One of the outcomes of the 21st Summit of the Association of South East Asian Nations (ASEAN) in Phnom Penh, was the adoption of the ASEAN Human Rights Declaration by the ten member states. It has been hailed by some as a landmark development, “a legacy for our children,“ said Philippine Foreign Secretary Albert del Rosario, while others have strongly critised this new instrument
“Our worst fears in this process have now come to pass,“ said deputy Asia director for Human Rights Watch, Phil Robertson.
So what is the truth about this newest human rights declaration?
For a long time the Asia Pacific region has been disparaged as the only geographic bloc not to have a regional human rights instrument. Africa has the African (Banjul) Charter on Human and Peoples' Rights, the Americas have the American Convention on Human Rights and Europe has the European Convention on Human Rights. So how does the new ASEAN Declaration compare to these treaties?
The first thing to note is that it is a Declaration rather than a convention. States are legally bound by the terms of a convention once they ratify it, that is, it is a legally binding treaty. A declaration, on the other hand, is not legally binding, but does carry moral weight. For example, the UN Universal Declaration of Human Rights is not a binding treaty but over time has come to have enormous force and influence in international human rights law.
Furthermore, a Declaration is often the precursor to a binding treaty – the UDHR led to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which are collectively known as the international bill of rights. So the new ASEAN Human Rights Declaration should perhaps be viewed as a first step on the path towards greater protection of human rights in the region, rather than an end in itself.
Before analysing the contents of the Declaration, it is worthwhile considering the drafting process. The modern trend when it comes to drafting human rights instruments is to consult widely with key stakeholders, including civil society. It is common nowadays for draft documents to be released and stakeholders invited to provide feedback. No such process took place with the ASEAN Human Rights Declaration. Indeed, the terms of reference were not even relased, let alone any actual drafts.
In relation to this “closed door” drafting process, the UN High Commissioner for Human Rights, Navi Pillay noted that “This is not the hallmark of the democratic global governance to which ASEAN aspires, and it will only serve to undermine the respect and ownership that such an important declaration deserves”.
Human Rights Watch was less diplomatic in its assessment of the drafting process, describing it as a “full-blown train wreck“. Given this provenance, it is perhaps not surprising that the ASEAN Human Rights Declaration does not compare favourably to the African, American and European human rights instruments.
One of the concerns about this Declaration is the use of “weasel” words that will allow governments to escape from their human rights obligations. For example, Principle 6 talks about the enjoyment of human rights having to be “balanced with the performance of corresponding duties” to other individuals, the community and society.
This implies that the enjoyment of human rights is conditional upon individuals being “good” citizens. This is inconsistent with international human rights norms which mandate that upholding an individual’s human rights is not dependent upon them being responsible members of society; even prisoners and terrorists have human rights.
Principle 7 provides that “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.” Furthermore, human rights can be limited on a variety of grounds including “national security”, “public order” and “public morality”.
Such language could be construed as a rejection of universal human rights and a return to the days when the mantra of “Asian values” was often touted as justification for non-compliance with international human rights norms.
A further concern is found in Principle 2 which sets out the right of all persons to be free from discrimination on a number of grounds including “race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status."
A noticeable absence from this list of protected attributes is sexual orientation and gender identity. Although the concluding phrase “or other status” could potentially capture these grounds (and the UN has determined that ‘other status’ does include sexual orientation and gender identity) the decision to omit these two terms from the lengthy list of prohibited grounds of discrimination is troubling.
The UN High Commissioner for Human Rights summed up the effect of the adoption of this Human Rights Declaration when she said:
Other regions have shown how regional human rights systems can evolve and improve over time, and I am confident this will be the same for ASEAN … Looking ahead, it is essential that ASEAN ensures that any language inconsistent with international human rights standards does not become a part of any binding regional human rights convention.
Ultimately, the only conclusion to be reached is that the ASEAN Human Rights Declaration is a flawed instrument. However, there is a Chinese proverb that says: “Better a diamond with a flaw than a pebble without one”.
The new ASEAN Human Rights Declaration is a diamond with significant flaws, but we are better off having this flawed diamond than nothing at all, because it is the start of a a dialogue with ASEAN members about human rights which may ultimately lead to the emergence of a gem, in the form of a regional human rights convention that contains none of the deficiencies in this Declaration.
The Human Rights Declaration is best viewed as the start of the journey for ASEAN towards greater promotion and protection of human rights in its region. It would have been nice to start this journey from a more evolved position, but it is nevertheless a start.
It will now be up to the international community to work with the ASEAN member states to advance the recognition of, and compliance with, universal human rights standards.