Unless appropriate formal and equitable engagement mechanisms are put in place, civil society will be not be in a position to effectively advocate for and ensure the protection of human rights in the region. This is the lesson to be gleaned from the adoption of the ASEAN Human Rights Declaration (AHRD) yesterday (November 18) during the ASEAN Summit in Phnom Penh, Cambodia.

The inability of civil society organisations (CSOs) to meaningfully engage with members of ASEAN over the establishment of institutional and normative human rights frameworks to date explains the limited effectiveness of their advocacy in securing a real protection mechanism for the people of ASEAN.

Much of the discussion emerging from yesterday’s release of AHRD has focused on the criticism by CSOs over the lack of adherence to international human rights standards and the rejoinder by ASEAN governmental representative that the tone of the current AHRD is what is politically feasible now within the regional grouping. But the root problem remains the lack of access of CSOs to the inter-governmental process that has crafted institutional mechanisms and the AHRD.

Over the last two years, CSOs seeking to advance the protection of human rights in the nascent ASEAN human rights regime have been confronted with a regional association and member governments that are still deeply wedded to the principle of non-interference and the primacy of national laws.

Beginning with the ASEAN Charter in 2008, which promised the establishment of a human rights body, CSOs have been pressuring member governments to adopt a mechanism that would speak to international standards and include a protection mechanism. At each step towards formalising a regional mechanism, for example in 2009 in the run up to the drafting of the Terms of Reference for the AICHR and now in 2012 in the drafting of AHRD, CSOs have tried their level best to engage with ASEAN but in vain.

On the adoption of the ADHR in Phnom Penh on November 18, CSO criticisms of the declaration continued unabated. While Singapore’s Representative to the AICHR, Chang Heng Chee, hailed the advent of the “peer-review” mechanism and the ADHR as “the best that could be done” in the social and political context, the CSO exclusion from the process of crafting a human rights regime remains a blatant fact.

Some 60 CSOs wrote to ASEAN leaders requesting the postponement of the signing given serious flaws in the document. Echoing strongly their comments, the UN High Commissioner for Human Rights, Navi Pillay, also called for the same and has stated: “I am surprised and disappointed that the draft declaration has not been made public and that civil society has not been consulted in the drafting of the document.”

Poignant criticisms have pointed to AHRD failings to meet existing international standards and the risks of creating a sub-standard level of rights protection in the region.

Pillay has cited as an example the provision on the right to life which, she said, should not be contingent on domestic laws that can be used to justify state-sponsored violence. Further, ASEAN governments want the enjoyment of rights to be balanced with the “performance of duties” and be subject to “national and regional contexts”.

Rights in the region therefore stand to be restricted on a wide range of grounds, including “national security” and “public morality”. The declaration is further criticised for having too many loopholes that may permit states to bypass international standards. Even Surin Pitsuwan, speaking at the ASEAN Summit in Phnom Penh, admitted: “This document can be improved upon.”

On such substantive matters critical to the well-being of all ASEAN citizens, CSOs have been confronted with ASEAN member-states’ strategy of selective and limited engagement with CSOs to date over the establishment of a human rights regime in the region. The entire project of crafting a human rights regime is pursued purely as an inter-governmental activity.

With no institutionalised mechanism for consultation, CSO engagement has only been accommodated on a piece-meal basis and only because of the tireless advocacy, persistence and pressure by regional CSOs. This state of affairs has neutralised CSOs’ ability to advocate successfully for the protection of human rights in the region.

Such a purely inter-governmental approach is entirely out of step with how inter-governmental organisations such as the UN, the EU and the OAS conduct their own inter-governmental activities. In those mechanisms civil society is mainstreamed into the human rights processes.

In addition to concern over core substantive dilemmas — the lack of real protection of human rights and the failure to meet international standards — the real subtext is the fact that civil society has not been mainstreamed as it should be. Lack of such mainstreaming undermines ASEAN’s own call for a more people-centred community.

Civil society organisations, which have historically played a vital role in advancing the protection of human rights globally, and the media (traditional and new), must continue and intensify their push for more transparency in the ASEAN human rights regime, for the respect of international commitments already binding upon ASEAN states, for the respect for universal standards under the UN Charter and the Universal Declaration of Human Rights and for real protection of fundamental rights.

When it comes to the development of human rights in the region, the lack of genuine consultation with CSOs by ASEAN’s member governments reflects the marginalisation of one of the important sectors within the member states. A formal consultation mechanism is vital to the protection of human rights in the region and to the creation of a more people-centred ASEAN.

*Dr James Gomez and Dr Robin Ramcharan are authors of the paper “The Protection of Human Rights in Southeast Asia: Improving the Effectiveness of Civil Society Advocacy”.