Asean’s Tricky Human Rights Charter
By Kavi Chongkittavorn 18 June 2012
Like the previous Asean Charter which was finally enacted towards the end of 2008, the drafting process for the proposed Asean Declaration for Human Rights (ADHR) has been an arduous one.
The five-page draft was completed by the Asean Intergovernmental Commission on Human Rights (AICHR) in Burma last week after long negotiation sessions over controversial phrases and future implications of the region’s first declaration on human rights.
At this juncture it is an imperfect document yet due to be vetted by Asean foreign ministers next month. The Asean chair, Cambodia, wants a final draft to be approved at the 21st Asean Summit in November. Time is running out to consider input from various civil society organizations (CSOs).
Asean-based CSOs have tried very hard from the very beginning to contribute to the drafting process, but their efforts have achieved very little.
Since 2005, they have gained insights in engaging in the Asean way of doing things, or rather drafting documents. They realized that they have to start early, reading every Asean paper, understanding its procedures and hidden meaning as well as increasing consultations at national and regional levels among themselves. Then they could push forward common positions together at the regional level through their AICHR representatives.
During the Asean Charter drafting back in 2007, CSOs strongly condemned the process which did not consider their input and lacked transparency.
That was understandable as engagement between Asean representatives and CSOs was still nascent—there was no common ground and the relationship was clearly uncomfortable. The charter drafters even ignored specific progressive recommendations put forwarded by the Asean Eminent Persons Group.
Truth be told, at that time CSOs were still unorganized—lacking coordination or understanding on the best ways to engage Asean officials or use the established procedural rules. Mutual suspicion was also rife and it often seems as if they were out to undermine each other.
In retrospect, the first interaction between Asean leaders and selected CSO representatives in Kuala Lumpur in 2005 was unprecedented and heralded as a small opening for the tightly-knit top-down Asean process.
Lest we forget, Asean took more than three decades to recognize that the region’s burgeoning litany of CSOs have a role to play in the decision-making and community-building process.
Back then it generated lots of excitement and goodwill amongst grassroots groups that Asean had gradually moved towards the much needed bottom-up process. They worked together closely and identified a common agenda affecting Asean citizens and their environment.
However, the current ADHR draft demonstrates the hurdles that Asean and CSOs still have to overcome.
Since its inception, at the official level Asean has respected consensus and non-interference principles as sacrosanct. Whenever member countries confront this rationale, the next effort is automatically to find a compromise, watering down the original substance and objective.
Historically, Asean often makes decisions based on the lowest common denominators—ensuring that all members are part of common decisions and agreements. Interesting, these baselines are not static as they evolve over time.
To be more specific, since 1998 they have moved up a few small notches. Asean members are more open now than before in tackling sensitive issues—i.e. intra-conflict, transnational problems and human rights abuses.
Enhanced interaction among leaders has since than become an Asean norm. With the Asean Charter, bloc leaders now have the flexibility to make a stand or decision on certain issues.
Indonesia’s democratization has also directly influenced overall politics in the grouping. Its high regional and international profile helped shepherd Asean to come up with the legal-binding charter and security blueprint, which now forms part and parcel of the Asean community.
In the case of Burma, the jury is still out whether the drastic turnaround after March 2011, which intensified greatly after the April by-elections, would have a similar impact on Asean as Indonesia’s experience.
Early signs indicate that if the reform process continues with regional and international support, Burma could be another catalyst to push Asean forward to the next level—after years of condemnation as a pariah akin to recalcitrant Indonesia under Suharto.
Burma, or Myanmar as it is officially known, today has softened its hardliner views and approach to human rights and democracy.
As the latest round of AICHR talks in Rangoon indicated, Burma no longer belongs to the so-called Vietnam-Cambodia-Laos room. During the Asean Charter’s drafting process, Burma used to be part of this informal coalition as they often gathered in a room to exchange views when confronted by delicate issues—frequently blocking any initiative by more progressive Asean members.
The conservative charter as well as limited AICHR mandate—focusing on promoting rather than protecting human rights—was their enduring legacy. However, this is a possibility that could change when Burma chairs Asean in 2014 as the AICHR terms of reference is also up for review after five years.
Indeed, Burma is tipping the scale between the conservative and progressive members in Asean. Even Vietnam, which shows disdain for any human rights activity at home, has applied to become a member of UN Human Rights Council.
Asean was flabbergasted when Burma established its national human right commission last November—joining Thailand, Malaysia, the Philippines and Indonesia. Although the state-run national human rights mechanism has not been recognized by its Asean and international peers, it was nonetheless a welcome move which the other half of Asean has been reluctant to adopt.
In the past six months, more than one thousand human right abuses were filed at the commission in Naypyidaw to pressure the concerned authorities to respond and prove their mettles. To increase professionalism, representatives of national human rights commissions in Asean have exchanged visits and shared experiences with their counterparts in Burma.
In case of Burma, changes came from top leadership as the influence of CSOs remains severely limited or non-existent. Meanwhile, CSOs in Thailand, Indonesia, the Philippines and Malaysia are spearing efforts for a more comprehensive ADHR draft.
In Thailand, kudos must go to Dr. Sriphapa Petcharameesri after the AICHR member and her team initiated national consultations with Thai CSOs throughout the country. Other Asean members including the Philippines and Indonesia have now followed suit with similar arrangements to garner the CSO contributions.
The scheduled formal regional consultation between AICHR members and CSO representatives in Kuala Lumpur next week marks a new milestone. Regardless of the outcome, it would serve as a template for future engagements similar to the interface between Asean leaders and CSOs.
For the time being, CSO representatives must convince AICHR members to include their input with sound arguments.
Certainly, it is too far-fetched to expect the AICHR to change the drafted declaration or incorporate preferred CSO phrases or objectives. Most of the language used in the draft has been taken from human rights-related documents of the UN and international conventions without comprising on their stated standards and norms.
New protections on the illegal organs trade, the right to development and right to peace have been included. Being Asean, all proposed rights protections can only be carried out in accordance with national and regional particularities under national law. This, of course, provides room for abuses by undemocratic members.
However, the common stand and solidarity among CSOs is essential for sending a strong signal to AICHR members that the final declaration should be a vibrant document. It is considered testimony of their good or ill-intentions for future generations of Asean—either to be inspired or condemned.
Kavi Chongkittavorn is assistant group editor of Nation Multimedia group in Bangkok. He has been a journalist for over two decades reporting on issues related to human rights, democracy and regionalism. The views expressed in this article are his own and do not necessarily reflect those of The Irrawaddy.