Chapter 1: Updating the human rights institutionalisation process in the ASEAN region 1.1: Introduction It is generally deemed a disappointment to the universality of human rights that Asia does not have a regional human rights mechanism; unlike the Americas, Europe, and Africa, notwithstanding the varying standards of efficacy these bodies possess. As such, there have been unabated calls to correct this anomaly. This was most volubly witnessed in the “Asian values” debate of the 1990s. Frankly speaking, however, an Asia that spans from the Middle East to Japan is geographically, politically and culturally too diverse for human rights to be managed effectively by a single overarching mechanism. Enthusiasm for Asia to have a system of human rights protection must recognise the disparate political structures that range from communism like in China and Vietnam; the “semi- Virginia A. Leary, The Asian Region and the International Human Rights Movement, in Claude E. Welch and Virginia A. Leary (eds.), Asian Perspectives on Human Rights (Boulder, San Francisco, Oxford: Westview Press, 1990), p.13-4. It is recognised that there exist counter-arguments to the school of thought which holds regional human rights bodies as “satellites” of the UN system. Critics of the latter school hold that regionalism, and the opportunity for cultural adaptation and justification, can lead to a dilution of the universal values of human rights. I would generally agree with Schreuer that although variations exist among the regional systems, “the basic unity of human rights as a universal set of standards has prevailed over cultural relativism and regional fragmentation.” For a general discussion of universalism versus regionalism, see Christoph Schreuer, Regionalism v. Universalism, 6(3) EJIL (1995) 477-499, at 485. See for instance, Ralph Wilde, NGO Proposals for an Asia-Pacific Human Rights System, Yale Human Rights and Development L.J. (1998) 137. This has also been noted by Prof. Vitit Muntarbhorn in his lecture entitled “Regional Protection of Human Rights in Asia” at the International Institute of Human Rights, Strasbourg, France in July 1997, at http://www.hurights.or.jp/asia-pacific/no_10/no10_protection.htm (last accessed April 2007). authoritarianism” of Singapore and Malaysia; to full democracies such as India, the Philippines, South Korea and Japan. Moreover, cultural traditions, social practices and different environments result in particular needs for each country even while universal human rights take centre-stage. The insistence on cultural particularism had earlier resulted in the cacophony of Asian voices stressing each state’s individual priorities in the Regional Meeting for Asia of the World Conference on Human Rights held in Bangkok in 1993. This meeting was intended to coalesce the regional perspective on human rights so that they could be tabled at the subsequent World Conference on Human Rights held later that year in Vienna to re-affirm the universality of international human rights. However, the wide range of opinions pertaining to the different socio-political contexts of the participating states at the Bangkok meeting made it extremely difficult to agree on the terms of the Final Declaration of the Conference (hereinafter the “Bangkok Declaration”). Moreover, the Asian states’ rigid stance on cultural relativism, trenchant opposition to “ideological imperialism” in the international human rights project, and the insistence on the right to development and the pre-eminence of socio-economic priorities caused the international community anxiety that the Bangkok Declaration would “hijack” the Vienna Conference’s aim of concluding universal principles of human rights for the world community. Statements by representatives of Asia governments at the Vienna World Conference on Human Rights on hand with author. E.g. Indonesian Foreign Minister Ali Alatas declared on 14 June 1993, “We… voice our concern at… international media reports that tend to give the impression that the success of the Conference is being threatened by a clash of values between the developed Amid such a background, therefore, even if a general Asian human rights mechanism is possible in the future, present circumstances not permit such a structure, let alone the ambitious plan of having an institution that spans the AsiaPacific. Asia does not possess a regional political organisation like the African Union or Organisation of American States that can help to spearhead human rights efforts. The states also not share a common objective borne out of catastrophic experiences to sustain the institution of an independent human rights mechanism as seen in the establishment of the European Commission and Court of Human Rights after the Second World War. It is thus unsurprising that proposals for a pan-Asian human rights institution did not progress past the 1980s and 1990s. If human rights mechanisms are to be successfully established in Asia, subregions need to be delineated from the larger Asian context such that sub-regions countries of the North and the developing countries of the South… This depiction is not only erroneous but also unwarranted and therefore counterproductive.” Since 1982, the UN has organised workshops on regional human rights arrangements in the Asian and Pacific region with the aim of establishing a regional mechanism. See Regional arrangements for the promotion and protection of human rights in the Asian and Pacific region at http://www.unhchr.ch/html/menu6/apw.htm (last accessed April 2007). On the nongovernmental level, the Asian Human Rights Commission convened a conference to declare an Asian Human Rights Charter –A People’s Charter to further the movement towards a statesponsored human rights charter for the whole continent, at http://www.ahrchk.net/charter/mainfile.php/declaration/ (last accessed 20 November 2005). The Law Association for Asia and the Western Pacific (Lawasia) also organised a Seminar on national, local and regional arrangements for the promotion and protection of human rights in the Asian region in 1982 to discuss the need for a regional human rights structure. See Human rights in the Asian region: Recent trends in human rights, Vol. II, Colombo, 21 June-2 July1982 (Sydney: Lawasia, 1982); and Wilde, above f.5. Not much has resulted from these initiatives. can be built first. While some may think that this is inefficient and that Asia should follow the prototype of a continent-based human rights system, the benefits arising from such smaller groupings are likely to outweigh such disadvantages –not least that there being more interest generated at this level, especially in Southeast Asia. Sub-regional systems can count on some shared history, closer intra-state relations and a smaller geographical area which would facilitate the system’s manageability. Bearing this in mind, I have chosen to study the prospects of the establishment of a human rights mechanism for Southeast Asia under the auspices of its regional organisation, the Association of Southeast Asian Nations (ASEAN). This is especially so as ASEAN has concretely stated in its landmark Charter of November 2007 that it will build a regional human rights mechanism. ASEAN states intend that the Charter be a regional pact that serves “as a legal and institutional framework of ASEAN to support the realisation of its goals and objectives” through the codification of “all ASEAN norms, rules, and values”. 10 This builds upon the series of annual announcements and action plans since the The prospect of an East Asian mechanism was considered initially. However, given the nature of East Asia relations, there has not been much enthusiasm for a system solely limited to this subregion as the mechanism would be most likely hit many political hurdles. For an overview of East Asian human rights, see Hidetoshi Hashimoto, The prospects for a regional human rights mechanism in East Asia (New York: Routledge, 2004). Gains in sub-regional initiatives have been recognised in the “Conclusions of the 11th Workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region”, Pakistan, 25-27 February 2003, para.16. At http://www.unhchr.ch/html/menu6/islamabad.htm (last accessed 16 June 2007). For convenience, I shall use “Southeast Asia” and the “ASEAN region” as synonymous, even though Timor Leste is considered a part of Southeast Asia but is not a member of ASEAN. Article 14(1) of the 2007 ASEAN Charter states “In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. 10 Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 12 December 2005, at http://www.aseansec.org/18030.htm (last accessed 16 June 2007). early 2000s that human rights be instituted as a key component in the building of a more cohesive ASEAN Community based on security, economics and sociocultural pillars. If and when human rights are codified within the ASEAN operative rules, the promotion and protection of human rights would definitely have higher priority and more credence than its present status. The thesis will leave aside the circuitous arguments of the “Asian values” debate to concentrate on actual measures that have been taken to improve the receptivity of human rights in the ASEAN region. This is especially important, I feel, as although the “Asian values” debate of the 1990s was promptly quashed by the Asian Financial Crisis in 1997 and examined thoroughly by many academics, 11 concepts of “universalism versus particularism”, “Asian or Confucian notions of rights and duties”, “cultural differences”, “communitarianism versus individualism”, “socio-economic and development rights preceding civil-political liberties” unfortunately continue to pervade many discussions on human rights in Asia, and in particular, Southeast Asia. 12 Furthermore, Southeast Asia has often 11 This is a selection of the voluminous literature on the said debate. For an overview, see for example, Victor Mallet, The trouble with tigers: The rise and fall of South-East Asia (London: HarperCollins Publishers, 1999); Michael Jacobsen and Ole Bruun (eds.), Human rights and Asian values: Contesting national identities and cultural representations in Asia (Surrey: Curzon, 2000); Lucian W. Pye, “Asian Values”: From Dynamos to Dominoes?, in Samuel P. Huntington & Lawrence E. Harrison (eds.), Culture matters: How values shape human progress (New York: Basic Books, 2000); Joanne R. Bauer & Daniel A. Bell (eds.), The East Asian challenge for human rights, Cambridge and New York: Cambridge University Press, 1999; Onuma Yasuaki, In Quest of Intercivilizational Human Rights: “Universal” vs. “Relative” Human Rights Viewed from an Asian Perspective, Asia Foundation’s Center for Asian Pacific Affairs Occasional Paper 2, March 1996; Yash Ghai, Asian Perspectives on Human Rights, 23(3) Human Rights Quarterly (1993) 342; Daniel A. Bell, The East Asian Challenge to Human Rights: Reflections on an East West Dialogue, 18 Human Rights Quarterly (1996) 641; and Dato’ Param Cumaraswamy, The Universal Declaration of Human Rights: Is it Universal?, 18 Human Rights Law Journal (1997) 476. 12 “Asian values” are often tabled at the conferences I have attended on human rights –the ASEAN-ISIS Colloquium on Human Rights (AICOHR) 2005 and 2006. Moreover, politicians been subsumed under East Asia in the debate such that over-generalisation has often happened. 13 This has resulted in the overlooking of the crucial details particular to Southeast Asia, not to mention the diverse backgrounds of its component states, including the obvious fact that societies such as Malaysia, Indonesia and the Philippines are distinctly non-Confucian, while even for Singapore it remains an artificial construct. Although much has since been written to unveil these common misconceptions, 14 they unfortunately continue to plague scholarship on human rights in Southeast Asia. 15 While this is slowly changing, “Asian values” blinkers must be cast off in examining the present case of human rights in Southeast Asia as that episode was unfortunately more political wrangling than a real debate on human rights. 16 have not appeared to change their minds about democracy and human rights in relation to Asian societies. See for instance, Prosperity, democracy linked? History says no, Straits Times, 27 August 2004. 13 See for instance, Mahathir Mohamad, Democracy, human rights, EAEC and Asian values: selected speeches, Hashim Makaruddin (ed.) (Selangor: Pelanduk Publications for the Prime Minister's Office of Malaysia, 1995; 2000 printing); Fareed Zakaria, Culture Is Destiny; A Conversation with Lee Kuan Yew, Foreign Affairs March/April 1994, at http://www.fareedzakaria.com/articles/other/culture.html (last accessed 20 November 2005); and Bilahari Kausikan, An East Asian approach to human rights, 2(2) Buffalo Journal of International Law (1995-6) 263-83. 14 Simon Tay S.C., Human Rights, Culture, and the Singapore Example, 41 McGill Law Journal (1996) 743; Jack Donnelly, Human Rights and Asian Values: A Defense of “Western” Universalism in Joanne R. Bauer & Daniel A. Bell (eds.), The East Asian challenge for human rights (Cambridge, UK ; New York : Cambridge University Press, 1999), p.60-87; Amartya Sen, Human Rights and Economic Achievements in Bauer and Bell, p.88-102; Onuma Yasuaki, Toward an Intercivilizational Approach to Human Rights, in Bauer and Bell, p.102-123; and William Theodore de Bary, Asian Values and Human Rights: A Confucian Communitarian Perspective (Cambridge: Harvard University Press, 1998), p.3-5. 15 For an excellent analysis, see Randall Peerenboom, Beyond universalism and relativism: The evolving debates about “values in Asia”, 14 Indiana International and Comparative Law Review (2003) 1. 16 However, the concepts raised during the 1990s furore are not in themselves wrong as difficulties such as cultural relativism in fact exist. Hence, it would be necessary to sift out the salient from the misleading, and take it into consideration of the establishment of an ASEAN human rights system. 1.2: Overview of thesis In the course of my investigations, I have realised that the post-“Asian values” progress in ASEAN regional human rights is largely due to the combined efforts of states; civil society comprising non-governmental organisations (NGOs) – both local and international; grass-roots organisations; international organisations like the UN and a politically aware and active citizenry. The increasing democratisation (albeit still in its primitive stages) of Southeast Asian societies and the onset of new and more “liberal” leadership (though this remains contentious given the ASEAN states’ predilection for authoritarianism) have enabled a more conducive atmosphere for human rights discussion and empowerment to flourish. This has been seen in the thawing state-civil society engagement over the years. For instance, the NGO – the Working Group for an ASEAN Human Rights Mechanism (hereinafter “the Working Group”) has persuaded ASEAN officials to take a more amenable stance through diplomatic persistence. In its turn, ASEAN has named the Working Group as a key partner in facilitating human rights in the region. Given that these ASEAN plans have at certain junctures suggested that the institution of a regional human rights mechanism could begin with the initial participation by three or four member states with the remaining members only to join when they are ready, I have chosen to concentrate on studying the five member states of Indonesia, Malaysia, the Philippines, Singapore and Thailand as they are the ones most likely to be the initial members. It is felt that the political structures of the other five ASEAN states – Cambodia, Laos, Myanmar, Vietnam and Brunei – are at present not likely to acquiesce to being held to account by others on their human rights records. 17 Strict supporters of the ideal of universal human rights may criticise this approach as acceding to and prolonging authoritarian rule in the countries which arguably need human rights most. Conversely, it is precisely because the establishment of a human rights system has to be handled with utmost sensitivity that I have borne in mind the real and practical considerations and have avoided considering the issue in absolute terms. For instance, even if the Burmese junta now acquiesces to participate in the regional human rights initiative but remains adamant about keeping to the national “brand” of human rights, this would defeat the whole purpose of having an ASEAN human rights mechanism in order to push national standards in alignment with the rest of the world’s. 18 It is hoped that regard for human rights will grow within ASEAN and that in time all ASEAN members will agree to adhere to human rights in creed and action. 17 Strictly speaking, ASEAN is a loose association of states without supranational powers. However, given the intrusive nature of human rights, it will be inevitable that some form of bilateral and multilateral scrutiny will occur when human rights are enshrined within the ASEAN framework. This human rights divide has also been noted by Prof. Tommy Koh who was involved in the negotiations for the ASEAN Charter has noted in the 7th Workshop for an ASEAN human rights mechanism that Indonesia, Malaysia, Philippines and Thailand are enthusiastic about ASEAN and human rights, while Cambodia, Laos, Myanmar and Vietnam are markedly less so. The middle-liners are Singapore and Brunei. See ASEAN’s human rights divide, Today, 13 June 2008. 18 See Myanmar government, Political Situation of Myanmar and its Role in the Region, p.21-36, at http://www.myanmar-information.net/political/english.pdf (last accessed 22 November 2005). Going on to the substantive aspects of establishing a regional system, several components must be present if an ASEAN human rights body is to materialise. First, a steady and persistent effort in engaging and encouraging ASEAN officials to undertake the regional institutionalisation of human rights is needed. As will be seen in the following chapters, previous attempts to convince the ASEAN states to institute a formal human rights regime in the region through philosophical justification or international legalisms have not borne fruit. Declarations of the universality of human rights based on humankind’s inherent dignity and shared brotherhood, and the parallels drawn with various religions to show the roots of inalienable human rights during the “Asian values” debate, did little to convince Asian states, including the ASEAN region. 19 Even if these theories were indubitable, truth often does not prevail over realism or “hard cases” in international politics. Given the continuing emphasis on sovereignty, ASEAN states cannot and will not be made to anything against their will. Moreover, even if all the states accept that human rights emanate from human nature, the liberal conceptualisation of human rights and democracy in the international sphere are not ideals that Southeast Asian societies are naturally familiar with or whose governments are anxious to promote wholesale. Second, even if they are becoming more congenial to the idea of human rights, ASEAN states have voiced that they prefer a systematic and “step-by-step” approach with proper consultation and consensus in building a regional human 19 For a concise discussion, see Hilary Charlesworth, The Challenges of Human Rights Law for Religious Traditions, in Mark W. Janis & Carolyn Evans (eds.), Religion and International Law (The Hague: Kluwer Law International, 1999), p.401-15. rights mechanism. 20 It is obvious that attempting to strong-arm them into instituting such a mechanism by merit of their promises made in international declarations have not worked. While this does signal continuing hesitancy on the part of ASEAN states, I feel that there is merit to this stand –the process of increasing and improving human rights in Southeast Asia is as important as the goal of establishing a regional human rights mechanism. Although the advantages of having a regional system imbued with universal norms are undeniable and should be striven towards, this must be done in manageable stages by putting the necessary infrastructure and fundamental institutions in place. Third, timing, sufficient resources, and a citizenry that understands how the mechanism works and governmental support are indispensable to its proper functioning. The instant establishment of a regional human rights mechanism cannot be held as an immutable good. It is impossible to set up a regional human rights mechanism and expect it to work merely because of its overriding merit. 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Zakaria, Fareed, Culture is Destiny: A Conversation with Lee Kuan Yew, 73(2) Foreign Affairs (1994) 109. 378 [...]... meetings voice parallel paths in the quest for regional human rights systems As early as 1994, the UN meeting for regional arrangements for the promotion and protection of human rights in the Asian and Pacific region held in Tehran saw the participating states stating certain points they wanted to hold immutable in the process of realising a regional mechanism 51 As will be seen, they – including the “step-by-step,... understanding of human rights in Southeast Asia and jumping to conclusions There is definitely more to the topic of human rights in Southeast Asia than the “Asian values” debate The only way advances in human rights in the region – both within the domestic sphere and as regional body –can be achieved is by having a real and practical understanding of the political and historical background of human rights... mechanism within the Association of Southeast Asian Nations (ASEAN) as indicated in the ASEAN Charter 3 Historical and geopolitical factors within the international order have indubitably contributed to the defensive and cautious attitude the ASEAN states display when faced with external pressures on human rights This chapter traces how the international human rights system in the recognisable form that... regular engagement with the ASEAN officials at a pace that is comfortable for each member state, as well as scaling back the suggestions that did not garner a favourable response –such as the proposal for an adversarial system of regional human rights monitoring through a supranational institution It is significant that an NGO has gained this degree of acceptance at the ASEAN governmental level such that... current international advancements in the areas of informationsharing, NHRIs and human rights education will be considered in a manner that 53 Summary of proceedings on hand with author 25 can help update and improve ASEAN regional human rights practices – both domestically and regionally We shall find that there is a dearth of information exchange that is lamented by those working in the human rights... demands 34 Chapter 3 goes deeper into how Southeast Asian discontent stemming from the bias against the developing nations in international relations has impacted on the region’s substantive human rights practices Case-studies of Indonesia, the Philippines, Thailand, Malaysia and Singapore will illustrate state behaviour where human rights clashes with national priorities In particular, an understanding... and democratic reforms This intensified the developing countries’ resentment and in Asia, culminated in the backlash seen in the Bangkok Declaration and the “Asian values” debate where tied aid was denounced and preferences for socio-economic development were strongly advocated At the Southeast Asian level, these sentiments were reiterated in no uncertain terms in the ASEAN Inter-Parliamentary Organisation... each Southeast Asian state has its own level of acceptance for international human rights The “Asian values” argument was hence only one particularly voluble manifestation of a longstanding grudge against perceived undermining of the South by the richer and more powerful states of the North The acceptance of international human rights by Southeast Asian states remains fairly ambivalent on the domestic... Plan of Action (ASCPOA) – a high-priority regional agenda to enhance relations and safeguard regional stability 45 43 For a detailed exposition of the “ASEAN Way”, see e.g Jürgen Haacke, ASEAN's diplomatic and security culture: origins, development and prospects (London: RoutledgeCurzon, 2003); and Amitav Acharya, Constructing a security community in Southeast Asia : ASEAN and the problem of regional. .. St Martin's Press, 2000), p.81-95; and Randall Peerenboom, Show Me the Money: The Dominance of Wealth in Determining Rights Performance in Asia, 15 Duke Journal of Comparative & International Law (2004) 75 31 However even if “Asian values” are debunked, Southeast Asian states remain hesitant in participating in the international human rights system more comprehensively They continue to insist on a fully . of increasing and improving human rights in Southeast Asia is as important as the goal of establishing a regional human rights mechanism. Although the advantages of having a regional system. who was involved in the negotiations for the ASEAN Charter has noted in the 7 th Workshop for an ASEAN human rights mechanism that Indonesia, Malaysia, Philippines and Thailand are enthusiastic. Filipino peoples have 19 also tried to impeach Thaksin and Philippine President Gloria Macapagal- Arroyo. 39 In Malaysia, racial equality and the freedom of religion are again being championed