ASEAN’s evolving human rights regime is shaped by three competing discourses. These are the human rights policies of national governments, advocacy positions promoted by both global and local civil society and the call for alignment with international human rights standards and procedures by inter-governmental organizations.
In this contest, the national governmental discourse has significantly impacted the tone of democracy and human rights now etched onto key documents such as the ASEAN Charter, ASEAN Inter-Governmental Commission of Human Rights (AICHR) Terms of Reference (TOR) and ASEAN Human Rights Declaration (AHRD). It continues to do so as the human rights regime evolves.
The result thus far, is a rather weak “protection” regime within ASEAN’s human rights framework.
In Southeast Asia, these three discourses offer two approaches to protection. First is “promotion,” based on the traditional, consensual “ASEAN way” – this is the discourse of national governments. Second is “protection,” based on quasi-judicial processes that also involve civil society and that engage domestic judicial authorities in seeking redress and remedies for victims of violations of rights – this is the discourse of local and global civil society and inter-governmental organizations.
The current human rights regime in Southeast Asia evolved following the 1993 Vienna Conference at which all States reaffirmed the universality of human rights. Concerted grassroots and international pressure contributed to moving Southeast Asian governments toward the current framework. Throughout the process, from 1993 to the present, these “universal” standards have found their way, albeit reluctantly, into ASEAN’s key documents pertaining to democracy and human rights.
Official documents and statements from ASEAN, its member states, the AICHR, civil society actors and documents submitted to the Universal Periodic Review, Office of the High Commission of Human Rights (OHCHR) and the United Nations reveal a tension between “promotion” and “protection.”
A review of the ASEAN Charter, AICHR’s TOR and the AHRD shows that since 1993 the development of a ‘protection” regime within AICHR has been influenced by the “ASEAN way” and ASEAN diplomatic culture that can be ascertained through some key practices.
One, a majority of AICHR representatives appear to act on behalf of their governments as opposed to advancing a credible peer review human rights system. Moreover, some have not had the requisite training.
Two, civil society organizations advocating for a robust protection system were consulted minimally on the margins and essentially excluded from the different formative stages of the ASEAN human rights regime.
Three, while ASEAN states engage with international human rights monitoring systems, however grudgingly, their adherence to universal standards leaves a lot to be desired.
Finally, regime security and power preservation take precedence over human rights for the region’s incumbent political elites.
The three discourses highlighted above represent Southeast Asia’s engagement with global human rights discourse.
The discourse from national governments as it pertains to human rights protection has resulted in a watered down version of key democracy and human rights related instruments in ASEAN when compared with other regions.
Overall these competing discourses reveal Southeast Asia’s slow progress towards a more liberal democratic form of governance and rule of law as enshrined in international human rights standards.
Nevertheless, given that the AHRD and AICHR are “home-grown,” ASEAN governments cannot in future claim that human rights are an external imposition.
Analysts of the development of regional human right mechanisms need to take note of these discourses, in particular the counter-discourse from national governments, and their impact on the implementation of a protection mechanism within the regional human rights framework.
Drs. James Gomez and Robin Ramcharan are co-authors of “Evaluating Competing ‘Democratic’ Discourses: The Impact on Human Rights Protection in Southeast Asia” in the Journal of Current Southeast Asian Affairs, (Vol 33, No. 3). Download the document here.