 2009 for instance, as announced by then Thai Prime Minister Abhisit Vejjajiva, comprised of a meagre US$200.000, or US$20.000 per member state.[15] By comparison, the budget of the Inter-American Commission on Human Rights in the same year was close to US$ 4.000.000.[16]

Overall, it should therefore come as no surprise that AICHR has not yet taken any public action or protective measures on a human rights violation that has occurred within ASEAN since its inception in 2009. Southeast Asia exemplifies a region where promoting human rights and having set up a human rights mechanism has not yet led to effective human rights protection.

While the ToR are strict and preclude AICHR from exercising much or indeed any meaningful protection of human rights, promotion and continued discourse have merits and AICHR focuses on such promotional human rights activities, including trainings, workshops, debates and seminars. Furthermore, despite the fact that the ToR do not foresee for the commission to receive, review, let alone act upon human rights complaints, they do state that AICHR is to “obtain information from ASEAN Member States on the promotion and protection of human rights”[17]. So far, AICHR’s interpretation of this has been timid, but it may not always remain so. In conclusion, for the time being, AICHR is a promotional rather than protective human rights body.

[1] United Nations Human Rights Office of the High Commissioner (1993): Vienna Declaration and Programme of Action, available at: https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx (accessed 1 May 2019)

[2] AMM (1993): Joint Communiqué of the 26^th ASEAN Ministers Meeting, available at: https://asean.org/?static_post=joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993 (accessed 1 May 2019)

[3] Working Group for ASEAN Human Rights Mechanism, available at: http://www.aseanhrmech.org (accessed 1 May 2019)

[4] ASEAN Charter (2007): Preamble, available at: https://www.asean.org/wp-content/uploads/2012/05/11.-October-2015-The-ASEAN-Charter-18th-Reprint-Amended-updated-on-05_-April-2016-IJP.pdf (accessed 1 May 2019)

[5] Ibid: Art. 14.

[6] ASEAN Political-Security Blueprint 2025: A.2.5, available at: https://www.asean.org/storage/2012/05/ASEAN-APSC-Blueprint-2025.pdf (accessed 1 May 2019)

[7] ASEAN Human Rights Declaration (2012): Art 10, Art. 26, available: https://asean.org/asean-human-rights-declaration/ (accessed 1 May 2019)

[8] Ibid: Art. 7, emphasis added.

[9] Ibid: Art 16.

[10] Ibid: Art 40.

[11] AICHR Terms of Reference (2009): 5.2, available at: https://www.asean.org/storage/images/archive/publications/TOR-of-AICHR.pdf (accessed 1 May 2019)

[12] Ibid: Art 3.

[13] Ibid: Art 1.1.

[14] Ibid: Art 4.3, 4.11.

[15] Remarks by H.E. Abhisit Vejjajiva, Prime Minister of the Kingdom of Thailand, on the Occasion of the Inaugural Ceremony of the ASEAN Intergovernmental Commission on Human Rights (AICHR) (2009), available at: https://asean.org/?static_post=remarks-by-he-abhisit-vejjajiva-prime-minister-of-the-kingdom-of-thailand-on-the-occasion-of-the-inaugural-ceremony-of-the-asean-intergovernmental-commission-on-human-rights-aichr (accessed 1 May 2019)

[16] Speech by the President of the Inter-American Commission on Human Rights Felipe González (2010), available at: http://www.cidh.org/Discursos/04.15.10eng.htm (accessed 1 May 2019)

[17] AICHR Terms of Reference (2009): 4.10.