Human rights norms and the evolution of ASEAN: moving without moving in a changing regional environment.

• Author: Narine, Shaun
• Position: Report

During the Cold War era, the traditional Westphalian understanding of sovereignty protected the right of governments to deal with human rights as they saw fit within the borders of their own state. Despite the existence of the Universal Declaration of Human Rights and the International Bill of Human Rights, the international community made no serious effort to force signatory states to respect the obligations associated with those documents. A lack of international consensus on what those obligations were and how to prioritize different sets of rights compounded the problem. (1)

With the end of the Cold War, Western states--particularly the United States--aggressively promoted the spread of liberal economic values and practices and argued that these economic values would facilitate the spread of associated political and social ideals. European states also began linking human rights considerations to economic and trade agreements, at least rhetorically. Some Asian governments pushed back against this Western pressure, giving rise to the "Asian values debate" which centred on the claim of some Asian leaders that Asian people preferred being governed by soft authoritarian, collectivist-oriented states rather than the individualist, liberal democratic structures advocated by the West. This governmental effort at staking out a distinctive Asian position towards human rights faltered in the wake of the Asian Economic Crisis of 1997-99. (2)

The development of the Association of Southeast Asian Nations (ASEAN) provides an interesting example of how the debate between state sovereignty versus human rights (and democracy) has evolved in the Asia-Pacific region. The principle of Westphalian state sovereignty is the cornerstone of ASEAN's institutional structure. While other regional organizations have provisions to intervene in the affairs of member states under extraordinary conditions, ASEAN still refuses to take this step. (3) Nonetheless, in the first decade of the twenty-first century, there are indications that ASEAN is shifting its approach towards state sovereignty. The ASEAN Charter speaks of the need for member states to respect human rights and protect and promote democracy. In October 2009, ASEAN launched the ASEAN Intergovernmental Commission on Human Rights (AICHR) to monitor the human rights conduct of its member states. The AICHR is currently working on developing an ASEAN Declaration on Human Rights, in what human rights NGOs have criticized as a highly secretive process. (4) The AICHR developed an ASEAN Declaration on Human Rights, in what NGOs criticized as a highly secretive process. The AICHR presented the Declaration to ASEAN in November 2012. The Declaration has been criticized by human rights groups for being too deferential to state power. (5) In 2010, ASEAN created the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC). These developments were accompanied by a number of other measures designed to enhance human rights in Southeast Asia. (6)

This paper argues that ASEAN's recent shift towards creating a more robust regional human rights regime is less substantive than it appears. The central argument is that ASEAN's moves towards promoting human rights are an important part of a larger regional strategy to rejuvenate and re-legitimize ASEAN. The growth of democracy and the spread of international norms of human rights have had some effect in the region. However, these influences are relatively minor and outweighed by the domestic political and economic requirements of the member states. The paper is divided into three parts. Part one examines the history of the regional human rights debate leading to the emergence of the AICHR. The paper argues that ASEAN's fairly abrupt shift towards supporting the AICHR reflected the member states' political interest in revitalizing ASEAN. The second part of the paper considers the possibilities that ASEAN's shift was due to pressure from the West or a desire on the part of ASEAN states to emulate the presumed human rights orientation of the Western powers. The paper makes the case that most ASEAN members, old and new, remain strongly invested in the institution's overriding focus on state sovereignty, largely due to their awareness of their own domestic weaknesses. Finally, the paper argues that the external international human rights environment is shifting in ways that undermine the human rights agenda. Human rights pressures from Western states have been alleviated by the failure of the West to respect its own human rights values. The rise of China is also changing the normative playing field. Taken together, these arguments make the case that ASEAN's commitment to a human rights regime is relatively weak and may grow weaker. The AICHR may be part of an incremental shift in ASEAN's understanding of human rights, but ASEAN's human rights policies will, ultimately, be shaped by the domestic economic and political realities of its member states.

The Development of an ASEAN Human Rights Mechanism: The AICHR and Its Limitations

In the 1980s, the United Nations General Assembly and the UN Human Rights Commission passed resolutions calling on Asia to establish a regional human rights mechanism. In 1993, the United Nations World Conference on Human Rights was held in Vienna, Austria. The conference was designed to reaffirm the international community's commitment to the 1948 Universal Declaration of Human Rights (UDHR). Prior to the Vienna meeting, ASEAN's heads of state met in Bangkok to draw up a number of reservations on the idea of universal human rights norms and standards. The group endorsed the 1948 UDHR, but many members were not willing to ratify various international human rights conventions and treaties. Instead, ASEAN adopted The Asia Pacific Declaration on Human Rights (also known as The Bangkok Governmental Human Rights Declaration). (7) The ASEAN governments disliked what they saw as a Western over-emphasis on civil and political rights at the expense of developmental rights and basic needs and offered a "Universal Declaration of Human Responsibilities" as an alternative to the UDHR.

In the mid-1990s, regional economic success made ASEAN's leaders more assertive in their interpretation of human rights. Some Asian leaders, notably Lee Kuan Yew of Singapore and Mahathir Mohamad of Malaysia, promoted the idea of "Asian values" as an explanation and justification for distinctive Asian cultural and political systems. Supporters of "Asian values" sometimes used the argument to justify the control of authoritarian elites. It also reflected the need of these elites to protect an Asian developmental model that relied on the restriction of labour rights. (8) Asian leaders were also concerned that, with the end of the Cold War, Western powers were pursuing a neo-imperialist agenda masked by the rhetoric of human rights. Asian leaders saw Asian economic power as providing a shield behind which to advance their own political, cultural and economic perspectives. The ASEAN countries believed that human rights would be best protected by regional, rather than global, arrangements. (9)

The Vienna conference issued the consensus-based Declaration and Programme of Action that emphasized "the need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist". (10) ASEAN's foreign ministers, meeting at the 26th ASEAN Ministerial Meeting in Singapore in July 1993, declared their support for the Vienna declaration and indicated that ASEAN should consider establishing a "regional mechanism on human rights". However, the Ministers also stated that human rights must be "protected and promoted with due regard for specific cultural, social, economic and political circumstances". They went on to say 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 noninterference in the internal affairs of states". Finally, they expressed the position "that freedom, progress and national stability are promoted by a balance between the rights of the individual and those of the community". (11)

The ASEAN Inter-Parliamentary Organization (AIPO) responded to ASEAN's statement by adopting The AIPO Declaration on Human Rights, which endorsed the establishment of a regional human rights body. Momentum for this idea built across Southeast Asia, spearheaded by non-governmental organizations. In July 1995, the Human Rights Committee of LAWASIA, a body consisting of lawyers and judges from across the region, created "The Regional Working Group for an ASEAN Human Rights Mechanism" (Working Group). (12) The Working Group was an informal coalition of Southeast Asian individuals and groups who were working for government, parliaments, academic institutions and NGOs. They were bound together by their common concern for protecting and promoting human rights. In contrast to ASEAN governments, the Working Group emphasized that any regional agreement about a human rights mechanism should operate in accordance with the principle of the universality of human rights and insisted that regional laws be consistent with international human rights law. (13) Starting in 1996, the WG began meeting annually with ASEAN's foreign ministers and, from 1998, its contributions were regularly mentioned in the foreign ministers' annual communique. (14) In July 2000, the Working Group submitted a Draft Agreement for the Establishment of the ASEAN Human Rights Commission to ASEAN officials, part of an effort to begin a process of consultation. The report recommended that ASEAN establish an independent Human Rights Commission that would prepare reports on human rights, conduct its own investigations and communicate with states.

ASEAN thanked the...