The ASEAN Way of Human Rights
This article is posted in conjunction with the 38th Regular Session of the United Nations Human Rights Council, held on 18th June—06 July 2018. What gives this session added value is that much of the agenda is based on commemorating the 70th anniversary of the Universal Declaration of Human Rights (UDHR, 10 December 1948). The declaration directly defines rights that are not possible to be violated upon human beings. The formulation of the UDHR, which is then ratified by the participating countries, is a sign that the notion of human rights is accepted globally. Beforehand, human rights was rife with political content, beginning with the formulation of the Declaration of American Independence in 1776, which stated that “all human beings are created equal”. The idea grew to become widespread and was implemented to establish The European Convention on Human Rights (1950) and the African Charter on Human and People’s Rights (1981). Asia, including us in the Southeast, was the last region to create a regional mechanism in overcoming human rights problems.
The ASEAN nations uphold values of non-intervention and sovereignty, and with the main goal of creating regional stability, human rights issues has not always been number one on the agenda. However, international appeal through the Vienna Declaration and Program of Action has been strong for ASEAN to establish a viable human rights mechanism through the ASEAN Interparliamentary Organization (AIPO). It wasn’t until 23 October 2009 that the ASEAN Intergovernmental Commission on Human Rights (AICHR) was formed, with the main purpose of promoting and protecting human rights. One of the mandates specifically written is that the AICHR should compile the ASEAN Human Rights Declaration (AHRD), with the objective to establish a human rights framework through several ASEAN conventions and instruments.
However, do we really know how effective the AICHR has been working in resolving human rights issues in ASEAN? According to Keohane, the effectiveness of an international institution can be seen from just how deep they take their cooperation. In order to assess that depth, there are three measures that can be analyzed;
Commonality – the extent to which expectations about appropriate behavior and understandings on how to interpret actions are shared by participants in the system; somewhat equal to the notion of “birds of a feather”.
Specificity – the extent to which the expectations of each member are formed in a set of rules within the institution; “setting things in stone”.
Autonomy - the extent to which the expectations of institutions are not dependent on foreign bodies or agents in order to take action or alter the rules it has established; “paving one’s own path”.
Since its establishment, the AICHR has still been focused on capacity building, increasing awareness on human rights, and conducting dialogue with stakeholders. However, there are still many human rights issues that have yet to be resolved. Within 1 year of its establishment, in 2010 alone there were 16 cases reported to the institution, including the victims of human rights violations in Indonesia (1965 and 1998) accompanied by Komisi untuk Orang Hilang dan Tindak Kekerasan (KontraS), the family of a journalist killing in the Philippines, and the victims of violence in Myanmar. So what could be holding them back?
The 26th ASEAN Ministerial Meeting (AMM) Joint Communiqué issued on 24 July 1993 in Singapore, seems to have formed the foundation for most human rights discourse within ASEAN. In it, the agreed upon a collective view on human rights;
“The Foreign Ministers agreed that ASEAN should coordinate a common approach on human rights and actively participate and contribute to the application, promotion and protection of human rights. They noted that the UN Charter had placed the question of universal observance and promotion of human rights within the context of international cooperation. They stressed that development is an inalienable right and that the use of human rights as a conditionality for economic cooperation and development assistance is detrimental to international cooperation and could undermine an international consensus on human rights. They emphasized that the protection and promotion of human rights in the international community should take cognizance of the principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of states. They were convinced that freedom, progress and national stability are promoted by a balance between the rights of the individual and those of the community, through which many individual rights are realized, as provided for in the Universal Declaration of Human Rights.”
As seen above, the principle of territorial integrity and sovereignty still stands strong. According to Theoben Jerdan C. Orosa’s “ASEAN Integration in Human Rights: Problems and Prospects for Legalization and Institutionalization” in the 2012 Asian Regional Integration Review, the AICHR is a regional body with non-adjudicative functions that is tasked with assessing and addressing human rights issues in ASEAN where individual country interests are taken into account through legalization in the form of textual, institutionalization or planning of regional bodies, and the granting of powers and functions. Its negotiation processes that are non –coercive and non-interfering are considered in line with “the ASEAN Way”; a basic principle in shaping the standard of rules for member states against individuals within the regional body.
Some consider that the AICHR has inherent problems when responding to human rights issues due to the fact that it is not equipped with the function of monitoring or investigating. This causes the AICHR to be unable to reconcile the principle of non-interference in the internal afairs of the country with the protection of rights; only enforce the traditional principles of ASEAN, emphasizing that there is a need to uphold the different aspects of history, culture, and circumstances in each country. This ultimately erodes the universal nature of human rights, especially among ASEAN member states. Perhaps an effective way to monitor ASEAN human rights issues is to hold follow-up/report sessions after each Regular Session where each country is obliged to report on their human rights issues addressed beforehand.
As ASEAN nations are “birds of a feather” in terms of upholding the ASEAN Way, all they need now is to sternly “set things in stone” through the enforcement of laws based on the guidance of the AICHR, who exists to “pave its own path” towards significant human rights improvements within the region.