Human Rights After Seventy Years: The View from the South

UDHR has been the source of the high standard of moral conduct for the states to respect, protect and fulfil human rights. But as Roland Burke (2010) noted that initially its drafters, mainly from the West refused the universal character of human rights and preferred to include a ‘colonial clause'. They argued that the ‘Western-based' human rights norms were inappropriate for the ‘backward' local inhabitants. In 1947, the American Anthropological Association (AAA) released a statement denouncing the process of standardising human rights by any single culture or by the aspirations of any single people.

Universality was also discussed during the 1955 Asia-Africa Conference (hereafter the Conference) in Bandung, Indonesia. The newly-decolonised states welcomed universality character human rights as a promise of equality. Because of this, they launched the movement of global human rights agenda. However, they soon realised that accepting universal human rights could also mean permitting the powerful to sustain their control over other countries. Their position shifted from embracing universality to resisting it.

The resistance to the universality of human rights was also reflected in the VDPA as the outcome document of the World Conference on Human Rights held in Vienna, Austria. The conflicting part is whether the emphasis should be placed on the universality of human rights or the particularities of the regional context.

VDPA prioritised the former but taking into account regional particularities, whereas the Bangkok Declaration (1993) favours the latter. The preference of the Bangkok Declaration was invalidated by 110 civil society organisations (CSOs) from Asia and Pacific (Our Voice: Bangkok NGO Declaration on Human Rights 1993).

In the 26th meeting, the ASEAN Foreign Ministers' reaffirmed ASEAN's commitment to respect all human rights as set out in the VDPA. However, they also stressed that the promotion of human rights should by considering specific cultural, social, economic and political circumstances and cannot be politicised (ASEAN 1993: Para 16). In addition, ASEAN Foreign Ministers called for the respect to national sovereignty, territorial integrity and non-interference in the internal affairs of states. And they also committed establish a regional mechanism on human rights.

This historical overview shaped ASEAN's position on human rights, that can be summarised into six points. First is that human rights are universal, inter-related, and based on equality and indivisibility of civil, political, economic, social and cultural rights and second is that the promotion of human rights must take into account the specific cultural, social, economic and political situation, and in the context of development and international cooperation.

The third is human rights should not be politicised, including to be used as a yardstick in trade, investment finance cooperation and development assistance, while fourth is the promotion and protection of human rights must respect the national sovereignty, territorial integrity and non-interference in the internal affairs of states. Fifth, human rights are the responsibility of national governments and sixth, ASEAN to establish a regional human rights mechanism.

Some ASEAN officials defended that this position on human rights was not developed in a vacuum. It was rather shaped by the ASEAN member states' past encounter with foreign nations' intervention in their domestic affairs. They also perceived that the powerful nations would use human rights as their tools to impose their political agenda in ASEAN countries.

The ASEAN's engagement with human rights did not stop there. In 1997, ASEAN adopted the Hanoi Plan of Action, which include information exchange on human rights among ASEAN Countries. It further re-stated in the 2004 Vientiane Actions Plan. Furthermore, with the adoption of the ASEAN Charter in 2007, human rights found a legal basis as the constitutional instrument. In 2009, the ASEAN Intergovernmental Commission on Human Rights (AICHR) was launched and followed by the adoption of the ASEAN Human Rights Declaration (AHRD) in 2012.

ASEAN's Position on Human Rights and AHRD

AHRD was introduced by the ASEAN Leaders on 18 November 2012 during the 21st ASEAN Summit in Phnom Penh, Cambodia with the Phnom Penh Statement on the Adoption of the ASEAN Human Rights Declaration (hereafter Phnom Penh Statement). From the outset, AHRD is a political instrument in nature and not a legal text entailing binding obligations for ASEAN member states. Thus, AHRD is a solicitation text that set the common regional standards in the form of legal recommendation which, however, demands a certain level of compliance.

AHRD consists of an extensive list of civil and political rights; economic, social and cultural rights; right to development; right to peace and cooperation in the promotion and protection of human rights. AHRD includes specific mention on the protection of persons with HIV/AIDS, people's participation and emphasis on the protection of the rights of vulnerable and marginalised groups.

Nevertheless, AHRD raised many controversies. Activists and scholars criticised AHRD had been comprised by including the condition that the realisation of human rights to be balanced between the duties and responsibilities of the persons as stated in Article 6. It gave the impression that the enjoyment of human rights depends on the performance of the individual of being a good citizen. Besides, Article 6 also emphasised that the ultimate responsibility to protect human rights is the national, and not regional like ASEAN, governance.

Furthermore, Article 7 requires the realisation of human rights to be harmonised with national and regional context. It is worth to note that the first sentence of the AHRD Article 7 emulated the articulation of VDPA Article 5 to acknowledge that all human rights are universal, indivisible, interdependent and interrelated.

However, Article 8 subjected the realisation of human rights on some limitations: national security, public order, public health, public safety and public morality. AHRD requires that the promotion and protection of human rights observe the principles of the ASEAN Charter, which include the non-interference and the respect for national sovereignty. Article 8 has the potential to undermine its acknowledgement of the non-derogable.

At the same time, there is a sense that AHRD seemed to be seen as a source of disputes among member states. Its Article 9 stated that the realisation of human rights should uphold non-confrontational, avoidance of double standards and politicisation. Also, AHRD made no reference to the prohibition against enforced disappearance, the right to freedom from forced labour or the freedom to manifest and change one's religion.

Carefully look at the content, I suggest four characteristics of rights of AHRD: preferred, conditioned, silenced and omitted rights.

Preferred Rights

The preferred rights are the provisions that were selected with the aim of providing added values to the AHRD. The rights that are categorised as preferred rights are the right of development and right to peace. Right to development was endorsed in VDPA and had been high as ASEAN agenda. Right to development in ASEAN has been seen as inalienable human rights, which therefore human rights cannot be used as conditionality to development assistance and international cooperation (ASEAN 1993: Para 17), whereas VDPA emphasis that the right to development that centred on a human being as the central subject of development.

The Article 35 of AHRD suggested that right to development is composed of interrelated economic, social, cultural and political strands in the sense that it should be seen as a process and an end in fulfilling human right. AHRD referred to a situation in which lack of development cannot be used to justify the violations of internationally recognised human rights. AHRD acknowledges that a human rights culture is indispensable in fostering economic growth.

Another ASEAN's preferred right is the right to peace (Article 38). This right envisages duties of the member states at domestic and regional levels to ensure that the populations enjoy peace, security and stability, and between them, they must promote friendship and cooperation and bring harmony to the region. The inclusion of the right to peace in AHRD was suggested by Laos, arguing that people in ASEAN deserve to live in a lasting peace through the promotion of peace culture, rejecting and illegalising aggression, wars, and other traditional and non-traditional threats to peace in the region.

Even though the right to development and right to peace were vaguely conceptualised, the two had been claimed as the AHRD's added values. In the 2nd Regional Consultation of AICHR on the AHRD with CSOs on 12 September 2012 (hereafter the 2nd Regional Consultation), the representative from Laos asserted that AHRD should not copy the UDHR but should instead reflect the diversities in ASEAN and added values human rights discourses.

Conditioned Rights

Conditioned rights are the provisions that make the rights guaranteed subject to domestic law, or at the discretion of national authorities or exception can be done at the national level. For instance, the right to life is guaranteed in AHRD, but death penalty can also be allowed as long as it is prescribed by law. Article 11 of AHRD stated: "Every person has an inherent right to life which shall be protected by law. No person shall be deprived of life save in accordance with law" (ASEAN 2012: 5). Other examples are the right to found a family and divorce (Article 19); the right to participate in the government (Article 25.1); the right to vote (Article 25.2); and right to form trade unions (Article 27.2). These clauses are called ‘clawback' articles.

Having ‘clawback' clauses in the AHRD would mean that the declaration implies that if there is a conflict between international standards and regional or national policies or practices, the latter should prevail. It is interesting that AHRD at the same time counterbalance it with the Article 40 which stated that no State, group or person could invoke them to perform acts aimed at the destruction of its rights and freedoms and/or the international human rights instruments ratified by the Member States.

Silenced Rights

Silenced rights are the provisions that were assumed to be included in AHRD by clustering them into a specific category like "other status" in the Article 2 of AHRD. Almost all Articles in AHRD started with ‘all persons' assuming the phrase applicable to all groups, including LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex and Queer persons), indigenous people and minorities. But it does not work that way.

In the 2nd Regional Consultation (12 September 2012), the AICHR Representative from Malaysia said that the term LBGTIQ or sexual identity were some of the issues that which Malaysia, Brunei and Singapore cannot accept in the declaration. He added further that any reference to the rights of LGBT would pose a problem in the context of Malaysia, as there are two parallel laws in Malaysia: Federal and Sharia Law, and the latter will never permit the inclusion of LGBT rights (ASEAN Secretariat Summary Record 2013: Para. 11).[1]

Indonesia's AICHR Representative conceded that the discussion regarding the rights of LGBTIQ persons and indigenous peoples often became ‘intense' within the AICHR with differing levels of sensitivity among the member states.[2] As for the indigenous people, Myanmar and Laos Representatives explained that because not all ASEAN member states have indigenous people, therefore the groups cannot be included in AHRD.[3] The self-determination dimension in the right of indigenous people is often used as an argument to reject the inclusion of this right because some member states perceive it to lead to separatisms.^[4]

Omitted Rights

The omitted rights are the provisions that removed from AHRD due to various concerns of the member states. The freedom of association was not included in AHRD because each member states have a different position (or lack of it) about trade union or the operation of non-governmental organisations (NGOs).[5] The non-guarantee of freedom of association is in contradictory with the participatory agenda of ASEAN as a people-centred association. In fact, most of the ASEAN member states guaranteed freedom of association and social organisations in their constitutions.

The Global-Local Interaction in Shaping Regional Human Rights Framework in ASEAN

The end product of the AHRD is a result of the ASEAN member states contestation and resistance to the global standards on human rights by taking in national/regional particularities. I term this phenomenon as human rights duality, which refers to the reconciliation between the international human rights regime with regional/national particularities.

In the 2nd Regional Consultation, Laos defended this duality approach by arguing that the national and regional particularities will not undermine the universality character of human rights. In fact, it will facilitate and further enhance the implementation of human rights in ASEAN. He also argued that ASEAN needs to challenge two misconceptions on human rights that originated from the West tradition, which are (a) the implementation of human rights relies on law only and (b) the international human rights law requires all to comply with the institution that was established by the West.

The implication of these two conceptions, according to him, lead to false understanding that human rights could only be achieved when the local culture and social institutions are pushed aside. During the 2nd Regional Consultation, Laos representative cited the Receptor Approach to human rights as the basis of his position. Receptor approach assumed that human rights could be implemented more fully through local institutions. It appreciates the cultural legitimacy of international human rights standards.

The debate during the drafting of AHRD was based on two assumptions on the universality of human rights. First is that culture and home-grown remedies are in contradiction with the universality of human rights and second, universality means uniformity. Some member states of ASEAN resisted the uniformity of human rights in the region and believed that cultural legitimacy will make the implementation of human rights more effectively.

With AHRD, ASEAN member states wanted signal that international regime of human rights can co-exist with regional particularities. The that this duality approach improves the quality of respect, protect and fulfilment of the human rights to the population in ASEAN, however, is still unclear. While AHRD guarantees most of the rights, it also, at the same time, protects the states from being accused of committing abuse and violation on human rights.

It is not exaggerated to say that the issues such as decolonisation, sovereignty, national and regional particularities and development are still the primary concerns among ASEAN member states on human rights. These concerns, I believe, are not unique only in ASEAN. It can be found in all part of the world.

More than ever, the universality concept of human rights deserves more in-depth discussion, especially on how it can be more inclusive and be more substantive universality. After seventy years of UDHR, exploring multiple understanding on the universality of human rights, perhaps, is the idea worth to pursue further.