H.E. Ong Keng Yong
Secretary General
The ASEAN Secretariat
70A, Jalan Sisingamangaraja
Jakarta 12110
Indonesia

Re: ASEAN Charter

Dear Secretary General:

Congratulations on the impending signing of the new ASEAN Charter at the 13th ASEAN Summit in Singapore from November 18-22. We are hopeful that the long-awaited signing of the Charter may lead to a commitment among ASEAN members to protect human rights. We especially welcome the provisions of the Charter pledging all signatories to abide by international law and enacting a regional human rights mechanism. We urge you and other ASEAN Foreign Ministers to establish specific deadlines for implementing a binding human rights mechanism as part of the new Charter.

We also urge ASEAN members to use the opportunity of signing the Charter to pressure the military junta of Burma to end abuses and to embark on serious, structured, and time-bound negotiations with opposition parties and ethnic groups to create democratic, civilian rule as soon as possible. We welcome ASEAN's strong statement delivered on September 27 in New York on the crackdown upon peaceful protestors that "expressed their revulsion... over reports that the demonstrations in Myanmar are being suppressed by violent force." It is now time to turn these words into action.

Human Rights and the New Charter
One of the purposes of ASEAN set out in the draft Charter is to strengthen democracy, enhance good governance and the rule of law and to protect and promote human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN. Another purpose is to ensure that the peoples and Member States of ASEAN live in peace in a just, democratic, and harmonious environment. Substantively for ASEAN to achieve these purposes, the draft Charter establishes a series of principles to which each State must adhere to. These include respect for fundamental freedoms, the promotion and protection of human rights and social justice as well as the renunciation of aggression and of the threat or use of force or any actions in any manner inconsistent with international law, and upholding international law.

You have stated that the Charter will make "ASEAN a more rules-based organization and... will put in place a system of compliance monitoring and, most importantly, a system of compulsory dispute settlement for noncompliance that will apply to all ASEAN agreements." We welcome this vision, yet are concerned that there is no clear mechanism to take action against states, such as Burma, that simply ignore the Charter's human rights provisions.

The Charter lacks any procedures to implement its principles and contains weak compliance provisions. Violations of the Charter's principles are simply referred to the next ASEAN summit for discussion, suggesting a slow deliberation process that will become entwined in politics and national vetoes.

We are also concerned that the terms of reference for the proposed regional human rights body in the Charter is to be decided at a separate meeting of foreign ministers, a process which could drag on for years given that ASEAN has been deliberating on a regional human rights mechanism since 1993.

While we see the Charter as a step in the right direction, much more is needed if the Charter's aims of protecting and promoting human rights are to be achieved. The Charter's list of principles are quite vague, and only commit ASEAN Member States very broadly to do what they are already bound to do under international law and the UN Charter. The ASEAN Charter sets out the principles; what is needed is fast action to create a mechanism to turn these principles into reality for ASEAN's people.

ASEAN should reach agreement on a timeframe for an independent and transparent mechanism to enforce the Charter's commitments by the time it enters into force, which is 30 days after the Charter is signed.

For the human rights provisions of the new Charter to function effectively, ASEAN should:

  • Ask all Member States to sign and ratify the core human rights conventions such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture, the Convention on the Elimination of all forms of Racial Discrimination, the Convention Against Enforced Disappearances and their optional Protocols where they exist;
  • Adopt regional human rights institutions, with committees assigned to address specific issues such as those protected under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;
  • Review the human rights records of all Member States on a regular basis.

Burma
On July 24 2007, you told reporters that the Charter will help ASEAN's relationship with Burma, adding that it would "stress responsibility and obligation of the membership," compared to current discussions on compliance which are "more persuasive, more informal." The draft Charter states that the ASEAN Summit shall address emergency situations affecting ASEAN by taking appropriate action. We strongly urge ASEAN Member States to act on the Charter by addressing the emergency situation is Burma as a test case.

Indeed, recent events in Burma show the need for a strong Charter to deal with grave human rights violations, such as the killings of monks and peaceful protestors and the detention of thousands. ASEAN's welcome expression of "revulsion" should act as a guide for its future dealings with the Burmese State Peace and Development Council (SPDC). Since its admission in 1997, Burma has continuously embarrassed ASEAN by breaking one pledge after another to make progress on national reconciliation and the transition to a civilian government. In the absence of a functional regional human rights mechanism, when Burma signs the ASEAN Charter at this Summit, we urge all ASEAN Member states to take immediate action against Burma for its violation of human rights. We call on ASEAN to do more to urgently protect the rights of Burmese people as citizens of ASEAN.

In particular, we urge you to convey a strong message to the Burmese junta on behalf of ASEAN to outline the steps the SPDC must take immediately, including:

  • Release all political detainees and prisoners and account for all "disappeared" persons;
  • Embark on serious, structured, and time-bound negotiations with opposition parties and ethnic groups to create democratic, civilian rule as soon as possible;
  • Cease all violations of international humanitarian law in the conflict with ethnic minorities;
  • Cease restrictions on humanitarian aid and the activities of UN agencies and international NGOs in Burma.

In addition, ASEAN itself should take firm action to encourage needed reforms in Burma and improve human rights protection, including as follows:

  • Support UN Security Council resolutions calling for sanctions or other collective action to address the crisis in Burma;
  • In the absence of Security Council-imposed sanctions, ASEAN (along with its member countries) should act to impose targeted sanctions to encourage an end to ongoing repression:
  • Ban new investment and prohibit the importation of select products, such as gems and timber, from Burma;
  • Prohibit business partnerships with or payments to entities owned or controlled by the Burmese military, or whose revenues are largely used to finance military operations (as opposed to social spending).
  • Implement an ASEAN arms embargo on Burma;
  • Support the work of the UN Special Rapporteur on the situation of human rights in Burma to investigate human rights abuses committed during and after the August and September protests;
  • In line with the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers ensure the protection and fundamental rights of migrant workers from Burma, particularly in Thailand, Malaysia, and Singapore.

For too long, ASEAN Summits have been viewed merely as "talk shops" at which little is done substantively to resolve the urgent human rights and other issues affecting ASEAN's people.

ASEAN now has a real opportunity to set an example for other regions of the world on how a human rights mechanism can function effectively to protect human rights. We would hope ASEAN can provide a model in implementing an effective regional human rights mechanism.

Yours sincerely,

Brad Adams
Executive Director
Asia Division

Cc: Foreign Ministers, ASEAN Member States