Keywords

1 Introduction

This chapter attempts to examine the extent of importance that ASEAN gives to human rights issues. In particular, it examines the extent to which the ASEAN human rights body named ASEAN Intergovernmental Commission on Human Rights Commission (hereafter AICHR) can sustain human rights promotion and protection. As many people predicted, the functions of the body are slow moving. This is particularly because of the nature of ASEAN cooperation efforts itself, which places strong emphasis on the principles of non-intervention and sovereignty of its members. These principles have prevented them from enacting policies and making statements to protect the human rights of members that may be seen as interfering in the domestic problems of another ASEAN member.

However, this does not mean that ASEAN does not take human rights seriously on the regional level. As will be examined in this chapter, ASEAN members have attempted earnestly to include human rights in their agenda and finally were able to set up AICHR on 23 October 2009 through a long and difficult process. Due to a lack of consensus among different views and interests, AICHR could not be expected to function effectively within a short time. It seems that more time is needed for ASEAN members to enable this newly formed body to function to protect human rights. The role of non-state actors in ASEAN including non-governmental organizations (NGOs) is important in this process.

This chapter is divided into three main parts. First, it analyses the phases of human rights inclusion in the ASEAN charter. Second, it elaborates on the formation of AICHR and the expectations and criticisms of the body. Third, it explains the likely sustainability of AICHR.

2 The Phases of Human Rights Inclusion in ASEAN

The adoption of human rights articles into the ASEAN Charter in 2008 has been welcomed by both state and non-state actors in ASEAN. The so-called founding members of this organization, particularly Indonesia, Malaysia, Thailand, Singapore, Brunei, and the Philippines, have developed a shared understanding that human rights need to be discussed at the regional level, and some of them also have established human rights commissions in their home countries. When the new members, Vietnam, Laos, Cambodia, and Myanmar, joined ASEAN, they needed to accept this condition and conform to the existing understanding of human rights norms.

The development of human rights inclusion in the ASEAN Charter is a unique phenomenon. The adoption involved a process whereby the universal principles of human rights were adopted, interpreted, adjusted to local needs, and, finally, included in ASEAN human rights discourse. How the changing perception of human rights happens and what kind of role the international community has in this changing process are the topics that will be discussed in this section. The evolution of human rights understanding in ASEAN is a tri-phasic process. The first phase can be viewed as a rejection period followed by the second phase that is the compromise and localization of human rights principles. The third phase can be seen as the process where ASEAN develops its discourse on human rights.

To explain these phases, I will use a constructivist approach of how norms are spread, adopted, and adjusted. According to Acharya, transnational norms such as regionalism, democracy, and human rights are rarely completely rejected by recipient countries. There are always localization processes present, which are defined as ‘a reinterpretation and re-representation of the outside norm, including framing and grafting, but may extend into more complex processes of reconstitution to make an outside norm congruent with a pre-existing local normative order. It is also a process in which the role of local actors is more crucial than that of outside actors’ (Acharya 2004, 244).

Below is an elaboration on the three phases.

2.1 The First Phase

During the first phase, human rights had not become a central issue within ASEAN. From 1967 to 1989, ASEAN was in the process of consolidating the organization and finding a platform of cooperation. Taking lessons from previous conflicts, the organization then strengthened their commitment to the principles of sovereignty and non-intervention as the primary norms to be supported in their cooperative efforts. The member states would not tolerate any kind of intervention to the domestic problems of other members.

In this situation, ASEAN was able to comfortably serve the need of its member states. The government and societies of members were prevented from commenting or acting in ways that would be considered as intervening in problems of other members, including human rights problems. However, the absence of discussion did not mean that there were no human rights problems between ASEAN members. The authoritarian states, namely, Indonesia and the Philippines, were controlled by military-dominated regimes that paid little heed to political rights at that time. There were also similar human rights problems to a lesser degree in semi-democratic countries such as Malaysia, Singapore, and Thailand at this time.

Given the fact that many channels at the national and regional levels, including the media during this phase, were dominated by the government in authoritarian states such as Indonesia and the Philippines, in semi-democratic states such as Malaysia and Singapore, the discussion on human rights issues took place underground using Western media, newspapers, and books. Human rights activists and organizations conducted their activities silently and maintained the hope of human rights being realized by facilitating cooperation with international NGOs and Western states. These activists were often arrested with the justification being that they threatened the stability of the state.

Most ASEAN states emphasized economic development as their main priority to the detriment of human and political rights. The Singaporean government, for example, used the survival of its small state as the main justification for their harsh policy against opposition and human rights activists. The Indonesian New Order government under Suharto used development and political stability as the jargon by which to oppress opposition factions who demanded the implementation of human rights.

Internationally, the situation was also not ideal for human rights activists because Western democratic states did not really pay attention to human rights issues during this time. Their concern rested more on maintaining their own political and ideological interests, which mainly involved preventing the spread of communist influences in Southeast Asia.

2.2 The Second Phase

In the second phase, ASEAN started to discuss human rights issues because of Western pressures to do so. In this period, lasting roughly from 1989 to 1998, Western countries which were not distracted by Cold War issues paid attention to human rights and democracy. However, instead of bowing to Western pressures, ASEAN members gave strong reactions. These countries became upset when the West switched from supporting their authoritarian and semi-democratic regimes during the Cold War to making them pariah states because of their human rights records.

In this post-Cold War context, the implementation of human rights was seen by almost all ASEAN states as an enforcement of Western values and norms over their own cultures and traditions. The ASEAN states perceived that Western states often linked human rights with their economic and political interests. Being understood this way, the countries in the region reacted by emphasizing the importance of preserving local needs, norms, and values. According to some government elites in Singapore, Malaysia, and Indonesia (which was still under authoritarian Suharto’s regime), these values placed more emphasis on the community than on the individual.

The perspective taken by other ASEAN members, such as Singapore and Malaysia, was usually called ‘Asian values’ and in Indonesia’s case, ‘Pancasila values’. In both the ‘Asian values’ idea and that of the Pancasila perspective, the individual has a duty to be responsible to the society or community and the family. According to Hoang (2009), individuals have to give their trust to authority and to cooperate rather than enable conflict in achieving their goals. In the ‘Asian values’ context, state security, economic development, and political stability were more important than civil and political freedom. By having state stability, they could build the economy, maintain social cohesion, and prevent the unwanted excesses of liberal democracy such as single parenthood, crime, narcotics, and other social ills. They also informed the West that it was imperative to understand the multitude of Asian cultural differences compared to the West (Avonius and Kingsbury 2008) before it attempted to promote human rights. ‘Pancasila values’ also adopted similar characteristics to ‘Asian values’, the only differences being that they placed more emphasis on Indonesia’s specific historical and cultural context.

However, although these states rejected Western pressures, they did not completely reject human rights principles. The strong reactions and counters were mainly motivated by Western approaches (which often dictated human rights) at the end of the 1980s. According to the proponents of ‘Asian values’, what became the priority during this time were not civil and political rights as promoted by the West but economic development and political stability. Some ASEAN states such as Indonesia, Burma, the Philippines, and Thailand had signed the Universal Declaration of Human Rights after they gained their independence.

Following Acharya’s theory about the spread of universal values, ASEAN can now be said to be entering a phase of the localization process (Acharya 2004) of human rights principles. The adjustment to the principle to the local context and needs was best described in the ASEAN ministerial statements. In a meeting in Singapore between 23 and 24 July 1993, for example, ASEAN states declared their position on human rights. This meeting reaffirmed ASEAN’s commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration of 25 June 1993. The ASEAN Ministerial Meeting (AMM) was attended by six foreign ministers from Singapore, Indonesia, Brunei Darussalam, Malaysia, Thailand, and the Philippines who concluded that human rights was a matter of application and priority. The ministers said that the application should be balanced and without ambiguity. They also stressed that human rights were interrelated and indivisible, comprising civil, political, economic, social, and cultural rights (Chalermpalanupap 2008).

Another indication that ASEAN did not fully reject human rights principles could also be found in its statements calling on members to reject gross violations of human rights and to initiate the formation of a human rights body. In the aforementioned 1993 meeting in Singapore, the foreign ministers agreed that ASEAN should coordinate a common approach to human rights and actively participate and contribute to their application, promotion, and protection. It is also clear that the ASEAN members paid serious attention to the implementation of human rights mechanisms. One interesting statement related to this AMM was the plan to set up a regional human rights commission.

From this statement, proposals for setting up a human rights mechanism began, and this was reflected in the formation of Human Rights Commissions (HRCs) in some ASEAN states such as in Indonesia, Thailand, the Philippines, and Malaysia during the 1990s. This also showed that the respective regimes did not reject human rights principles, and they even accommodated some of the demands from Western countries. The national HRCs concern on human rights violation but at the same time tried to negotiate with their government of how to handle certain human rights issues, but primarily focusing on urgent economic, cultural, and social problems.

To follow up the idea of setting up a human rights body in this period, some steps had been taken within ASEAN. A Working Group (WG) was set up by the Law Association for Asia and the Pacific Region (LAWASIA) on July 1995 in Manila, its purpose being to outline a human rights mechanism for the entire body. ASEAN members also supported the Hanoi Plan of Action (1998), which both contained an appeal to ASEAN states to respect human rights and recommended necessary steps to promote human rights in their regions as outlined in the United Nations Charter, the Vienna Declaration, and the Program of Action. ASEAN countries also signed the Convention on the Rights of the Child (CRC), and with the exception of Brunei, they also agreed to sign the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) pact.

2.3 The Third Phase

The third phase began after the 1998 Asian financial crisis. In this phase, the ‘Asian values’ discourse was no longer used by ASEAN officials to support practices of human rights and democracy (Barr 2002, 3–10), the view being that they had been discredited because of Asia’s financial crisis. The crisis showed that the ‘Asian values’ discourse was too exaggerated to explain Asia’s economic success, and in fact, the values were not able to support Asia’s emerging industrializing states in facing the crisis. In addition to this, the ‘Asian values’ discourse was also criticized as being part of ASEAN leaders’ efforts to perpetuate the myth that they had their own particular cultural and political system, which made it possible to reject Western pressures on human rights (Jacobsen and Bruun 2000, 7–9).

During this phase, ASEAN pioneered the establishment of the ASEAN Human Rights Body in its meetings. The formation of the body was difficult because of differences in political systems, made more so with the inclusion of four new countries into ASEAN: Myanmar, Cambodia, Laos, and Vietnam (MCLV). At the time, these new members had subpar records on human rights issues and needed to gain the confidence to discuss them. After long discussions and debates, veteran ASEAN members were able to convince the MCLV states that the body did not aim at placing blame on other states. Unlike the MCLV states, ASEAN founding countries had experience debating human rights with the West and were ready to move forwards. However, MCLV states re-emphasized the specificity of state-centric approaches to human rights.

However, in general, the founding countries of ASEAN were not yet ready for a formation of a strong regional human rights body with the function of monitoring and protecting human rights. All ASEAN member countries have encountered human rights violations, including Indonesia. Indonesia has not been able to uncover the death of human rights activist, Munir, and some student activists during the protest against Suharto in 1998. Indonesia has also not settled human rights problems occurring in its Papua Province (locating in the the western half of the New Guinea island near the border with Papua New Guinea). Malaysia has had problems regarding oppression of opposition factions, particularly with the improper arrest and treatment of the former Vice Prime Minister Anwar Ibrahim. Singapore and Malaysia still have strong acts that restrict individual freedom. The Philippines faced the problem of Muslim Moro minority rights in Mindanao, and Thailand also had problems in the handling of demands from Pattani people in Southern Thailand. Meanwhile, Myanmar faced more serious human rights problems with the expulsion and killing of Rohingya people.

Singapore has made it clear that the ASEAN treaty should consider whether the clauses agreed upon were in accordance with its national laws (Durbach et al. 2009, 214). Former Minister Raymond Lim said that all ASEAN members needed to get consensus on what the body would look like, and he agreed that the body needed to function as a ‘consultative and not prescriptive’ body (quoted in Durbach et al. 2009, 214).

Regarding the establishment of the ASEAN human rights body, there were members who were more active than others. According to Haris Azhar, head of Kontras, an Indonesia-based NGO, Indonesia was one of the most active promoters of AICHR.Footnote 1 Former Indonesian foreign minister Hassan Wirajuda also supported the strengthening of the AICHR, but the other nine ASEAN members were reluctant. According to Azhar, it seems that Indonesia made a vain attempt to promote AICHR at ASEAN because it would be against the nine other members. As a new democracy, Indonesia’s leaders think that human rights should also be part of the new ASEAN identity.Footnote 2

3 The Formation of AICHR: Expectation and Criticism

ASEAN perceptions on human rights developed from a strong reaction to the Western approach, which often claims the universality of human rights principles over the localization of principles. Localization means a selection process of human rights aspects that can be implemented and modified to meet local and community needs. ASEAN leaders in particular prefer to uplift the importance of social, cultural, and economic rights while making some preservation on the implementation of political rights. Through these phases, ASEAN understood the limits of what it can do and cannot do so that every member can restraint their position for the sake of unity.

When the ASEAN human rights body was finally formulated, its power was limited. Its main concerns are on issues that relate to people’s economic, social, and cultural rights. So far, two areas that have become the focus of discussion relate to the protection of women and children rights and of migrant workers. However, some NGOs and human rights activists are also promoting the importance of political rights, arguing that the above rights cannot be achieved without guaranteed political and civil rights.

So far, only four ASEAN member states, namely Indonesia, Malaysia, the Philippines and Thailand have a national human rights commission. Not all of the ASEAN member states are party to the International Bill of Rights (comprised of the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights 1948 (UDHR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) 1966) or to all of the nine core international human rights treaties as stipulated by the Office of the High Commissioner for Human Rights (OHCHR). This will make it difficult for ASEAN, at present, to achieve a consensus on the formation of a convention.

From the above discussion on ASEAN’s perspective on human rights, it is still difficult to expect its human rights body to fulfil its function. Different human rights issues and political situations within ASEAN states prevent the formation of a strong body that can investigate any violation of human rights principles in one member state. It is no wonder that the AICHR is composed only of a government-appointed commissioner. The AICHR’s official tasks and mandates seem to be restricted; the AICHR Terms of Reference (ToR) mentions that the new commission operates in the capacity of a consultative body, which indicates that it does not truly have independent power (Munro 2011, 1189). The mandate and functions given are only for promotion of human rights (Hermawan 2010). There are no clear items to impose sanctions for non-compliance to human rights in the ToR (Munro 2011, 1193).

After about 8 years of formation, AICHR activities concentrate only on promoting and making campaigns to support human rights in meetings and seminars. It is silent on human rights violations in many cases, such as those against the Rohingya in Myanmar and the Pattani in Thailand. It also did not make any statements related to individual and press freedom in Malaysia, Singapore, and Indochina. AICHR also does not have power and is not independent of governments that make it possible to investigate human rights abuses. It has a function to get information or reports of human rights issues from member states, but AICHR has not used this authority.

However, the formation of AICHR can be seen as progress. ASEAN members have started to think of human rights at the regional level, in addition to the state mechanism for protecting human rights available in each ASEAN state. AICHR commissioners are also busy with running programmes to promote human rights in their home states, attempting to mainstream issues such as the danger of human trafficking. Some individuals have also sent reports about abuses of human rights they experienced to AICHR, although only one or two cases have since been discussed or followed up on.

4 Sustainability of AICHR

Given the above limitations faced by AICHR, there is a question of its sustainability. ASEAN is often able to form good consensus and decisions, but the shortcoming is always in its implementation.

More sceptical views mention that AICHR was formed as a tactical strategy to show that ASEAN, like many other regional organizations which have already set up such a regional human rights body, is very serious about dealing with human rights issues. It may also be seen as the strategy to counter criticisms which argue that ASEAN has not functioned well after the end of the Cold War. Therefore, the formation is a move to improve ASEAN’s image, which is seen as still disregarding clashing issues that cross the sovereignty of other members. The charter itself is seen as a minor point in ASEAN development since, as with many other ASEAN agreements, it has been very difficult to implement.

On the other hand, there are optimistic views circulating among civil society groups, non-governmental organizations (NGOs), and officials about the formation of AICHR. In particular, NGOs welcome this step as progress in ASEAN cooperation efforts, especially since for a long time, this organization mainly concerned itself with government-to-government cooperation and represented elite interests. The ASEAN Charter, therefore, was seen as a real step in line with NGOs and people’s interests. These NGOs for the last 10 years have organized meetings, protests, and avocations demanding a more people-oriented ASEAN.

Pertinent human rights problems often related also to cross-border movement, meaning things such as human trafficking, refugees, migrant workers, and asylum seekers (Hara 2007). The migrant workers often experienced abuse of their labour rights. Some other issues listed by Amnesty International were also relevant to ASEAN, such as violence against women, limitation to freedom of speech and to form association, and extrajudicial executions. These cross-border human rights issues necessitate a formation of a human rights body because there are cases that cannot be handled by one state only.

The above views towards the sustainability of AICHR had some reasonable justifications. Sceptical views that saw the inclusion of human rights and formation of AICHR as a tactical decision, for example, may yet prove valid, since ASEAN was under strong pressure domestically and internationally in the 1990s, particularly on the military regime in Myanmar, and needed a strategy to survive as a workable organization. ASEAN leaders needed to show that the organization was still useful and had relevant functions in a changing political environment. However, if the explanation gave emphasis mainly on this explanation, we missed some points since the discussions and discourses on human rights in ASEAN had started for a long time before the case of Myanmar got international attention.

Apart from the above contrasting views, one aspect that may make AICHR sustainable is non-state actors’ participation, particularly regarding the role of NGOs. NGOs have been very critical on ASEAN’s weak commitments to human rights issues. Nowadays, NGOs have set up many meetings to demand that ASEAN leaders pay attention to issues such as poverty and human rights, particularly since the 2000s.

One important meeting that gathered the above civil society groups was the ASEAN Civil Society Conference, held from 27 to 28 October 2007. This conference was organized by the Singapore Institute of International Affairs, and it aimed at gaining views from civil society regarding many issues including human rights. The participants were drawn from regional non-governmental organizations (NGOs), think-tanks, and civil society organizations (CSOs) who had participated in larger meetings and networks among their counterparts in preparation for the ASEAN Summit. These networks include the ASEAN People’s Assembly, the ASEAN-Institutes of Strategic and International Studies, the Working Group for an ASEAN Human Rights Mechanism, the Solidarity for Asian Peoples’ Advocacy, and the Southeast Asian Civil Society Environment Alliance.

These organizations particularly criticized ASEAN because of its elitist approach. According to them, ASEAN mainly serves state and regime interests rather than people’s interests. People on the ground questioned the functions of the organization for citizens of ASEAN states. The critiques came out particularly after the end of the Cold War, which birthed the view that security is not mainly about state security but human security. Some nontraditional security agendas that were hidden during the Cold War became big security issues. According to the critics, it is time for ASEAN to solve these problems.

In such a condition, AICHR should also serve the people with a stronger commitment. ASEAN should change the focus from government to people-oriented organizations. This development is supported by countries just experiencing democracy such as the Philippines, Thailand, and Indonesia. Former Indonesia President, Yudhoyono, welcomed this people-oriented approach, saying that ASEAN should start to think as an organization of nations, instead of the just organization of governments. He said that now, people need to understand the policies and programmes made by ASEAN leaders on their behalf. He called for mass media and civil society to participate in a kind of bottom-up decision-making process and to monitor their implementation. This change reflects a drive towards a people-oriented ASEAN (Yudhoyono 2005).

5 Conclusion: The Way Forward

ASEAN has set up a human rights commission named ASEAN Intergovernmental Commission on Human Rights (AICHR). It does not have a strong mandate, for it is a consultative rather than prescriptive body that takes into account the sovereignty of all member states. ASEAN also has no tradition of blame yet still openly criticizes other members for any ethical issues they raise. In this situation, people cannot expect much from them, since ASEAN’s decisions are still in the hands of the elites who dominate policy-making.

However, hope exists: A human rights body starts from merely the promotion of human rights, but later it may have a broader power of protection that can accommodate individual claims on human rights abuses. As with national human rights commissions in some ASEAN states, AICHR may be given authority to conduct investigations at a later date as part of its evolutionary process.

In the current situation, one of the primary tasks of AICHR is to ‘improve public awareness of human rights through research’, which can be conducted to examine and investigate both large-scale and individual abuses. This is part of the function of ‘obtaining information from member states in the field of human rights protection’, and ‘conducting studies on thematic issues of human rights’ as outlined in its ToR (Munro 2011, 1190). The said research can cover social issues such as issues of women and children, migration, human trafficking, and others.

AICHR may go beyond its modest official mandate and tasks, as the former Thai Prime Minister Abhisit Vejjajiva, for example, stated. According to him, ‘the new body will be welcome to Thailand to investigate any human rights abuse case’ (Zulfakar and Chun 2009). This is certainly a strong commitment that should be proved in practice; however, it has not yet been implemented. Similarly, AICHR ToR stated that there would be a dialogue between the human rights commission and civil society. In this dialogue, civil society groups can bring cases related to victims of human rights abuses.

Despite its limited power, there are ways to make the body sustainable in the future. The roles of NGOs and academics are very important to continue their critiques of ASEAN leaders and to give support to the exercise of human rights. They can use media and findings to create public awareness of human rights violation in certain ASEAN states. Concerns of the media, academics, and NGOs on Rohingya issues, for example, have prompted ASEAN states to take certain actions to protect the human rights of these people who are not recognized by the Myanmar government as complete citizens.