Human Rights in Southeast Asia Ranyta Yusran Lund, 19 November 2018

Human Rights in ASEAN: an Overview Historical Overview of ASEAN 1 Evolution of ASEAN Perspective on Human Rights 2 Issues in the Existing ASEAN Human Rights Institutions 3

Historical Overview of ASEAN

Establishment ASEAN was established through the adoption of the Bangkok Declaration in 1967 by 5 Southeast Asian States: Indonesia, Malaysia, the Philippines, Singapore and Thailand ASEAN membership expanded to include: Brunei Darussalam (1984) Vietnam (1995) Lao People’s Democratic Republic (1997) Cambodia (1999) Myanmar (1999)

Guiding Principles (Treaty of Amity and Cooperation in Southeast Asia) Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; The right of every State to lead its national existence free from external interference, subversion or coercion; Non-interference in the internal affairs of one another; Settlement of differences or disputes by peaceful means; Renunciation of the threat or use of force; and Effective cooperation among themselves. Unwritten at that time, ASEAN also operated on the basis of consensus decision-making (together with ‘non-interference’ principle formed the ‘ASEAN Way’).

The ASEAN Charter Adopted in 2007 and entered into force in 2008 with Indonesia’s ratification. Declares ASEAN as an inter-governmental (and not supranational) organization and confers ASEAN with a legal personality. Affirms the ‘ASEAN Way’ (Para 7 Preamble, Art. 20) Includes commitments to human rights (with caveats, Art. 2) and to establish an ASEAN human rights body (Art. 14)

Evolution of ASEAN’s Perspective on Human Rights

ASEAN Early Years - Cold War Period (1967 – 1992) The absence of human rights agenda in the regional setting ASEAN’s strict adherence to the principles of sovereignty and non-intervention 1 ASEAN was not designed as a supranational body 2 There was no pressure for ASEAN to adhere to international human rights norms and standards 3

Post Cold War (1992 – 1998) Changes (1993…) Push Factors The growing prominence of human rights in Western agenda: External Pressure Internal pressure – the role of NGOs and think tanks 1993 Bangkok Declaration Commitment to establish ASEAN human rights institution Commitments to focus on women and children rights HR as an external tool directed against Asia: reserved acceptance of HR in ASEAN – International Human Rights v. Non-interference and HR thematic approach

Asian Values No exact definition Generally agreed with the universality of human rights but their applications must be left to the respective governments and correspond to their capacity In the context of SEA, Lee Kwan Yew (Singapore) and Mahathir Mohammad (Malaysia) coined the term as a response to the application of universal human rights: Emphasizing on the difference between the concept of society in the West and Asia. The latter put great value on communitarianism and duties of individuals. Development level requires Asian states to put emphasis on socio-economic priorities compared to, e.g., individual political rights. One of the main drive for the Asian economic miracle 1998 Asian economic crisis ended the Asian Values discourse and gave rise to democratization of some SEA States.

Toward the ASEAN Charter (1998 – 2006) Institutionalisation of HR in some ASEAN States Strained relationship w/ the West – Myanmar situation Democratisation of some ASEAN States The absence of ASEAN’s reservation toward human rights Commitment to include HR in the Charter – EPG Report Regional framework on women’s, children’s & migrant workers’ rights Continued dialogues w/ CSOs on the establishment of ASEAN HR institution(s)

After the ASEAN Charter (2007 – Now) 2007 ASEAN Charter: Arts. 2 (a, e, i, and l) Asian values alive and well?: universal human rights and the principle of non-interference 2010 TOR of AICHR: pts. 1(3) and 1(4) 2010 TOR of ACWC: pr. 2(1) 2012 ASEAN Human Rights Declaration: pts. 7-8

Issues in the Existing ASEAN Human Rights Institutions

ASEAN Human Rights Institutions 1. ASEAN Committee on the Implementation of ASEAN Declaration on the Promotion and Protection of the Rights of Migrant Workers (ACMW) (2007) 2. ASEAN Intergovernmental Commission on Human Rights (AICHR) (2010) 3. ASEAN Commission on the Promotion and Protection of Women and Children Rights (ACWC) (2010)

Post-Charter (2007) Post-2007, all ASEAN human rights instruments recognize universal human rights standards with caveats: respect to the principle of non-interference in the internal affairs of and due regard to the different culture, history, and socioeconomic condition in each ASEAN Member State. These caveats are stipulated in, among others: ASEAN Charter, Article 2 (a, e, i and l); AICHR TOR, point 1 (4); ACWC TOR, para. 2(1); and ASEAN Human Rights Declaration, points 7-8.

ASEAN Human Rights Declaration (Caveat) ADHR General Principle … 7. All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.

Other Human Rights Institutions in Southeast Asia National Human Rights Institutions (track 3) Civil Society Organisations Cambodia Indonesia Malaysia Philippines Myanmar Thailand Southeast Asia NHRI Forum Art. 16 ASEAN charter Track 2 CSO: ASEAN ISIS network Track 3 CSOs (e.g.): Working Group for an ASEAN Human Rights Mechanism Other local, regional, and int’l CSOs

AHRD: Implementation & Compliance Questions Rights under AHRD Is the AHRD intended to reflect regional human rights values? What is the prospect of an ASEAN human rights convention in 2015? No provisions on implementation No provisions on compliance monitoring

Human Rights Institutions in ASEAN & Southeast Asia: Interaction & Coordination? AICHR Local & Regional Coalition of NHRIs ACWC ASEAN HR Mechanism? Promotion (and Protection) of HR in Southeast Asia Int’l, Regional, & Local CSOs ACMW

Action – Regional Human Rights Situations Women’s & Children’s Rights Violence Exploitation Trafficking HR situations allegedly happened in an AMS jurisdiction Individual State approach No mentioning in any of ASEAN’s forums AICHR – constructive engagement? No Regional Action Regional Action Selective in addressing regional HR situations Migrant Workers Smuggling & TIP Violence & exploitation undocumented migrants

But, the discourse may be improving… Adoption of the ASEAN Convention against Trafficking in Persons, Especially in Women and Children (2015) and its entry into force in 2017. For the first time, ASEAN adopted a human rights treaty without the caveats related to the principle of non-interference in the internal affairs of and due regard to the different culture, history, and socioeconomic condition in each ASEAN member state. The Rohingyas situation Indonesia and Malaysia are pushing ASEAN to table the Rohingya situation on the agenda At the conclusion of an ASEAN meeting in New York in September 2017, Malaysia “disassociated itself from the ASEAN Chairman’s statement” concerning the violence in Rakhine state, calling the statement a misrepresentation of the “reality of the situation”. AICHR representatives broke ranks in April 2018 and called for a regional approach to the persecution of the Rohingyas

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