The Southeastern Asian System

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Director

Brian Scarnecchia, M.Div., J.D. is an Associate Professor of Law at Ave Maria School of Law in Naples, Florida where he has taught Property law, Origin of the United States Constitution, Criminal law and Bioethics. He is the author of Bioethics, Law and Human Life Issues: A Catholic Perspective on Marriage, Family, Contraception, Abortion, Reproductive Technology, and Death and Dying (Lanham, MD, Scarecrow Press, 2010) and co-author of The Millennium Development Goals in Light of Catholic Social Teaching (New York, C-Fam, 2009). Brian has also worked as the Director of the Legal Studies program and of the Human Life Studies program at Franciscan University of Steubenville in Steubenville and as an Assistant County Prosecutor for Jefferson County, Ohio. He currently serves on the Board of Directors for the Society of Catholic Social Scientists (SCSS) and is their main NGO representative to the United Nations. He is also the founding president of International Solidarity and Human Rights Institute (ISHRI), a non-governmental organization (NGO) in consultative status with the United Nations. Brian has also served as an expert on life and family issues for the Catholic Inspired NGO Forum (CINGO), which works in close association with the Pontifical Council for the Family and Secretariat of the Holy See.

System Overview

ASEAN came into being in 1967 at the height of the Vietnam War as a political coalition of five Southeast Asian nations – the Philippines, Malaysia, Singapore, Indonesia, and Thailand – to resist Communist aggression.[1] The Secretariat of ASEAN is located in Jakarta, Indonesia. Over the years, five new members were added – Brunei (1984), Vietnam (1995), Laos (1997), Burma (1997) and Cambodia (1999). Timor-Leste made application to become a member of ASEAN in March of 2011.[2] Following the close of hostilities in Vietnam, ASEAN expanded its scope to include economic development, hoping to create a single market and economic community by 2015.[3] However, until recently, it was not charged specifically to promote and protect human rights.[4]

At the time of its formation in 1967 until 2007, ASEAN’s international personality remained “relative” or “subjective.” That is, it was ever dependent upon the express recognition of its member states.[5] However, its legal personality changed, once the ASEAN heads of government signed the Charter of the Association of Southeast Asian Nations (hereinafter, “the Charter”) at the 13th ASEAN Summit in Singapore. Indeed, on November 20, 2007, ASEAN evolved into an “‘intergovernmental organization’,… enjoying functional immunities and privileges.”[6]

The Charter became effective on December 15, 2008[7] and it aims to accomplish three goals: to give ASEAN international legal personality and to streamline its decision making; to strengthen its institutions, especially the Secretariat; and to establish mechanisms to monitor compliance of its agreements and settle disputes between its members.[8] The Charter contains thirteen chapters, fifty-five articles and four annexes. ASEAN’s declaration of international legal personality is found in chapter three,[9] and the ASEAN Human Rights Body is mentioned in chapter four.[10]

The Terms of Reference (TOR) for the ASEAN Human Rights Body (AHRB) were formally adopted on July 20, 2009, by all ten ASEAN Foreign Ministers.[11] Dr Surin Pitsuwan, Secretary-General of ASEAN, pointed out that the TOR embodies the spirit and the letter of the Charter: “Democracy and human rights are two basic principles enshrined in the Charter and we are now taking steps towards the fulfillment of these principles for our peoples.”[12]

On October 23, 2009, ASEAN leaders inaugurated the ASEAN Intergovernmental Commission on Human Rights (AICHR)[13] as the overreaching human rights institution for the promotion and protection of human rights in ASEAN. The Prime Minister of Thailand, H.E. Abhist, pointed out the development of this Commission: “AICHR is not an end in itself but an evolutionary process towards strengthening the human rights architecture within the region”[14] of Asia and the Pacific. One newly formed human rights body that will operate under AICHR is the ASEAN Commission on the Rights of Women and Children (ACWC). United Nations (UN) representatives from UICEF and UNIFEM were present at the inauguration of ACWC. Each State member appointed one representative on the ACWC.[15] It was established to “promote the implementation of international instruments, ASEAN instruments and other instruments related to the rights of women and children” and to develop policies consistent therewith.[16]

Finally, on November 18, 2012 ASEAN adopted a Human Rights Declaration at its summit in Phom Penh.[17] However, this long awaited achievement was not greeted with enthusiasm by civil society because it compromised the principle of the indivisibility and universality of all human rights.[18] Article 8 of the Declaration, in particular, contains the following language which raised issues:

The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.[19]

Criticisms have been leveled against the ASEAN’s Human Rights Declaration for violating the universality and indivisibility of human rights by allowing its member states to discriminate, decide and enforce only those human rights which comport with their nation’s culture, morality and tradition. Such challenges have come from diverse sources. For example, the United Nations High Commissioner for Human Rights, Navi Pillay, expressed concern that ASEAN’s new Human Rights declaration fell below international standards: “The international human rights mechanisms will continue to hold ASEAN member states to their international obligations and encourage ASEAN to strengthen further its regional human rights framework.”[20] The International Gay & Lesbian Human Rights Commission argued that the ASEAN Human Rights Declaration “makes a mockery of the international human rights values and principles that all nations and citizens abide by and are held accountable to” by excluding lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) peoples throughout the region from its protection.[21] The World Organization Against Torture (OMCT) also denounced ASEAN’s Human Rights Declaration for the loopholes it provides state members to pick and choose which human rights it will honor and protect and which it will not:

OMCT further deplores the broad language on the limitation of rights in the Declaration, such as ‘national security’, ‘public order’ and ‘public morality’. This sets a dangerous signal to the countries in the region with a track record of abusive and expansive invocations of state security and public order or moral to curtail universally accepted rights. These laws created frameworks of arbitrary detention and prone to torture and ill treatment.”[22]

The universality and indivisibility of human rights is an issue which affects not only ASEAN but every region of the world. There is an international conflict over which human rights uphold human dignity and which do not. Human rights advocate, Marguerite Peeters, notes:

We see a danger, however, in a process we may qualify as top-down globalism which, under the guise of bottom-up participation, equal rights and non-discrimination, uses the channels of global governance to try and engineer global assent to special interests by way of a manipulative use of language in the consensus-building process.”[23]

A number of states in attendance at the 19th Session of the Human Rights Council on March 7, 2012 objected to the inclusion of the terms “sexual orientation” and “gender identity” as threatening the universality of human rights. They argued that “national and religious particularities had to be raised in the context of any discussion of human rights since homosexual acts were against the teachings of world religions, as well as cultural and traditional values of many communities.”[24] Archbishop Tomasi, Permanent Observer of the Holy See to the United Nations in Geneva, noted that the undue focus on notion such as “sexual orientation” and “gender identity” particularizes human rights to such a degree as to “easily put at risk the universality of these rights” raise serious concerns.[25] Under-Secretary of State for the Holy See, Archbishop Mamberti in his address to the High Level Segment of the 22rd Session of the Human Rights Council warned that “the introduction of ambiguous expression and ideological positions appear to ignore the solid foundations of human rights, to weaken the successes already achieved , and to undermine the universality of human rights.”[26] He added, these, so called, “ ‘new rights’” put at risk the universality and indivisibility of human rights” enshrined in the Universal Declaration on Human Rights.”[27] Rather than seeking to impose new rights that do not enjoy universal recognition, he suggested, that the Human Rights council ought to strive to strengthen those already agreed upon.[28] Archbishop Mamberti underlined that the key to international peace must be found in the “promotion of the universality and indivisibility of human rights.” Ironically, in this context, the deference accorded national and religious and cultural values in ASEAN’s Human Rights Declaration may serve to protect its member states from the imposition of post-Modern Western “new rights” that threaten the universality of human rights.  It would seem that ASEAN’s Human Rights Declaration has revived the “Asian Values” debate, discussed more fully below.

Three Issues

“The ASEAN Way”

The core values of ASEAN can be found in Article 2 of the Charter as “Principles,” which include respect for different cultures, languages and religions, while emphasizing “common values in the spirit of unity in diversity.” The gravamen of these aspirational core principles –are in accord with an authentic culture of universal human rights including respect for the rule of law, good governance, renunciation of the use of force and the peaceful settlement of disputes. However, as commentators have noted, the “unity within diversity” principle in the ASEAN context may be a prescription for turning a blind eye to egregious human rights atrocities enshrining “the so called ASEAN Way of non-interference in the internal affairs [of rogue state members].”[29]

The “ASEAN Way” is a process of consultation, consensus and “non-interference” all of which was eventually codified in the Chapter in Article 20(1). However, the Charter has also modified the rules for ASEAN to deal with the human rights violation of its members by adding a mechanism for arbitrating obdurate “hold out” postures of state members. The Charter provides that the ASEAN Summit may “decide” disputes involving state members of ASEAN whether or not states members consent.[30] The option exists for ASEAN to resolve disputes and the non-compliance of state members,[31]  which is an expression of its new objective legal personality, i.e., “the possession of the organization’s own ‘distinct will’ apart from that of its members, evidenced by the organization’s power to take binding decisions upon the entire membership through the vote of a mere majority of its members.”[32] At the same time, the Charter has  implicitly “opened the door for a robust interpretation and application of the norm of non-interference.”[33]

Setting up human rights mechanisms in ASEAN may prepare the way for greater Asian human rights developments, perhaps, following the “step by step” path marked by the growing economic integration of Asian nations.[34] The economic approaches are characterized by “flexible participation and implementation” and appear to be “indicative of a nuanced recalibration of the consensus approach.”[35]From a pragmatic point of view, the same formulas for economic integration may be used to advance human rights in ASEAN and in the greater Asia and Pacific area.[36]

ASEAN nations have broken the stalemate of requiring total consensus on economic initiatives in the following three ways. One approach is the “ASEAN–X” formula characterized by most of the ASEAN nations, minus a few acting in consort.  Within the ten-member organization of ASEAN  those “ states that are not ready to participate in the range of free trade agreements use this formula and may participate at a later stage.” Another approach is that of two ASEAN nations plus more that is the “ASEAN 2+X” sum. ASEAN employs this formula to accommodate the differing speeds of integration and development of the various ASEAN nations. This formula allows two member states to advance in modes of cooperation when they are ready while those that are – not up to speed – may join later, so that no member holds back the group. A third approach is that all ASEAN nations may join with non-ASEAN nations that wish  to create a joint economic venture. It is called the “ASEAN +3” equation (ASEAN nations plus China, Japan, and Korea) or the “ASEAN +6” (ASEAN nations plus Australia, India, and New Zealand) formula.[37]

From the beginning, the factors hindering progress towards establishing human rights mechanisms in ASEAN has included the lack of political will, different cultural value systems and languages, legal issues concerning human rights norms embodied in UN treaties, political issues centering on state sovereignty, and the economic and developmental diversity of these various nations.[38] The Working Group for an ASEAN human rights mechanism considered three possible instruments: a declaration of principles, a human rights commission, and a human rights court.[39] A human rights declaration and court were not provided for, but Article 14 stated that a Human Rights Body would be established for “the promotion and protection of human rights and fundamental freedoms.”[40] However, what many believe is necessary for any serious treatment of human rights violations is the triple-prong model adopted by the inter-American, European, and African systems of human rights, namely –  a convention and declaration, a human rights commission, and a human rights court.[41] On the other hand, even without these mechanisms, the ASEAN charter of itself makes a difference and “marks a convergence of ASEAN towards ‘universalizing’ core human rights norms as now seen in its Organization Principles and the new requirements of ASEAN membership obligations.”[42]

“The Asian Values Debate”

The “Asian Values” debate, which put “the parochialism of ‘Asian values versus Western imperialism,’”[43] drew international attention when ASEAN delegations to the Vienna World Conference on Human Rights (1993) claimed an exception from the imposition of Western, so-called, universal human rights. The 26th ASEAN Ministerial Meeting sent a joint communiqué which stressed that “development is an inalienable right and that the use of human rights as a conditionality for economic cooperation and developmental assistance is detrimental to international cooperation and could undermine an international consensus on human rights.”[44] The Vienna Declaration rejected these claims and denied an exception from the sweep of universal core human rights on the basis of cultural relativism, in stating: “It is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”[45]

The arguments put forward by Asian values proponents can be seen in one of three ways: 1) as an excuse for tyrant’s rights, that is, as an attempt by various Asian dictatorial regimes to avoid scrutiny of their abysmal human rights record by asserting that human rights are a Western or Capitalist imposition; 2) as a last stand in resisting post-modern Western cultural relativism sweeping the developing world,[46] which fights in defense of truly universal innate core human rights; or 3) as an overall position that includes elements of both perspectives.

An example of the first viewpoint may be heard in the Chinese Communist delegation’s disingenuous attempt to regionalize core political rights as “Western” in an attempt to deflect criticism from China’s egregious violation of these same political rights:

The concept of human rights is a product of historical development. It is closely associated with specific social, political and economic conditions and the specific history, culture and values of a particular country. Different historical development stages have different human rights requirements. Countries at different development stages or with different historical traditions and cultural backgrounds also have a different understanding and practice of human rights.[47]

On the other hand, ASEAN societies may genuinely wish to shield themselves from permissive Western culture and excessive post-modern individualism, epitomized by the hedonistic sexual and reproductive rights movement:[48]

We draw a line between liberty and license. We do not deem it as a matter of constitutional principle that there should be a right to desecrate a national flag, to blaspheme our religion and to walk freely into shops to buy murderous weapons. We view a free-wheeling sexual lifestyle, drug taking and alcohol addiction with revulsion. With the bulk of us, pornography is not part of free speech, abortion on demand is not part of personal liberty and homosexuality is not part of freedom of choice. We acknowledge that rights and responsibilities must go hand- in- hand and that freedom is not an end in itself.[49]

Nobel Peace Prize Laureate and former president of South Korea, Kim Dae Jung, contends that concepts of the universal and objective nature of human rights are part of Asia’s traditions:  “Asia has its own venerable traditions of democracy, the rule of law, and respect for the people.  Asia’s destiny is to improve Western concepts, not ignore them.”[50] Nobel Prize winning economist, Amartya Sen, described development as substantive human freedoms including both civil and political freedoms as means and ends in themselves.[51] If this is true, then “human rights norms should not be seen as an obstacle, but as necessary instruments to advance states’ conception of the ‘good,’ or the individual’s ‘personhood’,” which form part of the “human capital” the poor need to accumulate for authentic integral development.[52]

Perhaps, it is not so much the political rights per se but the imposition of permissive post-modern Western mores as human rights that is offensive to various leaders in ASEAN. Former Prime Minister of Malaysia, Dr. Mahaithir, regarded the post-modern West as “morally decadent because of the growth of gay rights and relative success of the women’s movement.”[53]    Former General Secretary of the UN, Kofi Annan, has at times, underlined a more authentic vision of human rights as innate and, for that reason, universal and inviolable:

There is no one set of European rights, and another of African rights. Human rights assert the dignity of each and every individual human being, and the inviolability of the individual’s rights. They belong inherently to each person, each individual, and are not conferred by, or subject to, any governmental authority. There is not one law for one continent, and one for another. And there should be only one single standard –a universal standard –for judging human rights violations.[54]

The case of the admission of Cambodia into ASEAN may be illustrative of when the ASEAN Summit has acted decisively, in an un-“ASEAN way.” When Cambodia sought admission to ASEAN, it was told to achieve peace within its borders first, before it would be granted admittance. However, this was not a requirement when Burma sought admittance. So, what justifies the different treatment? Some suggest ASEAN is more willing to intervene in the internal affairs of one of its member states if domestic turbulence threatens to spill over into other countries; otherwise, even if a nation’s internal affairs involve egregious violations of human rights, ASEAN may not view them as a threat to the regional status quo.[55]

Along these lines, ASEAN has tended to see itself as a family with a liberally applied “live and let live” approach to each other’s internal domestic policies.[56] However, what goes on in the privacy of the home should not always receive a blind eye from one’s neighbors, especially when it involves matters of domestic abuse. One’s home may be one’s castle in many respects, but it should not imprison victims of crime, muffling their cries for help. Respect for human dignity and genuine human rights must supersede state sovereignty. This growth in the formation of international conscience may be seen as reflected in “the emergence of the putative ‘responsibility to protect’ (R2P) norm in humanitarian law.”[57] If any nation’s government is unwilling or unable to protect its own citizens from “mass atrocity crimes (e.g. ethnic cleansing, genocide),…then a wider responsibility lies with the international community…and if required, [to] act effectively.” However, the use of force on an abusive state government is legitimate, some suggest, only if endorsed by the United Nations (UN) Security Council.[58]

When Pope Benedict XVI addressed the United Nations in 2008, he spoke quite extensively about the “principle of the responsibility to protect,” noting that although it had only been recently defined, this responsibility has been implicitly present from the very the origins of the UN. In fact, it “was considered by the ancient ius gentium as the foundation of every action taken by those in government with regard to the governed.”[59] Francisco de Vitoria “described this responsibility as an aspect of natural reason shared by all nations, and the result of an international order whose task it was to regulate relations between peoples.”[60]  Pope Benedict  XVI noted that R2P only makes sense if it points to the transcendence and the natural reason of the human person: “now, as then, this principle has to invoke the idea of the person as an image of the Creator, the desire for the absolute and the essence of freedom.”[61] When this orientation has been abandoned, “freedom and human dignity [have been] grossly violated.”[62]

The world is still waiting to see whether the ASEAN Summit or the AICHR have the political will to “decide” to protect the victims of human rights violations by its most notorious rogue nation – Burma/Myanmar. ASEAN is beginning to come to grips with the idea of R2P and “responsible sovereignty,” meaning that each country is responsible for the effects its domestic policies produce in other sovereign states as well as its impact on its own citizens.[63] Responsible sovereignty, for better or worse, will mean that international customary law will have a greater role to play in a country’s internal affairs. “More fundamentally, ASEAN will also have difficulty justifying its non-observance of prevailing and emerging international norms to the domestic constituencies as well.”[64]

“The Twin Dangers Facing ASEAN”

There are two dangers facing ASEAN human rights mechanisms. The first risk concerns ineffective action in the face of authentic human rights violations of member states. The second hazard involves the imposition of ideological claims under the guise of human rights.

Many influential Western public advocacy groups believe sexual and reproductive rights and gender mainstreaming should be grouped with torture, crimes against humanity, war crimes, apartheid, racial discrimination, and sexual discrimination as opinio juris obligations to which all ASEAN states are bound to comply under the international human rights norms the ASEAN Charter incorporates by reference.[65] In other words, it is not unlikely that any measures ASEAN employs to bring Burma in line with respect to the core principles of human rights (respect for rule of law, democratic principles, free and open elections, freedom from torture, and crimes against humanity) could, also, be brought to bear against state members for non-compliance with the highly contentious post-modern sexual and reproductive rights and gender mainstreaming.

While the proponents of “Asian values” are unpersuasive insofar as they advance the claims of cultural relativism, it is equally unconvincing to argue that the very existence of cultural diversity means that there is only one political norm binding all nations. In this latter regard, one might underline that: “The fact of moral diversity no more compels our approval of other ways of life than the existence of cancer compels us to value ill-health.”[66]

The foundation of “new” human rights claims should be carefully considered to ensure that the call for “full enforcement and universality of human rights” does not constitute “another mode of Western imperialism to arrest the development of Southern states.”[67] One might very well query whether the mingling of post-modern “decadent” human rights claims (e.g. “sexual and reproductive rights” and “gender” ideology) with the authentic body of universal human rights is in the service of the hegemony of the post-modern West.

Indeed, some leaders of developing countries have voiced their concerns about the human rights project being used as a tool of repression, and there is evidence to support their belief. For example, in 1995, the Vice Major of Manila, Lito Atienza, referenced the newly declassified United States National Security Memorandum 200 (NSSM 200) when he told his audience – “Tell the Americans to dump their damn condoms in Manila Bay.”[68]  The intention behind NSSM 200 as inducing “smaller family size” in less developed nations has been explained in the following terms:

“the real problem of strategic supply of vital mineral ores for the Unites States was not in their scarce physical supply, but in the political and economic issues of access, given the conflicts of interest between the developed and developing world. These conflicts of interest over the natural resources of the developing world would be less exacerbated under conditions of slow or zero population growth and the elimination of large, growing, unemployed and rebellious youthful populations. Therefore, NSSM 200 urged that greater motivation for smaller family size be brought to bear on developing nations. However, because leaders in the least developed countries (LDCs) might see this as a form of economic or racial imperialism, NSSM 200 recommended that the United States promote reduction in fecundity in the LDCs as a vindication of the right of individuals to freely and responsibly number and space their children, and as the way of social and economic development for poor countries. To better motivate the masses of the LDC to embrace smaller family size, minimal levels of education, especially for women, would be necessary in order to indoctrinate them in the desirability of smaller family size.[69]

Given the fact that all ten ASEAN state members have signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), one should not be surprised if the AICHR brings pressure on members states to fully comply with the recommendations for the CEDAW treaty body reports for their countries. Under the tutelage of the Center for Reproductive Rights (CRR), ASEAN’s intergovernmental commission on Human Rights (AICHR) is being shown how to bring the Philippines in line.

For instance, for ten years, the Manila City government has prohibited public health facilities funded by Manila City from counseling and recommending contraceptives. The CRR opines that CEDAW, the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, all require state parties to provide access to family planning services and information; and as such, suggests that Manila City’s “NFP only ordinance is in violation of these treaty commitments insofar as it fails to provide a full range of family planning information.”[70] The CRR also encouraged and then commended the Philippines Commission on Human Rights, a national human rights body, for its, “strong statement calling for the revocation of Manila City’s ban on contraception, categorizing it as in violation of human rights obligations, and urging the council to apologize.”[71]

Shortly after the creation of the AICHR, the CRR presented its vision of global, sexual reproductive rights to members of AICHR during their first visit to the United States. The CRR praised AICHR for being “uniquely positioned to provide leadership on this important humanitarian issue” concerning maternal mortality due to lack of access to comprehensive reproductive healthcare services, including family planning[72] This humanitarian issue also concerned pervasive “gender” inequality and discrimination “as it begins to implement its mandate to promote human rights in Southeast Asia and assumes the role of key architect of human rights norms and standards in the region.”[73]

Asian values ought not to be used to justify gross violations of human rights, as the Minister of Foreign Affairs of Singapore emphasized: “Murder is murder whether perpetuated in America, Asia, or Africa. No one claims torture as part of their cultural heritage.”[74] However, Asian values, in so far as they constitute authentic human rights, ought to be used to shield the AICHR so that it is not co-opted or coerced to serve the political and economic/demographic interests of powerful Western nations. These nations should not be permitted to force ASEAN member states to discriminate against their own people, for example, based on the stage of their development.[75]

In sum, only an objective understanding of human rights can provide a sound basis for a culture of peace and integral human development. The twin dangers facing ASEAN human rights mechanisms are 1) the peril of legitimizing the human rights violations of its member states through ineffective action while 2) at the same time effectively imposing upon all its member states post-modern Western ideological “dis-values”, under the guise of human rights

Fact Sheet on the ASEAN System

The UN Commission on Human Rights (UNCHR) set up a study group in the 1960’s to further regional human rights commissions around the world. In 1968, the UNCHR requested that the UN Secretary General plan regional seminars in areas of the world that had no regional human rights commissions. A series of seminars and workshops were set up in Asia and the Pacific starting in 1982.[76]

ASEAN was established in Bangkok, Thailand on August 8, 1967 at the height of the Vietnam War as a political coalition of five Southeast Asian nations – the Philippines, Malaysia, Singapore, Indonesia, and Thailand – to resist Communist aggression. Following the close of hostilities in Vietnam, ASEAN expanded its scope to include economic development, hoping to create a single market and economic community by 2015.

The Secretariat of ASEAN is located in Jakarta, Indonesia. Over the years, five new members have joined – Brunei (1984), Vietnam (1995), Laos (1997), Burma (1997) and Cambodia (1999). Timor-Leste made an application to become a member of ASEAN in March of 2011.

The UN Conference on Human Rights in Vienna in 1993 produced the Vienna Declaration and Programme of Action which was adopted by 171 states. It recognizes the importance of regional human rights mechanisms: “Regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international instruments…where they do not already exist.”[77]

In 1993, ASEAN’s heads of state met in Bangkok and adopted The Asia Pacific Declaration on Human Rights, also known as, The Bangkok Governmental Human Rights Declaration. At the 26th ASEAN Ministerial Meeting in Singapore in July of 1993, they declared their general support, with important reservations, for the Vienna Declaration of 1993. The ASEAN Inter-Parliamentary Organization (AIPR) responded to the statement of support for the Vienna Declaration.

In July of 1995, the Regional Working Group for an ASEAN Human Rights Mechanism (Working Group) came into existence and in July of 2000 it submitted a Draft Agreement for the Establishment of the ASEAN Human Rights Commission to ASEAN officials. At its 9th Annual Summit in Bali, ASEAN issued the Declaration of ASEAN Concord II (Bali II) declaring that the three pillars of the ASEAN Community were political and security cooperation, economic cooperation and social-cultural cooperation. ASEAN adopted a Plan of Action for a Security Community that expressed the desire to strengthen democratic institutions and protect vulnerable groups.

In December of 2005, at the ASEAN Summit held in Kuala Lumpur, ASEAN leaders issued the Kula Lumpur Declaration on the Establishment of the ASEAN Charter and established an Eminent Persons Group (EPG) to make recommendations for the proposed Charter. The High-Level Task Force took over for the EPG and they argued that the proposed Charter ought to include an ASEAN human rights mechanism.

In January of 2007, ASAEN leaders at the ASEAN Summit in Cebu issued the Cebu Declaration on the Blueprint of the ASEAN Charter which endorsed the High-Level Task Force recommendations. In March of 2007, the ASEAN Foreign Ministers Meeting in Cambodia approved the inclusion of a human rights body in the proposed Charter.

ASEAN acquired international juridical personality as a functional intergovernmental organization when ASEAN heads of government signed the Charter of the Association of Southeast Asian Nations at the 13th ASEAN Summit in Singapore on November 20, 2007. On December 15, 2008, the ASEAN Charter came into force. ASEAN’s Charter mentions three goals: 1) to give ASEAN international legal personality and to streamline its decision making; 2) to strengthen its institutions, especially the Secretariat; and 3) to establish mechanisms to monitor compliance of its agreements and settle disputes between its members. The Charter contains thirteen chapters, fifty-five articles and four annexes. ASEAN’s declaration of international legal personality is found in chapter three. The ASEAN Human Rights Body is mentioned in chapter four.

The Terms of Reference (TOR) for the ASEAN Human Rights Body (AHRB) were formally adopted on July 20, 2009, by all ten ASEAN Foreign Ministers. On October 23, 2009, ASEAN leaders inaugurated the ASEAN Intergovernmental Commission on Human Rights (AICHR) as the overreaching human rights institution for the promotion and protection of human rights in ASEAN. However, AICHR will have primarily an advisory, as opposed to enforcement role. One of the main objectives of the AICHR is “to develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation” through conventions and human rights instruments.”[78]

On November 18, 2012 ASEAN adopted a Human Rights Declaration at its summit in Phom Penh. Article 8 of the Declaration contains the following language that has been the subject matter of much debate: “The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.”

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Human Rights Watch, “Civil Society Denounces Adoption of Flawed ASEAN Human Rights Declaration, http://www.hrw.org/print/news/2012/11/19/civil-society-denounces-adoption-flawed-asean…;

International Gay &Lesbian Human Rights Commission, ASEAN Human Rights Declaration Refuses to Protect LGBTIQ Rights!” http://www.iglhrc.org/content/asean-human-rights-declaration-refuses-protect-lgbtiq-rights.

Kelsall, Michelle Staggs, The New ASEAN Intergovernmental Commission on Human Rights: Toothless Tiger or Tentative First Step?, 90 Asia Pac. Issues 1 (2009).

Kim, Dae Jung, Is Culture Destiny? The Myth of Asia’s Anti-Democratic Values, 73 Foreign Aff. 189 (Nov./Dec. 1994), available at http://www.foreignaffairs.com/articles/50557/kim-dae-jung/is-culture-destiny-the-myth-of-asias-anti-democratic-values).

McGeown, Kate, East Timor Applies to Join ASEAN, BBC News Asia –Pacific (Mar. 4, 2011), http://www.bbc.co.uk/news/world-asia-pacific-12644608; see also, Tan, supra note 11, at 177 n. 34.

Scarnecchia, Brian, Human Rights in ASEAN: A Catholic Critique of the Human Rights mechanisms in the Association of the Southeast Asian Nations (ASEAN), Vol. 2 Ave Maria Int’l L. J. 62 (2013), www.amslilj.org

Tan, Eugene K.B., The ASEAN Charter as Legs to go Places’: Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia, 12 Sing. Year Book Int’l L. & Contribs. 171, 197 (2008).

The World Organization Against Torture, “ASEAN Human Rights Declaration: Peoples of ASEAN states must not accept any protection lower that universally accepted human rights standards,” http://wpan.files.wordpress.com/2012/11/asean-ahrd-declaration-26112,pdf

Thio, Li-ann, Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go Before I Sleep, 2 Yale H.R. & Dev. L.J. 1, 2 (1999).

UN News Centre, “UN official welcomes ASEAN commitment to human rights, but concerned over declaration wording,” http://www.un.org/apps/news/printnewsAr.sp?nid=43536

Vejjajiva, H.E. Abhisit, Remarks at the Inaugural Ceremony of the ASEAN Intergovernmental Commission on Human Rights (Oct. 23, 2009), available at http://www.asean.org/asean/asean-summit/item/remarks-by-he-abhisit-vejjajiva-prime-minister-of-the-kingdom-of-thailand-on-the-occasion-of-the-inaugural-ceremony-of-the-asean-intergovernmental-commission-on-human-rights-aichr.

Voice of America, ASEAN Approves Controversial human Rights Declaration, http://www.voanews.com/articleprintview/1548305.html;

Yee, Chiew Choong, et al., South East Asia and International Law, Sing. J. Int’l & Comparative L. 616 (2002)

Links

Charter of the Association of Southeast Asian Nations (2008), available at http://www.asean.org/asean/asean-charter/asean-charter

Terms of Reference of ASEAN Intergovernmental Commission on Human Rights (2009), available at http://www.unhcr.org/refworld/pdfid/4a6d87f22.pdf

ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (2010), available at http://www.aseansec.org/24447.htm#Article-2

ASEAN Human Rights Declaration (2012), available at http://www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declar

www.aseansec.org

http://twitter.com/ASEAN

http://www.facebook.com/aseansecretariat

www.state.gov/p/eap/regional/asean (USA)

http://asean.usmission.gov (US Mission to ASEAN)

www.dfat.gov.au/asean (Australia)

www.asean.org.nz (New Zealand)

www.ec.europa.eu/trade/policy/countries-and-regions/asean (European Commission)

 

 

 

 

 

 

 

 

 

 

 

[1] Eugene K.B. Tan, The ASEAN Charter as Legs to go Places’: Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia, 12 Sing. Year Book Int’l L. & Contribs. 171, 197 (2008).

[2] Kate McGeown, East Timor Applies to Join ASEAN, BBC News Asia –Pacific (Mar. 4, 2011), http://www.bbc.co.uk/news/world-asia-pacific-12644608; see also, Tan, supra note 11, at 177 n. 34.

[3] Tan, at 197.

[4] Sou Chiam, Asia’s Experience in the Quest for a Regional Human Rights Mechanism, Victoria U. of Wellington L. Rev. 127, 137 (2009).

[5] Diane A Desierto, Universalizing Core Human Rights in the ‘New’ ASEAN: A Reassessment of Culture and Development Justifications Against the Global Rejection of Impunity, 1 Göttingen J. Int’l L. 77, 88 (2009), available at http://ssrn.com/abstract=1485538.

[6] Id. at 89.

[7] Tan, at 171–172.

[8] Id. at 172.

[9] Id. at 177.

[10] Id. at 177.

[11] Tan Hsien-Li, The ASEAN Human Rights Body: Incorporating Forgotten Promises for Policy Coherence and Efficacy, 12 Sing. Year Book Int’l L. & Contribs. 239, 255 (2010).

[12] Press Release, ASEAN Secretariat, Another Step Forward for Regional Human Rights Cooperation (July 20, 2009), available at http://www.law.georgetown.edu/RossRights/chapters/documents/PR-Another-Step-Forward-for-Regional-HR-Cooperation.pdf.

[13] Terms of Reference of ASEAN Intergovernmental Commission on Human Rights (2009), available at http://www.unhcr.org/refworld/pdfid/4a6d87f22.pdf.

[14] H.E. Abhisit Vejjajiva, Remarks at the Inaugural Ceremony of the ASEAN Intergovernmental Commission on Human Rights (Oct. 23, 2009), available at http://www.asean.org/asean/asean-summit/item/remarks-by-he-abhisit-vejjajiva-prime-minister-of-the-kingdom-of-thailand-on-the-occasion-of-the-inaugural-ceremony-of-the-asean-intergovernmental-commission-on-human-rights-aichr.

[15] Id.

[16] ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (Apr. 7, 2010), available at http://www.aseansec.org/24447.htm#Article-2.

[17] ASEAN Human Rights Declaration, http://www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declar… Last visited 4/19/2013.

[18] Human Rights Watch, “Civil society Denounces Adoption of Flawed ASEAN Human Rights Declaration, http://www.hrw.org/print/news/2012/11/19/civil-society-denounces-adoption-flawed-asean…; Human Rights Brief, “Concerns Over the conditionality of Human Rights Protections in New ASEAN Declaration,” http://hrbrief.org/2013/02/concerns-over-the-conditionality -of-human-rights-protections-in-new-asean-declaration; Voice of America, ASEAN Approves Controversial human Rights Declaration, http://www.voanews.com/articleprintview/1548305.html;

[19] ASEAN Human Rights Declaration, par. 8 (Nov. 18, 2012)(emphasis added).

[20] UN News Centre, “UN official welcomes ASEAN commitment to human rights, but concerned over declaration wording,” http://www.un.org/apps/news/printnewsAr.sp?nid=43536

[21] International Gay &Lesbian Human Rights commission, ASEAN Human Rights Declaration Refuses to Protect LGBTIQ Rights!” http://www.iglhrc.org/content/asean-human-rights-declaration-refuses-protect-lgbtiq-rights.

[22] The World Organization Against Torture, ASEAN Human Rights Declaration: Peoples of ASEAN states must not accept any protection lower that universally accepted human rights standards,” http://wpan.files.wordpress.com/2012/11/asean-ahrd-declaration-26112,pdf

[23] Marguerite A. Peeters,”Towards preserving the universality of human rights: The gender agenda divorces the human person from himself or from herself, from his or her body and anthropological structure,” L’Osservatrore Romano, April 19, 2013,

www.oservatoretromano.va/portal/dt?JSPTabContainer.setSelected+JSPTabContain…

[24] Jane Adolphe, “The U.N. Human Rights Council Resolution on Sexual Orientation and Gender Identity (Part 3),” WWW.zenit.org/en/articles/the-u-n-human-rights-council-resolution -on-sexual-orientation, last visited 4/19/2013.

[25] Archbishop Silvano M. Tomasi, Address to the 19th Session of the Human Rights council regarding item 3, News. VA, Vatican Radio, March 9, 2012, http://www.news.va/en/news/holy-see-addresses-un-human-rights-council-on gender… Last visited 4/19/2013.

[26] Archbishop Dominique Mamberti, Address at the High Level Segment of the22nd Session of the Human Rights Council, Geneva, February 26, 2013, http://www.vatican.va/roman_curia/secretariat_state/2013/documents/_20K.

[27] Id.

[28] Id.

[29] ASEAN Charter, art. 2(2)(1) quoted in Tan, supra note 11, at 188.

[30] Tan, at 189.

[31] ASEAN Charter, art. 26, 27.

[32] Desierto, at 92.

[33] Tan, at 190.

[34] Chiam, at 148.

[35] Tan, at 182.

[36] Tan, at 181. See also Chiam, at 148.

[37] Chiam, at 148.

[38] Chiam, at 143.

[39] Id. at 137–38.

[40] ASEAN Charter, art. 14, available at http://www.aseansec.org/publications/ASEAN-Charter.pdf.

[41] Hsien-Li, at 244.

[42] Desierto, at 80.

[43] Desierto, at 114.

[44] ASEAN Charter, art. 17; see also Tan, at 182–83.

[45] Desierto, at 83.

[46] See Marguerite A. Peeters, The Globalization of the Western Cultural Revolution: Key Concepts, Operations Mechanisms, Benedict Kobus, English trans., (Institute for Intercultural Dialogue Dynamics, 2007), http://www.iis@skynet.be.

[47] Chiam, at 145 (referring to Human Rights and International Relations in the Asia Pacific (James T. H. Tang ed., 1995)).

[48] Li-ann Thio, Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go Before I Sleep, 2 Yale H.R. & Dev. L.J. 1, 2 (1999).

[49] Id. at 18–19.

[50] Chiam, at 146 (referring to Dae Jung Kim, Is Culture Destiny? The Myth of Asia’s Anti-Democratic Values, 73 Foreign Aff. 189 (Nov./Dec. 1994), available at http://www.foreignaffairs.com/articles/50557/kim-dae-jung/is-culture-destiny-the-myth-of-asias-anti-democratic-values).

[51]Desierto, at 104.

[52]Id. at 105–06.

[53] Chiam, at 146. See also Chris Brown, Human Rights, in The Globalization of World Politics: An Introduction to International Relations 599 (John Baylis & Steve Smith eds., 2001).

[54] Kofi Annan, Address by the UN Secretary General to the Foreign Institute to the Paasiviki Association in Helsinki, Finland (Aug. 13, 1997).

[55] Thio, at 57.

[56] Tan, at 186.

[57] Id. at 185.

[58] Id. (noting that the ‘R2P’ doctrine was adopted by the UN World Summit in 2005); see also Pope John Paul II, Evangelium Vitae, ¶ 55, cited in The Catechism of the Catholic Church, ¶ 2265 (2d ed. 1997) (noting the duty of defense of the third party: “[L]egitimate defense can be not only a right but a grave duty of defense of the third party.”). The author was told by one Asian Catholic Bishop that this section of the Catechism is to rebuke the leaders of the governments of Western countries for standing ideally by and allowing ethnic cleansing and other mass atrocities to occur in former Yugoslavia in the early 1990s.

[59] Pope Benedict XVI, Address of His Holiness Pope Benedict XVI to the 62nd Session of the United Nations General Assembly: 95th Plenary Meeting (Apr. 18, 2008), available at http//www.holyseemission.org/Pope%20Benedict%20XVI%20GA%20English.html.

[60] Id.

[61] Id.

[62] Id.

[63] Tan, at 194.

[64] Id  at 194.

[65] Desierto, at 84.

[66] Id. at 94.

[67] Id. at 102.

[68] The author was present in October 1995, when the vice Major of Manila, Philippines, Lito Atenza, made this remark to a gathering of participants from Human Life International 2nd Love Life and Family Conference, referencing the United States National Security Study Memorandum (NSSM 200). See Stephen D. Mumford, The Life and Death of NSSM 200: How the Destruction of Political Will Doomed a U. S. Population Policy (Bethesda, MD: Center for Population Research, 1994), 45–186; citing Implications of Worldwide population Growth for the U.S. Security and Overseas Interests, National Security Memorandum 200, no. 37. See also Michel Schooyans, The Totalitarian Trend of Liberalism, trans. John Miller (St. Louis, MO: Central Bureau, 1995), 57–58; Marguerite Peeters, Globalization of the Western Cultural Revolution: Key Concepts, Operational Mechanisms, trans. Benedict Kobus (Brussels: Institute for Intercultural Dialogue Dynamics, 2007), 115–16.

[69] D.  Brian Scarnecchia & Terence McKeegan, The Millennium Development Goals in Light of Catholic Social Teaching, (New York: Catholic Family and Human Rights Institute, 2009), p. 90, footnote 320.

[70] Center for Reproductive Rights, Imposing Misery: The Impact of Manila’s Contraception Ban on Women and Families 48 (2007), available at http://reproductive rights.org/sites/crr.civicactions.net/files/documents/imposingmiseryupdated.pdf.

[71] Id.

[72] Id.

[73] Id.

[74] Desierto, at 93.

[75] Id. at 100. “I believe profoundly in the universality of the human spirit. Individuals everywhere want the same essential things…I believe there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development.” (emphasis added)

[76] Chiam, at 128.

[77] Vienna Declaration and Programme of Action, ¶ 37, A/CONF.157/23 (July 12, 1993), available at http://www.unhcr.org/refworld/pdfid/3ae6b39ec.pdf.

[78] See Shaun Narine, Human Rights Norms and the Evolution of ASEAN: Moving without Moving in a Changing regional Environment, 34 Contemporary Southeast Asia 365, 367–75 (2012).

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