What are some of the criticisms of ASEAN

ASEAN Declaration of Human Rights

dated November 18, 2012

Contract text: English

The Southeast Asian group of states, ASEAN, adopted its own ASEAN Human Rights Declaration (AHRD) on the occasion of its 21st summit in Phnom Penh in November 2012. The individual formulations of the ASEAN declaration were fought over until the very end. The UN High Commissioner for Human Rights (UNHCHR) had tried in vain to work towards postponing the adoption of the ASEAN declaration.

The heads of state of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam signed the legally non-binding declaration on November 18, 2012 in a solemn ceremony.

The present declaration text is to be understood as a compromise between different interests and intentions. However, the AHRD contains some highly controversial passages.

Criticism of undercutting international standards

Both weighty UN bodies and many local and regional NGOs, especially women's organizations, have criticized the adoption of the ASEAN Declaration with unusually harsh criticism. Because the text contains some loopholes, especially in the general provisions, which are obviously suitable for undermining international human rights standards.

Criticism of the UN special rapporteurs

The Coordination Committee of the UN Special Rapporteurs pointed out the following points in an open letter dated November 16, 2012:

  • Fundamental rights such as the right to life must not, as provided for in Art. 11 AHRD, be relativized with a blanket exception clause “in accordance with national law”.
  • Article 6 of the AHRD states that the claim to human rights and fundamental freedoms must be balanced with the exercise of corresponding duties that every person has towards other people, the (local) community and society. This view is alien to international human rights and gives governments too much room for maneuver to restrict human rights in an arbitrary, disproportionate and unnecessary way.
  • The latter also applies to some of the reasons given in the AHRD for the legitimate restriction of human rights, such as “public morality”, “public order”, “national security” (cf. Art. 8 AHRD). In this regard, the UN experts miss a mention of the usual conditions for the legitimate restriction of human rights, namely a legal basis and the necessity and proportionality. In addition, the AHRD neither stipulates that the restrictions must not affect the core content of a human right, nor that there are some types of human rights (e.g. the ban on torture) that cannot be restricted at all.
  • The special rapporteurs also criticize the fact that the AHRD makes the right of asylum subject to national law and makes no reference to the non-refoulement principle (cf. Art. 16 AHRD).

These fundamental criticisms, which were publicly expressed shortly before the decisive ASEAN summit, obviously had no impact on the final text of the AHRD.

Criticism of the UN High Commissioner

In the run-up to adoption, UN High Commissioner Navi Pillay publicly urged ASEAN to better involve civil society and other actors in the process and to refrain from any possible restrictions on human rights that are not in line with international law. After the adoption of the AHRD, Pillay noted with satisfaction that the heads of state had included a passage at the last minute that emphasized compliance with the existing human rights obligations of the states involved (cf. Art. 40 AHRD); but she adds that in the future the aim must be to prevent ASEAN from pouring such provisions from the AHRD into binding conventions that are incompatible with international law.

Criticism from non-governmental organizations

Many non-governmental organizations reacted with disappointment and harsh criticism to the adoption of the AHRD. In a media release widely supported by international and local NGOs, Human Rights Watch calls the document a declaration by the government powers disguised as a human rights declaration. The influential human rights organization believes that the AHRD will even provide those in power with standard justifications for human rights violations.

In addition to the points of criticism already mentioned, a regional association of women’s organizations refers to Article 7 AHRD, which states that although human rights are universal and indivisible, their implementation must also be considered in a regional and national context, whereby political, economic, legal, social, cultural, historical and religious peculiarities are to be observed. This wording allows the governments to continue to support patriarchal traditions in cases of conflict, while still being able to refer to the ASEAN Declaration of Human Rights.

In short: human rights organizations active in the region flatly reject the AHRD. The collective NGO statement published by Human Rights Watch contains an explicit refusal to refer to the AHRD in future in practical human rights work.

Other voices

Judging by these clearly negative NGO reactions, the AHRD must already be viewed as a failure. Nevertheless, the AHRD also contains some approaches that appear innovative at first glance, for example in the chapters on social rights, the right to development and in Article 38 on the right to peace. Whether one or the other formulation is to be classified as relevant for the further international legal development will certainly be discussed in more depth in academic circles.

There are voices that try to bring the positive sides of the AHRD to the fore in practice, especially for international politics: as a compromise between governments that are deeply divided in their assessment of human rights. In this sense, the AHRD is recognized as the lowest common denominator of the ASEAN countries in the field of human rights.

Background to the creation of the ASEAN declaration

In a contribution by the Konrad Adenauer Foundation, the background to the emergence of the ASEAN Declaration of Human Rights is shown. This makes it clear that the result is to be understood not least as a consequence of the different human rights policy positions of the participating states. The small common denominator also explains the secrecy and lack of transparency in the creation process.