14 mai 2012

This past week in Bangkok, the ASEAN Inter-government Commission on Human Rights (AICHR) discussed one of the most important documents drafted by ASEAN since the regional grouping adopted the ASEAN Charter five years ago. The ASEAN Human Rights Declaration is supposed to serve as the "road-map for regional human rights development" in ASEAN for years to come - according to ASEAN Secretary-General Surin Pitsuwan.

Has ASEAN finally transformed itself from the so-called "club of dictators" famous for its closed-door meetings to a rights-respecting grouping? Shouldn't this be cause for a celebration?

Sorry - not so fast - think again. When the AICHR meeting ends, don't expect to see a copy of the ASEAN Human Rights Declaration, or assume that any NGOs will have been consulted. Don't presume to get a meaningful update of what happened or imagine that external inputs were welcomed. The old Thai saying that "the seed doesn't fall far from the tree" explains why AICHR has followed the ASEAN penchant for secrecy in its meetings and documents. The regional human rights coalition NGO, Forum Asia, recently released its report card on the second year of AICHR - and the title of the report, "A Commission Shrouded in Secrecy" is a telling indicator. AICHR has systematically shunned engagement with the same ASEAN civil society groups that just a few years before was being feted by ASEAN Secretary-General Surin with promises of a "people's ASEAN," which he claimed was critical for the bloc to work effectively.

Since it was established, AICHR has refused to release a single document related to the drafting of the ASEAN Human Rights Declaration - including its terms of reference, the names of the drafters, and actual drafts of the declaration. Nor has AICHR met as a regional body with civil society representatives, despite repeated requests to do so. When it comes to public participation, AICHR has been nothing short of a full-blown train wreck. The peoples of ASEAN should be asking how a purported "human rights commission" can operate while continually refusing to talk to those whose rights it is supposed to protect?

The situation is bad enough that Navi Pillay, the UN High Commissioner for Human Rights, chided AICHR after meeting the commission in Bali in November 2011. She pointed out that, "the number one concern was that AICHR - as a body—is not talking to civil society. …That is a major concern to me as well. No discussion of human rights can be complete or credible without significant input from civil society and national human rights institutions." She continued, "And I can understand civil society organizations' extreme frustration that they have not even been able to contribute to the drafting of the declaration, or been adequately consulted on its contents."

But even more worrisome is the question of what is actually happening on the ASEAN Human Rights Declaration draft.

Drafting the rights declaration is one of AICHR's key mandates.

Broadly speaking, there are three possible outcomes. The ASEAN Human Rights Declaration could be developed as a document that challenges ASEAN to do more on human rights, and sets standards above existing international human rights law. Few expect that to happen. A second option is the ADHR meets international human rights standards, which would be welcome but also raise questions about why ASEAN bothered to spend so much time to create such a declaration. And the third option - which human rights defenders feel is most likely and thus are

preparing to battle against - is a declaration that falls short and therefore seeks to undermine international standards. So far, it looks like option 3 is winning out.

Difficulties in accessing information in ASEAN means regional human rights activists must be adept at digging up information. So after months of trying, civil society groups finally managed to get their hands on a copy of the draft declaration dated January 8, 2012.

Judging from that draft - since there is no other available - it appears the situation is as bad as many regional human rights advocates feared. Significant passages of the draft focus on limiting rights - rather than promoting and protecting them, with some particularly odious amendments being proposed by persistent human rights abusers Laos and Vietnam. Restrictions on rights that go well beyond what is permitted by international human rights standards and range from the impossibly vague - such as exercise of rights not going against the "general welfare of the people" or "the common interest" - to the blatantly obstructionist, such as Laos' rather defensive recommendation that realization of rights must depend on principles including "non-confrontation, avoidance of double standards and non-politicisation".

While some of these objectionable provisions may get knocked out of the final version, the ASEAN Human Rights Declaration drafters are still insisting on language that resurrects excuses of local social, cultural and religious contexts to erode human rights universality, and condition enjoyment of rights on fulfillment of duties in ways that go beyond human rights standards.

For example, problematic propositions like "creation of an environment where the peoples of ASEAN would enjoy, to the fullest possible extent, rights and freedoms within the regional context," buttress efforts by governments like Malaysia to ensure that any discussion of discrimination by sex or sexual orientation is done in line with what it terms "ASEAN Core Values" rather than decisions of the UN Human Rights Council or the expert UN Committee on Economic, Social and Cultural Rights. Sadly, with the regional human rights experts sidelined, a strategy of creating loopholes in international standards stands a reasonable chance of success, unless the international community demands AICHR permit full civil society participation in the ADHR drafting and adoption process.

A Thai Ministry of Foreign Affairs representative earlier this week wrote optimistically that the declaration "reflects the commitment of the [ASEAN] leaders to strengthening democracy and promoting and protecting human rights in accordance with internationally accepted standards."

Rather than make unsubstantiated claims, the Thai Ministry of Foreign Affairs should be rolling up its sleeves to contest those in ASEAN who still imagine that human rights is a foreign plot rather than inalienable rights guaranteed to all people.

It's not too late to change the dynamic and make the ASEAN Human Rights Declaration the fully rights-respecting agreement that it is supposed to be. The Thai government should demand that AICHR immediately postpone efforts to send the ASEAN Human Rights Declaration to the foreign ministers in June. Instead, the AICHR and the declaration drafting committee should devise a comprehensive participatory process that ensures that the views of broad-based civil society organizations representing the full range of human rights are heard and incorporated to a real declaration on rights that aims high and seeks to meet the aspirations of all of ASEAN's peoples. That would be an outcome that would worth waiting for.

Phil Robertson is the deputy Asia director at Human Rights Watch.