FORUM-ASIA's Analysis of the ASEAN Charter

Summary

Forum-Asia welcomes the new innovations regarding references to human rights in the preamble, purposes and principles of ASEAN and the establishment of a human rights body, but is aware that these references are left very vague. Forum-Asia also notes that the old principles of non-interference and decision by consensus retain their pre-eminence, which have prevented meaningful progress on the promotion and protection of human rights at the regional intergovernmental level in the past.

Preamble

1. Human rights principles are overarching and should form the basis of legitimacy for ASEAN from which all other principles flow. This would help to ensure that policy formation and implementation within ASEAN would be guided by human rights principles. Instead, human rights is placed lower down on the list as a separate issue (as it is in articles 1 and 2 of chapter 1), and, symbolically, is placed beneath the principles of sovereignty and non-interference.

2. The opening paragraph of the Charter sets the tone, highlighting ASEAN's continued prioritisation of the stability of state-governments over the human rights of individual citizens. The opening line of the preamble refers to "WE, THE PEOPLES of the Member States of ASEAN" rather than "WE, THE PEOPLES of ASEAN".

3. In the preamble, and throughout the Charter, a number of references are made to human rights principles, which is to be welcomed. However, it remains unclear exactly what these human rights principles are, as no specific mention is made to internationally agreed norms and standards such as the Universal Declaration of Human Rights. This gives the governments of ASEAN too much leeway to interpret these standards in a way that serves their own political interests. Furthermore, there is no mention of the rights of persons belonging to minorities, or any mention of the goal of securing equality between men and women.

Chapter 1

1. It is to be welcomed that the promotion and protection of human rights and fundamental freedoms is included as an explicit purpose of ASEAN, and a principle in accordance with which member states should act. This should mean that the principle of non-interference in internal affairs is more narrowly interpreted in the future and that serious human rights violations are seen as serious breaches of the Charter, allowing for discussion at a Summit pursuant to Article 20, although it is extremely disappointing that there is no explicit provision on termination or suspension of membership.

2. Regarding the principle of non-interference, Article 2 states that ASEAN shall act in accordance with the principles of respect for the sovereignty and "non-interference in the internal affairs of ASEAN Member States". It is disappointing that the Charter does not establish that it is the responsibility of states to protect their population, and that if state governments are unable or unwilling to protect their citizens, then the responsibility shifts to ASEAN to use diplomatic, humanitarian and other methods to help protect the human rights and well-being of the civilian populations of Southeast Asia. Indeed, all ASEAN heads of state accepted this concept of the "responsibility to protect" at the UN World Summit in September 2005, but there is no mention of it in the Charter.

3. Article 1.7 qualifies that the promotion and protection of human rights must take place "with due regard to the rights and responsibilities of the Member States of ASEAN". This wording is very dangerous, because it undermines the fundamental elements of the universality and inalienability of human rights. It is not made clear what these "rights and responsibilities" of member states are, leaving the way open for governments to violate human rights in the pursuit of their self-defined "national interest".

4. There is a sense throughout the Charter that economic development is an end in itself. However, economic development should be seen as the means towards the fulfilment of all human rights for all. The fact that economic development is not treated in this way means that the Charter ignores the more marginalised people of ASEAN who have been denied their human rights. This can be seen in Article 1.5, which talks of a region which facilitates the "movement of business persons, professionals, talents and labour", without any reference to the movement of other people such as asylum seekers fleeing persecution from within their own country.

5. Article 1.13 states that one of the purposes of ASEAN is "to promote a people-oriented ASEAN", yet there is no indication as to how this will be realised in terms of mechanisms through which citizens can engage with the intergovernmental body. It is then difficult to see how ASEAN will move away from its elitist way of working and engage with the people in decision making and policy formulation.

Chapter 4

1. It is to be welcomed that the establishment of a human rights body is included in the Charter, which commits all member states to its eventual creation. However, there are no further details included regarding the setting up of the body and its roles and responsibilities. For example, there is no commitment to including the fundamental elements of a credible and effective human rights body, such as the appointment of independent experts to conduct investigations into the human rights situation within member states (including the investigation of individual complaints received from citizens of ASEAN), with access to all necessary people and locations to conduct these investigations, from which recommendations are then made. It is therefore vital that civil society lobby ASEAN to develop meaningful mechanisms.

2. The Charter mentions that the body will act "in conformity with the purposes and principles of the ASEAN Charter"; principles which include "non-interference in the internal affairs of ASEAN Member States". It should be noted that strict adherence to this principle will undermine the ability of a human rights body to protect the human rights of the people of Southeast Asia when national governments fail in their duties and responsibilities. There is, then, every danger that the ASEAN human rights body will have no power to improve the human rights situation on the ground in Southeast Asia, and will become nothing more than an irrelevant talking shop made up of high ranking government officials. There is also no mention of any timeframe for the establishment of this body, leaving the way open for certain members of ASEAN to stall its creation for many years to come.

3. In outlining the main decision making organs within ASEAN, there is no mention of engagement with citizens and civil society (except in the context of the periphery ASEAN Foundation), or the means by which citizens and civil society can influence decisions and processes of ASEAN.

4. It is hoped that the establishment of the posts of ASEAN Ambassadors will provide additional opportunities for civil society to communicate their views and concerns to ASEAN. However, it is noted with concern that no mention of such a channel of communication is made.

5. It is noted that the Secretary-General of ASEAN will be empowered to monitor compliance with ASEAN agreements and report breaches to the Summit. It is hoped that the Secretary-General designate, Mr. Surin Pitsuwan, will develop these powers to help monitor compliance with the commitment to promote and protect human rights, as contained in the purposes and principles of this Charter and other ASEAN agreements and decisions.

Chapter 5

1. Forum-Asia has been unable to obtain a copy of the annexes to the Charter, including annex 2 which supposedly lists the entities associated with ASEAN. It is hoped that annex 2 will institutionalise citizen and civil society participation with ASEAN.

Chapter 7

1. Refer to point 4 above.

2. Article 20 reaffirms the basic principle of decision by consensus. Over ASEAN's 40 year history, this principle has helped to ensure that progress on the promotion and protection of human rights within the regional organisation has been made according to the lowest common denominator. Therefore, despite some progress being made within individual member states, ASEAN itself has failed to evolve into a regional organisation that takes meaningful action on human rights issues. There is then the real possibility that the indications within the Charter that ASEAN is moving forward on human rights, such as with the establishment of an ASEAN human rights body, will come to nothing once the "decision by consensus" means of operating is applied.

Chapter 8

1. In dealing with ASEAN's role in the settlement of disputes, there is no mention of ASEAN's role in helping to resolve internal conflicts. In seeking to create a region of peace and stability that respects fundamental human rights, ASEAN cannot ignore the conflicts occurring within the boundaries of nation states. For example, with many national insurgencies in the region showing commonalities in terms of the feature of Muslim separatism, ASEAN cannot ignore the threats that these situations pose to regional peace and security. These insurgencies have every potential to become serious regional problems, due to the determination of insurgency groups and national governments alike to fulfil their prophecy of a "clash of civilisations" to serve their own political agendas. It is also here that civil society can engage with ASEAN to help tackle the root causes of these conflicts, such as human rights violations, poverty and income disparity.