The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human Rights in Southeast Asia

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THE ASEAN INTERGOVERNMENTAL COMMISSION ON HUMAN RIGHTS

This assessment of the progress in Southeast Asia on human rights begins in the wake of the ‘Asian values’ debate and culminates in the formal regional institutionalisation of the Association of Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights (AICHR). The book examines the arduous negotiation of AICHR, the evolving relationship between ASEAN states and the international human rights system, and the historical and experiential reasons for hesitancy. The book concludes with a discussion of how the evolving right to development impacts upon AICHR and international human rights in general, and how their preference for economic, social, and development rights can help ASEAN states shape the debate. tan hsien-li is Research Fellow and Executive Director of the ‘ASEAN Integration through Law’ project at the Centre for International Law, National University of Singapore, which investigates the role of law and the rule of law in Asian legal integration.

THE A SEAN INTERGOVERNMENTAL COMMISSION ON HUMAN RIGHTS Institutionalising Human Rights in Southeast Asia

TAN HSIEN-LI

c a m b r i d g e u n i v e r s i t y p re s s Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa˜o Paulo, Delhi, Tokyo, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107004498 # Tan Hsien-Li 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloging-in-Publication Data Tan, Hsien-Li, 1979– The ASEAN Intergovernmental Commission on Human Rights : institutionalising human rights in Southeast Asia / Hsien-Li Tan. p. cm. ISBN 978-1-107-00449-8 (Hardback) 1. ASEAN. Intergovernmental Commission on Human Rights. 2. Human rights–Southeast Asia. I. Title. KNC572.T36 2011 341.40 80959–dc22 2011001237 ISBN 978-1-107-00449-8 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For my parents

CONTENTS

List of tables Preface xi 1

page ix

Charting the human rights institutionalisation process in Southeast Asia 1 Whither a regional or sub-regional human rights system for Asia? The framework of human rights in ASEAN 5 Chapter outlines 12

2

1

Enough of ‘Asian values’: roots of the ASEAN states’ reticence towards human rights 24 Introduction 24 Pre-modern foundations of international human rights: the conspicuous exclusion of coloured peoples 28 The advent of modern international human rights: the UN Charter and Bill of Rights 32 Developments after the Bill of Rights: from the middle of the Cold War to the twenty-first century 42 Where was Asia in the making of international human rights law? Possible roots of ASEAN states’ aversion to human rights 60 Conclusion 69

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Self-determination and democracy: the human rights experiences of five ASEAN states 72 Introduction 72 Case-studies of Indonesia, the Philippines, Thailand, Malaysia, and Singapore 77 Conclusion 136

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Instituting the regional rights regime: the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the role of civil society 139 Introduction

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contents The dichotomy between the ASEAN Way and human rights 144 ASEAN’s rejection of norm change: neither participatory regionalism nor flexible engagement 147 How ASEAN softened its stance on human rights 151 The promotion and protection of human rights by AICHR 157 Track 2 and 3 influences on human rights 163 Consolidation of the Working Group’s initiatives with that of the Vientiane Action Programme (VAP) 167 The next phase: regional human rights transformation through AICHR 176

5

Human rights understanding between the ASEAN region and the United Nations: convergence, regional cohesion, and national responsibility 181 Introduction 181 Convergence of UN and ASEAN agendas on human rights issues Relating UN initiatives to ASEAN: maximising domestic impact Moving forward: establishing national human rights institutions (NHRIs) in ASEAN states 197 Conclusion 202

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The unexplored aspect of human rights: what ASEAN needs to understand about the right to development

183 192

206

Introduction 206 The ‘generational theory of human rights’ and the ‘right to development’: mere terms of art? 209 Meeting each other half way: the development discourse adopting human rights practices 213 The five ASEAN states and the Millennium Development Goals 220 Improving human rights and development: how to get states to act on trade, aid, and good governance? 227 Conclusion 245

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Sustaining AICHR’s substantive empowerment: implementation, integration, and international law Implementing human rights norms 248 Integrating a human rights culture into ASEAN societies Developing international human rights law at the ASEAN regional level 254

Bibliography and sources Index 286

257

248 251

TABLES

1 Status of Millennium Development Goals (MDGs) attainment for the five ASEAN states page 223 2 National statistics of the five ASEAN states 229 3 Governance ranking (percentile rank) 245

ix

PREFACE

This book is the culmination of four years of work, during which time the institutional structures for human rights in the Association of Southeast Asian Nations (ASEAN) region changed dramatically, and for the better, I believe, despite what critics might say. While it is true that the ASEAN Intergovernmental Commission on Human Rights (AICHR) is not yet a fully fledged commission that promotes and protects human rights according to international standards in this region, I believe that this will change in time. ASEAN peoples are becoming more aware of human rights, and civil societies are now more dynamic and vibrant. Even within the ASEAN states themselves, slowly but surely, government officials are becoming less wary and more accepting of and familiar with human rights and its modalities. I believe that in time to come, with generational and internal transformation, human rights will one day take root as part of ASEAN’s identity. It will doubtlessly be a long process with many obstacles along the way but it will come about. Through the course of my research into the evolution of human rights in the ASEAN region and my participation in the Track 2 and 3 processes on the subject matter, I have discovered much in which to keep faith. This is primarily the many human rights proponents comprising civil society actors, academics, and state officials who have worked and are still working tirelessly to bring about a comprehensive human rights system in the ASEAN region, both within their national societies as well as in ASEAN as a whole. While there is undoubtedly much to do before human rights takes root in ASEAN – and critics are quite justified in pointing out the longstanding human rights violations, which continue to go unaddressed in the region – for ASEAN to progress this far to explicitly incorporate human rights officially into the ASEAN Charter of 2007, and to set substantive goals for human rights cooperation, is already xi

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a remarkable achievement, especially in light of the ‘Asian values’ debacle and that the topic of human rights is especially sensitive, if not taboo. For a long time, therefore, human rights institutionalisation in ASEAN did not seem possible. Even when state–civil society engagement on human rights began in the 1990s, the setting up of a regional mechanism to promote and protect human rights appeared to be several generations away in the future. However, the ASEAN Charter’s provision for the setting up of an ASEAN human rights body in Article 14 was a welcome surprise. It gave the necessary boost to human rights, making it a legitimate issue for discussion at the official regional level, and it set in motion the oft-conflicted process of establishing the first human rights mechanism in Asia, the ASEAN Intergovernmental Commission on Human Rights, in 2009. The journey of ASEAN and human rights has been extremely fatiguing and disappointing at times, but as we enter the inaugural phase of AICHR’s operation, it also holds much hope and promise, in which I and my colleagues working on human rights in the region keep faith. My work on human rights in ASEAN would not be possible without the support of mentors and colleagues whom I have met over the years – many of whom have preferred to remain anonymous – in the Working Group for an ASEAN Human Rights Mechanism; the Singapore Working Group for an ASEAN Human Rights Mechanism (MARUAH); ASEAN-ISIS (a grouping of institutes of strategic and international studies); Suara Rakyat Malaysia (SUARAM); Forum-Asia; the National Human Rights Commissions of Indonesia, Malaysia, the Philippines, and Thailand; and, last but not least, the officials of ASEAN member states. In writing this book, I owe a debt of gratitude to Simon Tay for introducing me to the ASEAN processes and stakeholder groups without which I would not have been able to begin my project; Yeo Lay Hwee for providing the opportunity to work in-depth on specific Southeast Asian issues and enabling me to understand ASEAN more deeply; Marzuki Darusman, Braema Mathi, Carlos Medina, Vitit Muntarbhorn, Sriprapha Petcharamesree, and Arpee Santiago who, through their long experience in working on human rights in ASEAN have encouraged and inspired me to keep forging ahead; and Andrew Byrnes, Jean d’Aspremont, Andrea Durbach, Michael Ewing-Chow, Thio Li-ann, Hitoshi Nasu, Dianne Otto, Catherine Renshaw, and Kevin Tan, who provided insightful comments, challenged me to think more broadly and deeply and, most excitingly, whose words and works have sparked off new ideas for the next stage of my research on international law, human rights, and

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ASEAN. I would like to thank especially Simon Chesterman for his generous mentorship and guidance of my work as the Asian Society of International Law Research Fellow at the National University of Singapore. Professor Chesterman has taught me much in terms of scholarship and work ethic, and above all has shown me what it means to be a truly sterling scholar. Finally, I must thank all of my friends and family whose good cheer, encouragement and belief in me kept me going. It is to my parents that I dedicate this book, for their patience and unflinching support of my endeavours even while they could not quite understand my work, especially in the earlier years when international law and human rights had not yet become familiar issues in the ASEAN region. Tan Hsien-Li Feast of St Francisco de Capillas

1 Charting the human rights institutionalisation process in Southeast Asia

Whither a regional or sub-regional human rights system for Asia? For years, it was widely deemed a disappointment to the universality of human rights that Asia did not have a regional human rights mechanism,1 unlike the Americas, Europe, and Africa, notwithstanding the varying standards of efficacy these bodies possess.2 As such, there were unabated calls to correct this anomaly. This was most volubly witnessed in the ‘Asian values’ debate of the 1990s.3 Realistically speaking, however, an Asia that spans from the Middle East to Japan is geographically, politically, and culturally too diverse for human rights to be managed effectively by a single overarching mechanism. Enthusiasm for Asia to have a system of human rights protection must recognise the disparate political structures that range from communism like in China and Vietnam; the ‘semi-authoritarianism’ of Singapore and Malaysia; to full democracies such as India, the Philippines, South Korea, and Japan. Even while universal human rights must take centre stage, 1

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Virginia A. Leary, ‘The Asian Region and the International Human Rights Movement’, in Claude E. Welch and Virginia A. Leary (eds.), Asian Perspectives on Human Rights (Boulder, San Francisco, Oxford: Westview Press, 1990), 13, at 13–14. It is recognised that there exist counter-arguments to the school of thought which holds regional human rights bodies as ‘satellites’ of the United Nations (UN) system. Critics of the latter school hold that regionalism, and the opportunity for cultural adaptation and justification, can lead to a dilution of the universal values of human rights. I would generally agree with Christoph Schreuer that although variations do exist among the regional systems, ‘the basic unity of human rights as a universal set of standards has prevailed over cultural relativism and regional fragmentation’. See Christoph Schreuer, ‘Regionalism v. Universalism’, 6(3) European Journal of International Law (1995) 477, at 485. See, for instance, Ralph Wilde, ‘NGO Proposals for an Asia-Pacific Human Rights System’, 1 Yale Human Rights and Development Law Journal (1998) 137. This has also been noted by Vitit Muntarbhorn, Regional Protection of Human Rights in Asia, Lecture at the International Institute of Human Rights, Strasbourg, France, July 1997, at www. hurights.or.jp/asia-pacific/no_10/no10_protection.htm.

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distinct cultural traditions, social practices, and environments result in particular needs for each Asian country. A ‘margin of appreciation’ – to borrow the term from the Europeans – should, as far as possible and without making a travesty of human rights, be respected so as to encourage enculturation and ownership of the system. Local and regional ownership of a system adhering to international human rights standards in Asia is especially important to deflect misguided notions on cultural particularism – as evidenced in the cacophony of Asian voices stressing each state’s individual priorities in the Regional Meeting for Asia of the World Conference on Human Rights held in Bangkok (‘Bangkok Conference’) in 1993. This meeting was intended to coalesce the regional perspectives on human rights so that they could be tabled at the subsequent World Conference on Human Rights held later that year in Vienna (‘Vienna Conference’) to re-affirm the universality of international human rights. However, the wide range of opinions pertaining to the different socio-political contexts of the participating states at the Bangkok Conference made it extremely difficult to agree on the terms of the Final Declaration of the Conference (‘Bangkok Declaration’). Moreover, the Asian states’ rigid stance on cultural relativism, trenchant opposition to ‘ideological imperialism’ in the international human rights project, the insistence on the right to development, and the pre-eminence of socio-economic priorities caused anxiety among the international community that the Bangkok Declaration would ‘hijack’ the Vienna Conference’s aim of concluding universal principles of human rights for the world community.4 Against such a background, therefore, even if an overarching Asian human rights mechanism is possible in the future, present circumstances do not permit such a structure, let alone the ambitious plan of having an institution that spans the Asia Pacific or even on a smaller scale focusing only on East Asia. The continent of Asia does not possess a regional

4

Copies of statements by representatives of Asia governments at the Vienna World Conference on Human Rights are with the author. For instance, the then Indonesian foreign minister, Ali Alatas, had declared on 14 June 1993: We . . . voice our concern at . . . international media reports that tend to give the impression that the success of the Conference is being threatened by a clash of values between the developed countries of the North and the developing countries of the South . . . This depiction is not only erroneous but also unwarranted and therefore counterproductive.

whither a regional human rights system?

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political organisation like the African Union or Organisation of American States that can help to spearhead human rights efforts. The states also do not share a common objective borne out of catastrophic experiences to sustain the institution of an independent human rights mechanism as seen in the establishment of the European Commission and Court of Human Rights after the Second World War. It is thus unsurprising that proposals for a pan-Asian human rights institution did not progress past the 1980s and 1990s.5 If human rights mechanisms are to be successfully established in Asia, it is my opinion that sub-regions need to be clearly defined within the larger Asian environment such that sub-regional human rights systems can be built first.6 While some may think that this is an inefficient method of institutionalising human rights and unfair for the Asian peoples who fall outside the ambit of protection and that Asia should follow the prototype of a continent-based human rights system,7 I believe that the benefits arising from such smaller groupings are likely to outweigh such disadvantages.8 Sub-regional systems can count on some shared history, closer intra-state relations, and a smaller 5

6

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Since 1982, the UN has organised workshops on regional human rights arrangements in the Asian and Pacific region with the aim of establishing a regional mechanism. See Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, at www.unhchr.ch/html/menu6/apw.htm. On the non-governmental level, the Asian Human Rights Commission convened a conference to declare an Asian Human Rights Charter – A People’s Charter to further the movement towards a state-sponsored human rights charter for the whole continent, at www.ahrchk.net/charter/mainfile.php/ declaration. The Law Association for Asia and the Western Pacific (Lawasia) also organised the Seminar on National, Local and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region in Colombo, 21 June – 2 July1982, to discuss the need for a regional human rights structure. See Lawasia, Human Rights in the Asian Region: Recent Trends in Human Rights, Vol. II (Sydney: Lawasia, 1982); and Wilde, supra note 3. Not much has resulted from these initiatives. The prospect of an East Asian mechanism was considered initially. However, given the nature of East Asia relations, there has not been much enthusiasm for a system solely limited to this sub-region as the mechanism would be most likely hit many political hurdles. For an overview of East Asian human rights, see Hidetoshi Hashimoto, The Prospects for a Regional Human Rights Mechanism in East Asia (New York: Routledge, 2004). This of course does not discount the protections afforded at the domestic level by constitutions, and where applicable, the upholding of international human rights law in national courts. Gains in sub-regional initiatives have been recognised in the Conclusions of the 11th Workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region, Pakistan, 25–7 February 2003, at www.unhchr.ch/html/menu6/ islamabad.htm, at para. 16.

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geographical area which would facilitate the system’s manageability. Also, as will be seen in this book, the political will that is so essential for the successful institutionalisation of human rights protection worldwide is especially necessary in Asia. Asia is made up of states which remain very protective of their sovereignty and it would be much less complicated to facilitate confidence, trust, and state ‘buy-in’ on the smaller sub-regional scale. This proposition has already proven true in Asia. While variations of human rights initiatives continue to be mooted for Asia, the Association of Southeast Asian Nations (ASEAN) has pulled away from the fold to establish the ASEAN Intergovernmental Commission on Human Rights (AICHR) on 23 October 2009, subsequent to the pronouncement of Article 14 of the Charter of the Association of Southeast Asian Nations (‘ASEAN Charter’) that ASEAN should establish a regional human rights body.9 In view of all the above, I have chosen to study the human rights institutionalisation process for Southeast Asia under the auspices of its regional organisation.10 To have all the ten ASEAN member states explicitly promise in the Charter to promote and protect human rights through a regional mechanism is of seminal importance not least because it was the first statement of positive action for the establishment of such a system (as compared to the vague promises of the years prior); also, this statement was legally binding upon ASEAN by virtue of it being enshrined in the Charter.11 One cannot overlook the importance of this as ASEAN seldom makes binding agreements and when it does, they usually pertain to economic matters.12 With respect to the Charter, however, ASEAN states intend that it be a binding regional pact that serves ‘as a legal and institutional framework of ASEAN to support the realisation of its goals 9

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Charter of the Association of Southeast Asian Nations, 20 November 2007 (entered into force 9 December 2008). Article 14(1) states: ‘In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body’. For convenience, I shall use ‘Southeast Asia’ and the ‘ASEAN region’ as synonymous, even though Timor Leste is considered a part of Southeast Asia but is not a member of ASEAN. This will be discussed in Chapter 4. ASEAN has traditionally eschewed overt legalism in favour of diplomacy – except for the areas of economic cooperation and dispute settlement – and these tend to be in the form of agreements, declarations, memoranda of understanding (MOU), policies and frameworks and roadmaps. The two key regional security treaties remain the Treaty of Amity and Cooperation in Southeast Asia (TAC), signed on 24 February 1976, and the Treaty on the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ), signed on 15 December 1995.

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and objectives’ through the codification of ‘all ASEAN norms, rules, and values’ – and this includes the promotion and protection of human rights.13 Thus the Charter is the first step by which human rights are codified within the ASEAN operative rules. It would follow that the promotion and protection of human rights would henceforth have higher priority and more credence than its pre-Charter status. Of course, ASEAN’s advancement in regional human rights institutionalisation does not materialise solely and unilaterally from the ASEAN Charter. It builds upon a decade and a half of annual declarations and action plans that were part of the overall plan to build a cohesive ASEAN Community based on the three main pillars comprising a Political-Security Community, an Economic Community, and a SocioCultural Community.14 It is hoped that ASEAN’s human rights institutionalisation process flourishes and eventually leads to the full functioning of the AICHR, a body of human rights norms (hard law and soft law inclusive) in line with international standards, and a court to adjudicate on rights disputes. For now, the exact scope of the AICHR’s work is still being mapped out. It is uncertain what the full extent of AICHR’s powers exercised and its level of interaction with civil society and national human rights institutions will be as it proceeds into its first phase of operation.

The framework of human rights in ASEAN It is important to note that the sea-change in ASEAN’s attitude towards human rights has only gained pace at the turn of the twenty-first century. Hence, there is little, if any, recent analysis of regional human rights movements and the number of critical studies on this topic is few and far between.15 In large part, this is understandable as Southeast Asia does not lend itself easily to scrutiny. Not only is information difficult to obtain due to official restrictions or otherwise, the language and technological barriers within the region are also obstacles. For instance, 13

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Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 12 December 2005. See ASEAN Community, at www.aseansec.org/about_ASEAN.html. For more recent analyses, see Maznah Mohamed, ‘Towards a Human Rights Regime in Southeast Asia: Charting the Course of State Commitment’, 24(2) Contemporary Southeast Asia (2002) 230; Thio Li-ann, ‘Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go Before I Sleep’, 2 Yale Human Rights and Development Law Journal (1999) 1; Philip J. Eldridge, The Politics of Human Rights in Southeast Asia (London: Routledge, 2002).

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regional human rights websites – whether the states’ or civil society groups’ – can be notoriously difficult to access due to technological problems. Scholars may be further deterred by the reticence shown by the states towards moving the human rights process forward. As little has been documented about ASEAN and its human rights institutionalisation process, this book seeks to synthesise the Southeast Asian progression on human rights beginning in the wake of the ‘Asian values’ debate and culminating in the formal regional institutionalisation within ASEAN as the AICHR. It should be noted that the book focuses on substantive issues of international human rights law and emerging norms rather than being a strictly theoretical discussion of human rights in the ASEAN region. This is meant to aid interested readers in forming nuanced perspectives beyond the dated ‘Asian values’ debate and also to alert them of the superficiality of seeing human rights only within the context of the ASEAN Charter. This is deliberate as existing international legal theories do not explain the Southeast Asian situation very well. I believe that human rights theories in relation to the ASEAN and human rights will arise only after AICHR’s establishment, especially with the advent of specific norms which the ASEAN states wish to promulgate through its ASEAN Declaration on Human Rights. This would mirror the experience of the international human rights system, where as Louis Henkin noted, theoretical and philosophical justification was largely a ‘post-establishment’ venture.16 Nonetheless, I would like to posit three main propositions as lenses through which to view the region. They, to my mind, are hallmarks of ASEAN’s interaction with human rights without which one cannot truly understand the emerging human rights framework of ASEAN. These are, namely, (1) ‘Asian values’ – the need to accept the justifiable demands of cultural particularities with respect to human rights and discount those which are merely excuses for continued violations; (2) the predominance of state sovereignty; and (3) the transformative power of regional and domestic rights movements. This exposition will thus leave aside the circuitous arguments of the ‘Asian values’ debate to concentrate on actual measures that have been taken to improve the receptivity of human rights in the ASEAN region. This is especially important, I feel, as although the ‘Asian values’ debate of the 1990s was promptly quashed by the Asian financial crisis in 1997 16

Louis Henkin, The Age of Rights (New York, Oxford: Columbia University Press, 1990), at 6.

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and examined thoroughly by many academics,17 concepts of ‘universalism versus particularism’, ‘Asian or Confucian notions of rights and duties’, ‘cultural differences’, ‘communitarianism versus individualism’, and ‘socio-economic and development rights preceding civil-political liberties’ unfortunately continue to pervade many discussions on human rights in Asia and, in particular, Southeast Asia.18 Furthermore, Southeast Asia has often been subsumed under East Asia in the debate such that over-generalisation has often happened.19 This has resulted in the overlooking of the crucial details particular to Southeast Asia, not to mention the diverse backgrounds of its component states, including the obvious fact that societies such as Malaysia, Indonesia, and the Philippines are distinctly non-Confucian, while even for Singapore it remains an artificial construct. Although much has since been written to unveil these common misconceptions,20 they unfortunately continue to plague scholarship 17

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This is a selection of the voluminous literature on the said debate. For an overview, see for example, Victor Mallet, The Trouble with Tigers: The Rise and Fall of South-East Asia (London: HarperCollins Publishers, 1999); Michael Jacobsen and Ole Bruun (eds.), Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Surrey: Curzon, 2000); Lucian W. Pye, ‘“Asian Values”: From Dynamos to Dominoes?’, in Samuel P. Huntington and Lawrence E. Harrison (eds.), Culture Matters: How Values Shape Human Progress (New York: Basic Books, 2000), 244; Joanne R. Bauer and Daniel A. Bell (eds.), The East Asian Challenge for Human Rights (Cambridge and New York: Cambridge University Press, 1999); Onuma Yasuaki, ‘In Quest of Intercivilizational Human Rights: “Universal” vs. “Relative” Human Rights Viewed from an Asian Perspective’, Asia Foundation’s Center for Asian Pacific Affairs, Occasional Paper 2, March 1996; Yash Ghai, ‘Asian Perspectives on Human Rights’, 23(3) Human Rights Quarterly (1993) 342; Daniel A. Bell, ‘The East Asian Challenge to Human Rights: Reflections on an East West Dialogue’, 18 Human Rights Quarterly (1996) 641; and Dato’ Param Cumaraswamy, ‘The Universal Declaration of Human Rights: Is it Universal?’, 18 Human Rights Law Journal (1997) 476. ‘Asian values’ are often tabled at the conferences I have attended on human rights – the ASEAN-ISIS Colloquium on Human Rights (AICOHR) 2005 and 2006. Moreover, politicians have not appeared to change their minds about democracy and human rights in relation to Asian societies. See for instance, ‘Prosperity, Democracy Linked? History Says No, Straits Times, 27 August 2004. See for instance, Mahathir Mohamad (Hashim Makaruddin, ed.), Democracy, Human Rights, EAEC and Asian Values: Selected Speeches (Selangor: Pelanduk Publications for the Prime Minister’s Office of Malaysia, 1995, 2000, in press); Fareed Zakaria, Culture Is Destiny; A Conversation with Lee Kuan Yew, 73(2) Foreign Affairs (March/April 1994) 109; and Bilahari Kausikan, An East Asian Approach to Human Rights, 2(2) Buffalo Journal of International Law (1995–6) 263. Simon S. C. Tay, ‘Human Rights, Culture, and the Singapore Example’, 41 McGill Law Journal (1996) 743; Jack Donnelly, ‘Human Rights and Asian Values: A Defense of “Western” Universalism’, in Bauer and Bell (eds.), supra note 17, 60; Amartya Sen,

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on human rights in Southeast Asia.21 While this is slowly changing, the ‘Asian values’ blinkers must be cast off in examining the present case of human rights in Southeast Asia as that episode was unfortunately more political wrangling than a real debate on human rights.22 To enable reasonable cultural practices to be respected at the same time that human rights are upheld, it is inevitable that the AICHR, ASEAN states and domestic courts begin to work out the solutions wherever there is a culture–rights juxtaposition. In the course of my investigations, I have realised that the post-‘Asian values’ progress in ASEAN regional human rights is largely due to the combined efforts of states, civil society comprising non-governmental organisations (NGOs) – both local and international – grass-roots organisations, international organisations like the UN, and a politically aware and active citizenry. The increasing democratisation (albeit still in its primitive stages) of Southeast Asian societies and the onset of new and more ‘liberal’ leadership (though this remains contentious given the ASEAN states’ predilection for authoritarianism) have enabled a more conducive atmosphere for human rights discussion and empowerment to flourish. This has been seen in the thawing state–civil society engagement over the years. For instance, an NGO, the Working Group for an ASEAN Human Rights Mechanism (‘Working Group’) has persuaded ASEAN officials to take a more amenable stance through diplomatic persistence. In its turn, ASEAN has named the Working Group as a key partner in facilitating human rights in the region. Going on to the substantive aspects of establishing a regional system, several components must be present if an ASEAN human rights body is to materialise. First, a steady and persistent effort in engaging and encouraging ASEAN officials to undertake the regional institutionalisation of human rights is needed. As will be seen in the following

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‘Human Rights and Economic Achievements’, in Bauer and Bell (eds.), supra note 17, 88; Onuma Yasuaki, ‘Toward an Intercivilizational Approach to Human Rights’, in Bauer and Bell (eds.), supra note 17, 102; and William Theodore de Bary, Asian Values and Human Rights: A Confucian Communitarian Perspective (Cambridge: Harvard University Press, 1998), at 3–5. For an excellent analysis, see Randall Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debates about “Values” in Asia’, 14 Indiana International and Comparative Law Review (2003) 1. However, the concepts raised during the 1990s furore are not in themselves wrong as difficulties such as cultural relativism do in fact exist. Hence, it would be necessary to sift out the salient from the misleading, and take it into consideration with respect to the establishment of AICHR.

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chapters, previous attempts to convince the ASEAN states to institute a formal human rights regime in the region through philosophical justification or international legalisms have not borne fruit. Declarations of the universality of human rights based on humankind’s inherent dignity and shared brotherhood, and the parallels drawn with various religions to show the roots of inalienable human rights during the ‘Asian values’ debate, did little to convince Asian states, including the ASEAN region.23 Even if these theories were indubitable, truth often does not prevail over realism or ‘hard cases’ in international politics. Given the continuing emphasis on sovereignty, ASEAN states cannot and will not be made to do anything against their will. Moreover, even if all the states accept that human rights emanate from human nature, the liberal conceptualisation of human rights and democracy in the international sphere are not ideals that Southeast Asian societies are naturally familiar with or whose governments are anxious to promote wholesale. Second, even if they are becoming more congenial to the idea of human rights, ASEAN states have tended to prefer a systematic and ‘step-by-step’ approach with proper consultation and consensus in building the regional human rights mechanism.24 It is obvious that attempting to strong-arm them into instituting such an AICHR with international standards of human rights protection by merit of their promises made in international declarations have not worked. While this does signal continuing hesitancy on the part of ASEAN states, I feel that one has to be astute in making this trenchant stand of ASEAN work in favour of universal human rights. It is, I feel, unconstructive to dismiss AICHR as without real impact. It is much better to be mindful of its shortcomings and help it to achieve its potential. The process of increasing and improving human rights in Southeast Asia is as important as the goal of establishing a regional human rights mechanism. Although the advantages of having a regional system imbued with universal norms are undeniable and should be striven towards, this must be done in manageable stages by putting the necessary infrastructure and fundamental institutions in place as AICHR begins to function. 23

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For a concise discussion, see Hilary Charlesworth, ‘The Challenges of Human Rights Law for Religious Traditions’, in Mark W. Janis and Carolyn Evans (eds.), Religion and International Law (The Hague: Kluwer Law International, 1999), 401. This has been the modality adopted by the Working Group in their interaction with ASEAN officials. See Summary of Proceedings of the Annual Workshops on an ASEAN Regional Mechanism on Human Rights, at www.aseanhrmech.org/conferences/index. html.

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Third, timing, sufficient resources, and a citizenry that understands how the mechanism works and governmental support are indispensable to AICHR’s proper functioning. The instant establishment of a regional human rights mechanism cannot be held as an immutable good. It is impossible to set up AICHR and expect it to work merely because of its overriding merit. Arbitrary imposition of a mechanism that both states and people are unfamiliar with and do not know how to utilise will become an empty shell. It is doubtless that many things need to be changed in the ASEAN region, but that cannot be successfully achieved at the expense of the necessary period of internalisation and ‘enculturalisation’. The UN and European systems of human rights took decades of progress and are still adapting, while the inter-American and African systems are similarly in the adjustment process. The same is true for AICHR. Even today, despite the significant (if incremental) successes, it would be all too easy to write off the human rights situation as stagnant. This is because even if collective agreement has been made at the ASEAN level to improve the standing of human rights regionally, the individual states alone can portray very different attitudes. For instance, the Philippines, Indonesia and Thailand are avid supporters of the human rights movement while Singapore and Malaysia prefer a ‘wait-and-see’ attitude.25 It is hence often good to take a practical and guarded view of such developments. Given the capricious nature of state behaviour, one cannot underestimate when the compulsion for state sovereignty will rear its head, given the entrenched preference for the ‘ASEAN way’, thereby negating any success on the human rights front.26 Additionally, in the evolutionary fashion of human rights, I have noticed that while ASEAN states are more accepting of international norms, the converse also holds true. While Southeast Asia no longer stridently proclaims the precedence of ‘Asian values’, there are fewer clamours from international quarters that civil and political rights should precede the economic, social, cultural, and developmental. Instead, the emphasis on the shared equality of the right to development and economic, social and cultural rights has come to the forefront. International human rights have thus come full circle in translating into real action what has always been professed the moment 25

26

Per Carlos Medina during his presentation at ASEAN-ISIS Colloquium on Human Rights (AICOHR), 15 May 2006. The ‘ASEAN way’ will be further explained below.

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the International Bill of Rights came into being – the indivisibility of civilpolitical and socio-economic and cultural rights. This recognition is all the more significant as not only does it vindicate the ideals erstwhile championed by the developing world (including the ASEAN states) it also justifies their socio-economic and developmental claims. This is reinforced through the UN Millennium Development Goals as the international community tries to eradicate poverty and raise living standards.27 Moreover, regard for social justice and the right to development would give renewed impetus to the stalled Doha talks due to disagreement over abolition of quotas and the guarantee of fair trading grounds.28 ASEAN states, alongside other developing nations, have been repeatedly calling for the resumption of the Doha trade discussions.29 On another note, however, while socio-economic and developmental rights have consistently been emphasised in the context of the establishment of an ASEAN human rights mechanism, there has never been any concrete enunciation of how they are to be formulated. It is therefore timely to introduce a new dimension to this process by incorporating the latest developments at the level of international human rights into the consciousness of the rights movement in Southeast Asia. It is these complexities that are enmeshed within the potential establishment of an ASEAN human rights mechanism which necessitates revisiting concepts and debunking myths that surround regional human rights. A stock-taking assessment of the practical difficulties that may impede progress, as well as the consideration of the ‘new’ socioeconomic and developmental aspects of human rights in the ASEAN context, is thus timely and necessary so that the newly established AICHR knows where to begin its mammoth task of promoting and protecting human rights in the region. It must be noted that I have chosen to concentrate on studying the five member states of Indonesia, Malaysia, the Philippines, Singapore, and Thailand as they have been the more supportive ASEAN members of AICHR’s establishment. Even if it is arguable that these five states still do not possess the unwavering political will and respectable human rights records to be seen as the proponents of regional human rights, I believe they are better placed now to initiate concrete action than they were a decade ago. Moreover, I feel that the political structures of the other five 27 28

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The UN Millennium Development Goals can be found at www.un.org/millenniumgoals. Doha Development Agenda: Negotiations, Implementation and Development, at www.wto. org/english/tratop_e/dda_e/dda_e.htm. ASEAN Statement on the WTO Doha Negotiations, at www.aseansec.org/18695.htm.

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ASEAN states – Cambodia, Laos, Myanmar, Vietnam, and Brunei – are at present, relatively speaking, not as open to the scrutiny of human rights.30 Strict supporters of the ideal of universal human rights may criticise this approach as acceding to and prolonging authoritarian rule in the countries which arguably need human rights most. Conversely, it is precisely because the establishment of a successful human rights system is so tricky that I have borne in mind the real and practical considerations and have avoided considering the issue in absolute terms. For instance, even though the Myanmarese junta now acquiesces to participate in the regional human rights initiative, Myanmar remains adamant about keeping to the national ‘brand’ of human rights.31 It is hoped that regard for human rights will grow within ASEAN and that in time all ASEAN members will agree to adhere to human rights in creed and action as AICHR’s operations get underway.

Chapter outlines To begin, therefore, Chapter 2 will provide the background to the beginnings of human rights in Southeast Asia by tracing how the international rights movement arose in the French and American Declarations through to the present UN system and regional regimes. It will be seen that many of the recurring contentions that Southeast Asian (and other developing) states hold against international human rights have their roots in the formation of the Bill of Rights after the Second World War. For one, the international institution of human rights that encompasses civil, political, economic, social, cultural, and developmental aspects, and vested in the UN as guardian of its norms, is really a post-war construct with strong Western liberal democracy influences.32 Contrary to the 30

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Strictly speaking, ASEAN is a loose association of states without supranational powers. However, given the intrusive nature of human rights, it will be inevitable that some form of bilateral and multilateral scrutiny will occur when human rights are enshrined within the ASEAN framework. This human rights divide has also been noted by Tommy Koh who was involved in the negotiations for the ASEAN Charter and who noted in the 7th Workshop for an ASEAN Human Rights Mechanism that Indonesia, Malaysia, the Philippines, and Thailand are enthusiastic about ASEAN and human rights, while Cambodia, Laos, Myanmar, and Vietnam are markedly less so. The middle-liners are Singapore and Brunei. See ‘ASEAN’s Human Rights Divide’, Today, 13 June 2008. See Myanmar government, Political Situation of Myanmar and its Role in the Region, at www.myanmar-information.net/political/english.pdf, at 21–36. Liberal political thought that arose during the Enlightenment and its development thereafter – theories propounded by Thomas Hobbes, David Hume, Jean Jacques

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popular portrayal that the ‘inalienable’, ‘inherent’, and ‘universal’ qualities of human rights emanate from the natural dignity of humanity, the modern international human rights institution is a product of post-war politics. It is not as commonly believed to come from philosophy or religion or any other belief system. This was apparent when attempts to append ideological or philosophical meaning to human rights in the preparatory phases of the Universal Declaration of Human Rights (UDHR) were reduced to simple generalisations that were meant to be all-inclusive.33 Unsurprisingly, this vagueness (and perhaps parochialism) caused a lot of tension when different value systems subsequently tried to justify the case for and against human rights such as in the ‘Asian values’ debate of the 1990s, or whether Confucian or Islamic tenets could be squared with international human rights.34 Another myth due to realpolitik was that of civil-political rights being of a higher status than the socio-economic, flagrantly breaching the ideal of equality and indivisibility of all the substantive human rights enshrined in the UDHR. This false schism ensued from the US–Soviet Union rivalry after the Second World War. With the Western bloc supporting the former and Socialist bloc, newly decolonised, poor, and developing states the latter, the argument continued through the 1990s. This bias is only now diminishing with the gradual recognition of the importance of socio-economic and developmental aspects of human

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Rousseau, et al. – had a decisive role in shaping political society and the law of the nations. Naturally, the precursor of modern human rights – the French and American Declarations – has also followed somewhat in the same vein, and so have present-day international human rights and the attendant laws. See Jerome Shestack, ‘The Philosophical Foundations of Human Rights’, in Janusz Symonides (ed.), Human Rights: Concept and Standards (Aldershot, UK; Burlington, VT: Ashgate; Paris: UNESCO, 2000), 31; and Stephen Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’, 12(2) European Journal of International Law (2001) 269. For instance, the Islamic and Confucian views brought up by Saudi Arabia and China. See Chapter 2. Admittedly, such questions of religion, philosophy, and ideology are difficult to prove. While I support the existing international human rights system and recognise that to use the liberal democratic model is somewhat expeditious, substantively, this institution has its limits – such as the lack of provision for human responsibilities alongside rights. Where the metaphysical nature of human rights is concerned, I am of the view that this is best explained by traditional natural law along the lines of Thomistic and Finnisian thought. See, for example, John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press; New York: Oxford University Press, 1980); and Saint Thomas Aquinas (William P. Baumgarth and Richard J. Regan, eds.), On Law, Morality, and Politics (Indianapolis: Hackett, 1988).

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rights. This is seen in the expansion of the field of development and more recently, the global effort to eradicate poverty in the Millennium Development Goals. In addition, the advent of the ‘twin package’ of human rights and democracy will be looked at. During the Cold War, democracy began to be seen as concomitant with human rights. When developed nations started to make aid to developing nations conditional upon political freedom, they incurred great animosity from the developing world. This tying of aid to democratisation and human rights continues to be a sore point with Asian and other developing states. Moreover, the role of small states in the formation of human rights during the postwar and independence-movement period will also help to explain the stance taken by Southeast Asian states regarding self-determination, racism, decolonisation, and national development discussed in the later chapters. After the Cold War, the human rights movement accelerated as the UN Security Council broke free of its US-Soviet deadlock to be able to tackle international crises, like those in Iraq and the former Yugoslavia.35 Concern for human rights and humanitarian standards thus increased as atrocities reached new heights.36 The determination that there should be universal jurisdiction for grave international crimes paved the way for the establishment of the International Criminal Court.37 The international crackdown on Islamic fundamentalism and terrorism after the 11 September 2001 bombings in the US also raised human rights concerns.38 To all these developments in international human rights, Southeast Asian states have sometimes remained ambivalent, or else are selective in the areas where they choose to make a stand. It will be illustrated that on top of their national priorities, the way these states react to the changing geopolitics in their attitudes and practices of 35

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For discussion on international humanitarian law and the laws on the use of force, see Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (New York: Oxford University Press, 2001); and Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2000). Theodor Meron, The Humanization of International Law (Leiden, Boston: Martinus Nijhoff, 2006). Karin N. Calvo-Goller, The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents (Leiden; Boston: Martinus Nijhoff, 2006); and Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (New York: New Press, 2006, 3rd edn.). Giuseppe Nesi (ed.), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism (Aldershot, UK; Burlington, VT: Ashgate, 2006).

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human rights depends in large part on balancing domestic exigencies with the need to satisfy hegemonic (the US) demands.39 Chapter 3 goes deeper into how Southeast Asian discontent stemming from the bias against the developing nations in international relations has impacted the region’s substantive human rights practices. Case studies of Indonesia, the Philippines, Thailand, Malaysia, and Singapore will illustrate state behaviour where human rights clashes with national priorities. In particular, an understanding of how these five states democratised will help illuminate their standing human rights attitudes. Summarily, all except Thailand have experienced decolonisation. Severe discrimination during colonial rule caused the general citizenry to rally behind the local leaders who fought for the right to selfdetermination. However, once that was achieved, and despite national constitutions explicitly safeguarding the selfsame rights as those stipulated in the UDHR, de facto adherence was superseded by the zeal for the consolidation of power and national building in what were very volatile and poor post-colonial societies. Inevitably, years of chafing under strong governments, growing disenchantment and a growing educated middle-class that fuelled civil society growth, have led to a more active citizenry calling for rights that corresponded to their particular needs. In the more extreme examples, ‘people power’ toppled the Marcos dictatorship in the Philippines;40 Suharto was ousted from office in Indonesia during the 1990s;41 while the Thai public demanded an end to military rule in 1992.42 Other forms of calling for more 39

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Simon S. C. Tay, ‘Asia and the United States after 9/11: Primacy and Partnership in the Pacific’, 28(1) Fletcher Forum of World Affairs (Winter 2004) 113; and L. R. Penna, Response of Southeast and East Asia to the International Criminal Court, Presentation at the International Committee of the Red Cross Regional Delegation Symposium on Contemporary Issues of International Humanitarian Law, Kuala Lumpur, Malaysia, 8–10 December 2004. For example, Amy Blitz, The Contested State: American Foreign Policy and Regime Change in the Philippines (Lanham, Md.: Rowman & Littlefield Publishers, 2000), at 157–92. For example, Lee Khoon Choy, A Fragile Nation: The Indonesian Crisis (Singapore: World Scientific, 1999). For example, Kevin Hewison (ed.), Political Change in Thailand: Democracy and Participation (London; New York: Routledge, 1997); Duncan McCargo (ed.), Reforming Thai Politics (Copenhagen: Nordic Institute of Asian Studies, 2002); Ake Tangsupvattana, ‘Thailand Election 2005: Towards Authoritarian Populism or Participatory Democratic Governance’, in Simon S. C. Tay and Yeo Lay Hwee (eds.), Elections in Asia: Making Democracy Work (Singapore: Marshall Cavendish, 2006), 67.

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autonomy are evidenced by the constant demands for media freedom in Thailand during the former Thaksin administration and military rule headed by coup leader General Sonthi Boonyaratglin and its interim government led by former prime minister, Surayud Chulanont,43 and the tumultuous period Thailand has suffered subsequently.44 The Thai and Filipino peoples have also tried to impeach Thaksin and former Philippine president, Gloria Macapagal-Arroyo.45 In Malaysia, racial equality and the freedom of religion are again being championed against the government, while the provision of jobs, prices of basic goods and a stable socio-economic climate were what the Indonesian voters wanted (and still demand) from endorsing President Susilo Bambang Yudhoyono as their president.46 In Singapore, socio-economic demands have also been made of the government, and its prime minister, Lee Hsien Loong, has declared that Singapore will continue to grow into an ‘open’ society.47 These public demands have taken on differing degrees of intensity – such as those states with a history of public demonstrations against the state such as Thailand, Indonesia, and the Philippines, and the milder forms of public discontent witnessed in Singapore and Malaysia. Whatever the case may be and no matter how strong these states are, domestic demands for greater rights and empowerment have to be carefully heeded. Parochialism and an attitude of ‘the state knows what is best for the people’ seldom sits well with the citizenry. Moreover, the states which have domestic mechanisms like the NHRIs in Indonesia, Malaysia, the Philippines, and Thailand, which monitor human rights compliance, tend to have an active civil society and vocal parliament which enable the rights movement to grow. Increasingly, it will be observed that beyond a certain point – whether or not the governments are supportive – the human rights movement takes 43 44

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‘Thailand: Govt Panel to Control “Inappropriate” Media’, Bangkok Post, 29 March 2007. International Crisis Group, Bridging Thailand’s Deep Divide, Asia Report No.192, 5 July 2010. Pankaj K. Jha, Thailand’s Political Crisis, Institute for Defence Studies and Analyses (IDSA), New Delhi, IDSA Strategic Comments, 21 September 2006; and ‘Arroyo Escapes Impeachment Bid’, BBC News, 6 September 2005. ‘Malaysia’s Melting Pot on the Boil’, Asia Times Online, 24 March 2007; ‘Race, Religion and a “Rough” Time – Malaysia’s Domestic Woes’, Seapsnet, 1 February 2007. On Indonesia, see Michael Vatikiotis, ‘Indonesia’s Elections and the Ordinary Voter’, in Tay and Yeo (eds.), supra note 42, 36. Singapore Prime Minister Lee Hsien Loong, National Day Message 2006, at http://sg2. mofcom.gov.cn/aarticle/chinanews/200608/20060802857382.html.

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on a life of its own, such as the increasing number of civil society groups that have arisen to deal with social challenges. These internal changes have helped to foster more governmental openness (albeit within certain limits) to social expectations and political views. An interesting point to note is that the states with domestic mechanisms for human rights tend to be the most enthusiastic for a regional mechanism. Yet, ironically, these are the same states that are guilty of widespread violations like extrajudicial killings by the security forces and brutality, endemic corruption exacerbating poverty and socio-economic problems. For instance, the Philippines’ reputation for freedom of speech is undermined by the killings of journalists.48 Conversely, Singapore (though often criticised for its lack of freedoms and openness) arguably maintains a generally clean human rights record but is comparatively reticent about having a regional mechanism. Another curious occurrence is that the popular demands refer more to constitutional rights or to their expectations of the government than to the international human rights standards that the states have signed up to. This may be partly due to the lack of public education and human rights promotion or a general attitude of lip-service to international norms. Building upon the five states’ human rights experiences, Chapter 4 details ASEAN’s attempts at human rights regionalism and details how and why Singapore, Malaysia, Indonesia, Thailand, and the Philippines are the stronger supporters of AICHR. As is commonly understood, ASEAN abides by the ‘ASEAN Way’ epitomised by mutual respect and strict non-interference in the domestic affairs of the other member states.49 With this close guard over sovereignty, it is no surprise that the numerous calls for an establishment of a regional system of human rights fell on deaf ears for many years even though its members were members of various major human rights treaties. Even the suggestion by Thailand in the late 1990s that domestic issues of ASEAN member states with bilateral or multilateral ramifications – like the haze or trans-border migration – should be tabled at the regional level for discussion, was met with fierce opposition as many member states opposed interference in its domestic 48 49

‘RP Lives up to Status of Killing Fields of Media Men’, Manila Mail, 2 April 2007. For a detailed exposition of the ‘ASEAN Way’, see, for example, Ju¨rgen Haacke, ASEAN’s Diplomatic and Security Culture: Origins, Development and Prospects (London: RoutledgeCurzon, 2003); and Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order (New York: Routledge, 2000).

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affairs.50 Gradually, however, democratic transitions, the rise of NHRIs, and the engagement of civil society with ASEAN all helped to pierce these intractable barriers. Human rights began to be mentioned in ASEAN documentation and, most significantly, were incorporated into the ASEAN Security Community Plan of Action (ASCPOA) – a high-priority regional agenda to enhance relations and safeguard regional stability.51 These were then repeated in the AICHR Terms of Reference and the ASEAN Political-Security and Socio-Cultural Community Blueprints. Presently, the AICHR Terms of Reference includes suggestions such as ‘establishing a network among existing human rights mechanisms; protecting vulnerable groups including women, children, people with disabilities, and migrant workers; and promoting education and public awareness on human rights’.52 These uncannily borrow almost word-forword the proposals the Working Group had time and again tabled before the ASEAN states. The Working Group has gained substantial goodwill through regular engagement with the ASEAN officials at a pace that is comfortable for each member state, as well as scaling back the suggestions that did not garner a favourable response – such as the proposition for an adversarial system of regional human rights monitoring through a supranational institution. It is significant that an NGO has gained this degree of acceptance at the ASEAN governmental level such that it has conducted workshops in cooperation with the foreign affairs ministries of Indonesia, the Philippines, Malaysia, Thailand, and, most recently, Singapore.53 Even while ASEAN omitted any official mention of human rights in its regional meetings and declarations, human rights-related concerns were not overlooked. These were generally tabled under human security issues such as drug and human trafficking, the protection of vulnerable groups such as children, women, and migrant workers, transnational crime and environmental problems such as the haze.54 While the language, 50

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For more on ‘participatory regionalism’, see Amitav Acharya, ‘Democratisation and the Prospects for Participatory Regionalism in Southeast Asia’, 24(2) Third World Quarterly (2003) 375. ASEAN Security Community Plan of Action, at www.aseansec.org/16826.htm; Annex, at www.aseansec.org/16829.htm. Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights, at www.aseansec.org/DOC-TOR-AHRB.pdf. 7th Workshop on Human Rights Mechanism for ASEAN, at www.siiaonline.org/?q=events/ 7th-workshop-human-rights-mechanism-asean. For ASEAN action on the environment, see www.aseansec.org/4916.htm; for transboundary crimes, see www.aseansec.org/4964.htm; and for social development, see www.aseansec.org/8558.htm.

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operation and modes of redress differ between human security and human rights – most notably the lack of claims by rights-holders from those in positions of responsibility, the similarities in scope and subject matter must have enabled ASEAN to grow more conscious of the human security and rights concerns in the region, thereby making the member states more amenable to the suggestion of having a regional human rights system. Additionally, apart from the cooperation between the Working Group and ASEAN member states and the human security angle, there have been other avenues by which human rights are initiated in the region, such as through the ASEAN-ISIS (a grouping of institutes of strategic and international studies) think-tank network, which organises the ASEAN-ISIS Colloquium on Human Rights (AICOHR), and the ASEAN People’s Assembly (APA), though these are lower in profile and are less well-recorded.55 Beyond ASEAN machinations, Chapter 5 compares ASEAN developments on human rights with what has been happening at the UN level. It is surprising to see that both ASEAN and UN meetings voice parallel paths in the quest for regional human rights systems. As early as 1994, the UN meeting for regional arrangements for the promotion and protection of human rights in the Asian and Pacific region held in Tehran saw the participating states stating certain points they wanted to hold immutable in the process of realising a regional mechanism.56 As will be seen, they – including the ‘step-by-step, building blocks’ approach – are coincidentally similar to what has been expressed at the ASEAN–Working Group level.57 This is a profound acknowledgement on the part of the international community of Asian and, implicitly, ASEAN concerns. Instead of condemnation, impatience, and recrimination, there is growing acceptance of the methodology by which the Asian states are comfortable in the implementation of human rights, the pace at which they are willing to progress, and their need for regular and precise consultation before action is taken. However welcome this narrowing gap is, it nonetheless remains on the theoretical level. A more understanding international stance towards the Asian way of 55

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For some records of these meetings, see: for ASEAN-ISIS Colloquium on Human Rights (AICOHR), at www.kas.de/proj/home/events/73/2/year-2006/month-5/veranstaltung_ id-18867/index.html (documentation of meetings on hand with author); for ASEAN People’s Assembly (APA), at www.asean-isis-aseanpeoplesassembly.net. Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, at www.unhchr.ch/html/menu6/apw.htm. This will be discussed further in Chapter 3.

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constructing human rights institutions is of little consequence if ASEAN states themselves do not put their aspirations into practice. After all, UN amiability and consideration for a ‘step-by-step’ and ‘building blocks’ approach do not equate to condoning tawdriness in the establishment of a regional human rights system that upholds international protections. What then are the practical steps ASEAN (or at least its more proactive members) needs to take next, having already established AICHR? Chapter 5’s other main task – apart from showing how the UN drew closer to Asia-Pacific ideals in the establishment of regional human rights systems – is to scrutinise the viability of the various suggestions that have resulted from such meetings, especially the First Regional Conference on Building Networks to Strengthen ASEAN Human Rights Cooperation hosted by the Philippines Commission on Human Rights, in partnership with the European Commission and the Philippine Working Group.58 The feasibility, attractiveness to ASEAN (especially the targeted five core states), and the measures needed to enable these recommendations to take substantive form will be among the questions analysed. In particular, current international advancements in the areas of information-sharing, NHRIs and human rights education will be considered in a manner that can help update and improve ASEAN regional human rights practices – both domestically and regionally. We shall find that there is a dearth of information exchange that is lamented by those working in the human rights field. Enhanced information networks enable best practices to be shared and the pitfalls of human rights implementation to be avoided. Currently, however, neighbouring states are seldom privy to bilateral information even if rights violations have trans-national ramifications. Additionally, the prospects of having thematic commissions for the protection of women’s, children’s, and migrant workers’ rights as concomitant mechanisms alongside the general regional rights body of AICHR will also be looked into. In addition, having ASEAN states readied for regional scrutiny is not an insubstantial feat. It must be cautioned that such closer discussion is only a first step and there is no telling how the states will then move this process forward to enable thematic human rights commissions. Therefore the problem of the scarcity of resources, shifting political will and other possible impediments will also be investigated. Having looked at the issues pertaining to the prevailing socio-political atmosphere surrounding human rights in the ASEAN region, Chapter 6 58

Summary of proceedings on hand with author.

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will explore the two major issues – the right to development and socioeconomic rights – that are now claiming their rightful importance on the international plane. These two rights have been the priority of ASEAN and other developing countries all this while, and if not properly considered and catered for as AICHR develops, will skew the balance of human rights in the region. Now that the international community is pushing for concerted action through the Millennium Development Goals (MDGs) of poverty eradication and ensuring better quality of human life through higher standards of sanitation, provision of clean water, education, tackling gender bias, fair trade and developmental aid, it appears as if human rights have come full circle. What was originally mooted in the drafting of the UDHR and intended to be a single Covenant of universal and indivisible human rights, torn apart by Cold War politics, is now overcoming the longstanding bias to be recognised as real human rights and being actively promoted by the UN.59 However, things are not so simple. The coming together of the traditionally discrete disciplines of human rights and development studies is fraught with tension and opposing methodologies, even if the subject matter overlaps. For instance, while there is the general idea of human well-being in the MDGs and that human rights protection is implied, there is seldom express mention of how the MDGs are indeed forms of human rights given that there are no avenues for ‘rights-claims’ against duty-holders. It is thus definitely too early to rejoice that the age of ‘third generation’ rights – the right to development – has arrived, while the international community is still trying to rework the boundaries of human rights and development. Hence Chapter 6 will also explain the difference between the growing human rights–development nexus and the right to development, thereby showing why the latter is still a work-inprogress, dependent somewhat on the former. Theoretical exposition aside, the chapter analyses how human rights and development manifested in the global project of the MDGs affect ASEAN, particularly Indonesia, Malaysia, the Philippines, Singapore, and Thailand. More starkly, however, while development and socioeconomic rights have been priorities for the ASEAN states, none of the human rights discussions have integrated this new dimension. Be that as it may, it is timely to look at the potential impact of the MDGs, the 59

See for example, Development – Right to Development, at www2.ohchr.org/english/issues/ development/right/index.htm.

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growing human rights–development institution as well as the plethora ‘rights-based’ approaches that seem to accompany this phenomenon. Their attainment of the MDGs will be assessed and the measures needed to improve performance – the domestic economic profile as well as fiscal measures, foreign debt, aid and trade – will similarly be examined. As constitutionalism factors like good governance, rule of law and anti-corruption are increasingly recognised for their role in ensuring good standards of human rights, global studies from the World Bank will be used to illustrate empirically the importance of such factors to international human rights standards.60 This approach is novel in two ways. First, it attempts to quantify what was previously deemed impossible – providing objective indicators of human rights achievement. Second, it makes tangible the relationship between good governance and human rights – that both are usually mutually reinforcing. Third, the link between the enjoyment of human rights and the rule of law will be clarified. While the impact of human rights–development discipline remains unclear, the components of constitutionalism will aid human rights development in the five ASEAN states. Additionally, those in the public and civil society sectors must be aware that the complex dimension of third generational rights needs to be incorporated into the proposed ASEAN human rights mechanism in the future. In the concluding chapter, Chapter 7 rounds up the thesis and offers several possibilities of the trajectory of AICHR. Several potential obstacles in the substantive translation of the human rights that are slated to be enshrined in the Terms of Reference for the human rights body enunciated in the ASEAN Charter will also be elaborated. These include the difficulties in squaring the different versions of human rights according to culture and political ideology.61 To keep ASEAN’s institutionalisation of human rights throughout the region on track, there are three core principles that AICHR, in the execution of its duties, must bear in mind. These are, namely, the implementation of human rights norms, integration of a human rights culture into ASEAN societies, and the development of international human rights law at the ASEAN regional level. If the AICHR is to be a credible and legitimate 60

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World Bank initiatives on good governance, rule of law, etc., at www.worldbank.org/ html/extdr/rights. For instance, Myanmar has expounded on its view of human rights. See Myanmar government, Political Situation of Myanmar and its Role in the Region, undated, at www.myanmar-information.net/political/english.pdf, at 21–36.

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institution, there needs to be certain set standards and methodologies in line with internationally agreed benchmarks of human rights justice. There cannot be a dilution of international human rights standards in favour of subjective regional preferences, although it is recognised that pertinent regional and national particularities are justifiable within a margin of appreciation. In sum, only by looking at things in the proper context can we avoid piecemeal understanding of human rights in Southeast Asia and jumping to conclusions. There is definitely more to the topic of human rights in Southeast Asia than the ‘Asian values’ debate. The only way advances in human rights in the region – both within the domestic sphere and as a regional body – can be achieved is by having a real and practical understanding of the political and historical background of human rights in the respective Southeast Asian states, such that policies can be tailored to match the crucial socio-political foundational factors of civil society, governance and civil institutions. In addition, an educated population, the people’s receptivity towards having a human rights mechanism, effective resource allocation, and the presence of national human rights institutions are also indispensable stepping stones towards the aspired end. With contextual understanding of the issues concerning human rights in the past and present, and a healthy respect of political and cultural limitations, one is better placed to assess what further steps and modes of implementation can be taken to better institute human rights in Southeast Asia, both nationally and regionally, progressing towards the goal of the eventual establishment of a fully fledged AICHR that upholds international human rights protections.

2 Enough of ‘Asian values’: roots of the ASEAN states’ reticence towards human rights Introduction Almost every analysis of human rights referring to Asia invariably deals with the issue of ‘Asian values’. Southeast Asia is no exception. Vestiges of this longstanding misconception tend to persist in academic discussion despite the fact that justifications of ‘Asian values’ were quite thoroughly demolished with the onset of the financial meltdown of 1997.1 Given that a number of jurists such as Thio Li-ann and Randall Peerenboom have also clearly demonstrated the differences between genuine cultural concerns and knee-jerk defences during the ‘Asian values’ debate and that the political furore has died down thus allowing for genuine ‘rights and culture’ dialectic to get underway, there is no need to prolong discussion of the minutiae of ‘Asian values’ in Southeast Asia.2 However, even if ‘Asian values’ are debunked, Southeast Asian states remain hesitant in participating in the international human rights system 1

2

Mark R. Thompson, ‘Pacific Asia after “Asian Values”: Authoritarianism, Democracy, and “Good Governance”’, 25(6) Third World Quarterly (2004) 1,079; Michael E. Barr, Cultural Politics and Asian Values: The Tepid War (London and New York: Routledge, 2002), 74–6. For the repartee on ‘Asian values’, see Fareed Zakaria, ‘Culture is Destiny: A Conversation with Lee Kuan Yew’, 73(2) Foreign Affairs (1994) 109; Bilahari Kausikan, ‘Asia’s Different Standard’, 92 Foreign Policy (1993) 24; and Aryeh Neier, ‘Asia’s Unacceptable Standard’, 92 Foreign Policy (1993) 42. On post-‘Asian values’ analyses of human rights, see Thio Li-ann, ‘Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go before I Sleep’, 2 Yale Human Rights and Development Law Journal (1999) 1; Karen Engle, ‘Culture and Human Rights: The Asian Values Debate in Context’, 32 International Law and Politics (2000) 291; Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca and London: Cornell University Press, 2003, 2nd edn.), at 107–23, 186–203; Hatla Thelle, ‘Limits to Universality: Questions from Asia’, in Kirsten Hastrup (ed.), Human Rights on Common Grounds: The Quest for Universality (The Hague, London and New York: Kluwer Law International, 2001), at 157–75; Vitit Muntarbhorn, ‘Asia and Human Rights at the Crossroads of the New Millennium: Between the Universalist and the Particularist’, in R. G. Patman (ed.), Universal Human Rights? (New York: St. Martin’s Press, 2000), at 81–95; and Randall Peerenboom, ‘Show Me the Money: The Dominance of Wealth in Determining Rights Performance in Asia’, 15 Duke Journal of Comparative and International Law (2004) 75.

24

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25

more comprehensively despite their accession or ratification of human rights treaties.3 They continue to insist on a fully consultative and gradual approach to developing the Association of Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights (AICHR). There must be other reasons, therefore, underlying this tentative adoption of international human rights standards. It is my aim to uncover the reasons behind this immutable posture so that suitable action may be taken to enhance the states’ receptivity towards human rights. Historical and geopolitical factors within the international order have indubitably contributed to the defensive and cautious attitude the ASEAN states display when faced with external pressures on human rights. This chapter traces how the international human rights system in the recognisable form that exists today began to arise from the concerns of certain powerful states, how it continued to grow and spread throughout the world community, and the subsequent establishment in its present form within the United Nations (UN) framework and regional set-ups. Comparisons between the international and regional systems with the human rights norms accepted and practised in the ASEAN region will enable a better understanding of the latter’s notion of human rights, as well as illustrate how the ASEAN model developed from the international framework while simultaneously putting in place measures to differentiate itself from the global system in order to emphasise its different priorities. As will be seen in the subsequent chapters, each ASEAN state has its own level of acceptance for international human rights. This could differ from to the ‘national’ concept, if any, of the human rights protections found in the constitutions, and other domestic laws and policies. The ‘Asian values’ argument was hence only one particularly voluble manifestation of a longstanding grudge against perceived undermining of the South by the richer and more powerful states of the North. The acceptance of international human rights by ASEAN states remains fairly ambivalent on the domestic level because of other contending national interests and the need to maintain amicable foreign relations. Nonetheless, there has been increasing explicit, if superficial, support for human rights through the ratification of treaties and other state actions in multilateral forums. Few government officials would now regard human 3

Suzannah Linton, ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed ASEAN Commission on Women and Children’, 30 Human Rights Quarterly (2008) 436.

26

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rights as being outside of the state agenda, even if they do share views similar to Singapore’s Minister Mentor, Lee Kuan Yew, in that development ought to precede human rights.4 To begin, the next section will briefly describe the pre-modern foundations of human rights from its beginnings in the protection of aliens and minority groups. The third section will illustrate the tension between the rise of international human rights and state reluctance to diminish the powers of sovereignty in the drafting of the UN Charter and the Bill of Rights. It will be seen that although universal characteristics can be attributed to human rights, the modern institution of human rights arose primarily as a Western liberal construct in which states subscribing to other ideologies had little say, except in the particular matters of decolonisation and self-determination. This was all the more true with regard to the Southeast Asian nations as their voices were relatively muted as newly independent, poor, developing states. It was also within this period that the roots of resentment against ‘human rights as cultural imperialism’ were formed due to political doublestandards in favour of the developed states of the Northern hemisphere against the developing nations of the South. The chapter then goes on to examine human rights amid the Cold War right up to the present. Within this timeframe, there was the rise of unilateral human rights promotion in the 1970s where developed nations began to make foreign aid packages conditional upon respect for civil liberties and democratic reforms. This intensified the developing countries’ resentment; and in Asia, it culminated in the backlash seen in the Bangkok Declaration and the ‘Asian values’ debate, where tied aid was denounced and preferences for socio-economic development were strongly advocated. At the Southeast Asian level, these sentiments were reiterated in no uncertain terms in the ASEAN Inter-Parliamentary Organisation (AIPO) Declaration on Human Rights signed in Kuala Lumpur in October 1993 (also known as the Kuala Lumpur Declaration 1993).5 Here, the right to development of each country was stressed and the duties of citizens – such as in the freedom of expression – were carefully enumerated.6 The end of the Cold War also brought about greater activity within the UN Security Council in democratic ventures as well as the foray into 4

5

6

‘S’pore Cannot Afford ‘Revolving Door’ Style of Govt: M. M. Lee’, Channel News Asia, 4 April 2007. Kuala Lumpur Declaration on Human Rights, 3 Asian Yearbook of International Law (1994) 496. Ibid., arts. 4, 11–22.

introduction

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international criminal justice with the Rwanda and Yugoslavia tribunals. Human rights, international humanitarian law, and international criminal justice began to grow an even closer nexus, with international criminal law arriving in Southeast Asia with the advent of the hybrid Special Panels for Serious Crimes and the Serious Crimes Unit (SCU) in Timor Leste in 1999 and the Extraordinary Chambers in the Courts of Cambodia (ECCC),7 which are now conducting trials for some of the perpetrators of the massive human rights violations during the reign of the Khmer Rouge during the 1970s.8 The post-11 September 2001 (9/11) ‘war on terrorism’ also brought with it serious complications to the protection of human rights amid the need to uphold international peace and security as counter-terror measures have widely been decried as ‘illegitimate’ tools against human rights. 9/11’s impact has been considerable in the ASEAN region, especially where there are hotspots of Islamic radicalism and terror cells such as the Jemaah Islamiyah. States have accelerated their anti-terror modalities in the hope of eradicating these threats to national and regional peace, security, and development.9 To add to the complexity, the vested interests of big powers, such as the US, have had to be considered on top of the tension between human rights and security.10 Where the sections outlined above attempt to briefly illustrate how human rights are inextricable from the compounded effect of history, politics and realism, the next section goes on to analyse Southeast Asian reactions to these political and legal developments in the international 7

8

9

10

Law on the Establishment of the Extraordinary Chambers (with inclusion of amendments as promulgated on 27 October 2004), NS/RKM/1004/006. For information on the Extraordinary Chambers in the Courts of Cambodia (ECCC), see www.eccc.gov.kh/english. The highly publicised first trial of the ECCC concluded on 26 July 2010. See Kaing Guek Eav “Duch”, Case File No. 001/18–07–2007-ECCC/TC, Judgment of 26 July 2010. Simon S. C. Tay and Tan Hsien-Li, ‘Southeast Asian Cooperation on Anti-Terrorism: The Dynamics and Limits of Regional Responses’, in Victor V. Ramraj, Michael Hor, and Kent Roach (eds.), Global Anti-Terrorism, Law and Policy (Cambridge/New York: Cambridge University Press, 2005), 399; Zachary Abuza, ‘The Social Organization of Terror in Southeast Asia: The Case of Jemaah Islamiyah’, in Thomas J. Biersteker and Sue E. Eckert (eds.), Countering the Financing of Terrorism (New York: Routledge, 2007), 63. See e.g., William Tow, ‘Post Cold War US Foreign Policy in Asia’, and Shamsul Khan, ‘“Islamic Fundamentalism” in the Asia-Pacific Region: Failures of Civil Societies or Backlash against the US Hegemony?’, in Purnendra Jain, Felix Patrikeeff, and Gerry Groot (eds.), Asia-Pacific and a New International Order: Responses and Options (New York: Nova Science Publishers, 2006), at 91–108 and 71–88 respectively; Evelyn Goh, ‘Hierarchy and the Role of the United States in the East Asian Security Order’, 8 International Relations of the Asia-Pacific (2008) 353; Amitav Acharya and Tan See Seng, ‘Betwixt Balance and Community: America, ASEAN, and the Security of Southeast Asia’, 6 International Relations of the Asia-Pacific (2006) 37.

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order with respect to human rights. Here, the causes of Southeast Asian aversion to the human rights discourse and its tepidity in establishing a fully fledged regional rights system in AICHR will be unravelled. At a more general level, it also puts forth the proposition that the longstanding Southeast Asian reticence is not novel. It merely reflects the attitude of Western states when human rights were first broached after the Second World War. Southeast Asian states’ behaviour and preference for sovereignty follow quite closely the traditional liberal realpolitik model of international relations.

Pre-modern foundations of international human rights: the conspicuous exclusion of coloured peoples The seventeenth and eighteenth century documents the British Bill of Rights of 1689, the French Declaration of the Rights of Man and Citizen of 1789, and the American Declaration of Independence of 1776 have often been credited as the first human rights instruments.11 These domestic charters have contributed principles that are familiar to modern day international human rights norms. These include the possession of inherent rights by virtue of a person’s status as a human being (as opposed to being conferred as a ‘privilege’ by the ruler), the limitation of the rights of the state and monarch, and the non-deprivation and non-interference of these ‘freedoms’ by the state. Above all, the rule of law was expected to prevail in all situations and all were subject to it for nobody was to be above the law and procedural fairness was strongly imposed.12 These ‘primitive’ precursors of international human rights were confined to the civil-political variety and applicable only in the domestic sphere.13 However, these protections gradually advanced onto the international domain through discrete socio-political causes such as the protection of aliens, humanitarian intervention, the anti-slavery movement, and the laws of war.14 In particular, the doctrine of the protection of aliens was 11

12 13

14

See e.g., Micheline R. Ishay (ed.), The Human Rights Reader: Major Political Writings, Essays, Speeches, and Documents from the Bible to the Present (New York: Routledge, 1997). The British Bill of Rights at 91–2; American Declaration of Independence at 127–9, and the French Declaration of the Rights of Man at 138–9. Ishay (ed.), ibid. Sarah Joseph, Jenny Schutz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (New York: Oxford University Press, 2004, 2nd edn.), at 4–5. Louis Henkin, The Age of Rights (New York, Oxford: Columbia University Press, 1990), at 13–15.

pre-modern foundations of human rights

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vital to expanding the scope of ‘primitive’ human rights among the society of nations. In the traditional international order, state sovereignty was paramount – only states had legal personality, thus international law regulated the relations solely between state actors.15 Considered as state subjects, individual human persons had neither status nor claim on the international plane except through their national state.16 Moreover, the treatment of nationals was entirely an internal affair as obligations owed by states to individuals were taken to be obligations owed to the corresponding state by virtue of his/her nationality. If a state mistreated its own people, the matter was within territorial jurisdiction and other states were not privy to interfere.17 This formed an anomalous situation whereupon the domestic abuse of nationals was an internal affair, while the same states would be offended if their own nationals suffered under foreign governments because of the perceived injury to the state personality vested in their citizens. Without legal protections for nationals and alarmed by the egregious abuse by states against their minority populations, support for humanitarian intervention grew in the nineteenth century. This limited exception to absolute sovereignty was invoked largely against the Ottoman Empire in the 1800s and culminated in treaties such as the Treaty of Paris in 1856 and Treaty of Berlin in 1878 for the protection of Christian minorities against massacres by Ottoman armies.18 The regime of minorities’ 15

16

17

18

See e.g., Mark W. Janis, ‘Sovereignty and International Law: Hobbes and Grotius’; and Louis Henkin, ‘The Mythology of Sovereignty’, in Ronald St. John Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), 391–400 and 351–8 respectively. See nationality of claims in Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 1997, 4th edn.), at 562; and the treatment of aliens in Rebecca M. M. Wallace, International Law (London: Sweet and Maxwell, 1997, 3rd edn.), at 180. Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, Vol. 1 (UK: Longman Group, 1992, 9th edn.), at 16–17, 847–9. Also, Thomas Buergenthal, International Human Rights in a Nutshell (Minnesota: West Publishing Co., 1995, 2nd edn.), at 2–3; and Henkin (1990), supra note 14, at 14. Paul Sieghart, The International Law of Human Rights (Oxford: Oxford University Press, 1983), at 11–13. These agreements on minority protection were also an extension of the freedom of religion and religious toleration hammered out in earlier centuries such as those that guaranteed the rights of Catholics in the Treaties of Ghent (1713) and Paris (1763) when the French colonies of Acadia and Quebec were ceded to the Protestant British crown. In the Final Act of the Congress Vienna, Prussia, Russia, and Austria undertook to respect Polish rights within their territories. Other treaties involved the Ottoman Empire and its successor states for the protection of certain minorities. See John Humphrey, No Distant Millennium: The International Law of Human Rights (Paris: UNESCO, 1989), at 27–8.

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protection continued and culminated in the Minority Treaties that were concluded by the League of Nations after the First World War to protect the rights of linguistic and ethnic minorities within the newly created states like Albania, Czechoslovakia, Hungary, and Romania.19 Similarly, as the colonies of those who lost the First World War passed into the hands of the victors, the Mandates System of the League of Nations was set up to ensure that the new administrators would govern these lands fairly so ‘that the well-being and development of peoples [formed] a sacred trust of civilisation’.20 At the same time, the dignity of human labour was gaining credence. The Treaty of Versailles established the International Labour Organization (ILO) to improve the working conditions of men, women and children.21 Also, the anti-slavery movement that had begun in the early nineteenth century by the British government and saw a breakthrough in 1885 when the General Act of the Berlin Conference on Central Africa forbade slave trading under international law and the General Act of Brussels was signed by a significant number of states in 1890, was continued by the League of Nations.22 This led to the 1926 Slavery Convention which proclaimed the abolition of slavery.23 Unfortunately, unlike the General Act of Brussels 1890, this lacked provisions for implementation and enforcement to be truly effective.24 Human rights also found their way onto the battlefield.25 The vicious fighting in the Napoleonic, Crimean, and Franco-Austrian wars of the 19 20 21

22 23 24

25

Sieghart, ibid., at 13. Buergenthal, supra note 17, at 8; and Henkin (1990), supra note 14, at 14–15. Lee Swepston, ‘The International Labour Organization and Human Rights Access to the ILO’, in Gudmundur Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Mo¨ller (The Hague: Martinus Nijhoff, 2001), 485 at 486–7. Sieghart, supra note 18, at 13–14. Slavery Convention, 25 September 1926 (entry into force 9 March 1927). Sieghart, supra note 18, at 13–14; and Humphrey, supra note 18, at 27–31. The 1926 treaty was amended by a protocol in 1953 to put it under the authority of the UN. The 1948 UDHR prohibited slavery and the slave trade ‘in all its forms’ as well as both the 1966 Covenants, and the ECHR. By then, slavery would seem to be outlawed by customary international law. Most importantly, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery prohibited all sorts of practices similar to slavery such as debt bondage and serfdom. Although humanitarian law or the law of armed conflicts is not technically ‘human rights law’, its evolution does portray the ‘humanisation of international law’ and is increasingly considered as ‘the human rights component of the laws of war’. See an excellent exposition on this topic by Theodor Meron, ‘The Humanization of Humanitarian Law’, 94(2) American Journal of International Law (2000) 239.

pre-modern foundations of human rights

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nineteenth century had caused widespread devastation across Europe. Henri Dunant thus initiated the International Committee of the Red Cross (ICRC) in a bid to reduce human suffering during warfare.26 The Swiss government followed up with the 1864 Geneva Convention on the Amelioration of the Condition of the Wounded on the Field of Battle which sought to alleviate the suffering caused by war and to regulate the treatment of prisoners of war.27 This first treaty bound the state parties to respect the immunity of military hospitals and medical staff, to care for the sick and wounded, and to respect the emblem of the Red Cross. Such protections were extended to maritime warfare at the First and Second Hague Peace Conferences in 1899 and 1907.28 Most of their provisions have since been recognised as customary international law and superseded by the four Geneva Conventions of 1949 and their additional protocols where these international humanitarian principles help to regulate armed conflict.29 As seen above, the human rights consciousness which began in the seventeenth and eighteenth centuries, and extending gradually into the anti-slavery and labour movements, minority protection and humanitarian standards in armed conflict, all helped to protect certain groups of people from abuses. Yet, they remained confined to specific causes with a distinct gender and racial bias. Coloured peoples, like the Asians and 26 27

28

29

For the history of the ICRC, see www.icrc.org/Web/eng/siteeng0.nsf/htmlall/57JNVQ. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864, at www.icrc.org/ihl.nsf/full/120?opendocument. For the beginnings of international humanitarian law and the ICRC’s role, see www.icrc.org/web/eng/ siteeng0.nsf/html/57JNVP. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 85; Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 135; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (entry into force 7 December 1978), 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), 8 June 1977 (entry into force 7 December 1978), 1125 UNTS 609; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005. See also Hilaire McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare (Aldershot, UK/Brookfield, WI: Ashgate/Dartmouth, 1998, 2nd edn.), at 17–22. For modern developments in the laws of armed conflict, see McCoubrey, ibid., at 22–34.

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Africans, and women remained out of its protective ambit. At this juncture, this version of human rights could not be considered truly ‘international’ as only certain states were party to these treaties and, ostensibly, had not yet evolved into custom. Moreover, the idea of universally applicable human rights and notions of equality had not emerged given that colonialism continued to persist. Most importantly, the principle of sovereignty remained immutable such that the sole subject of international law continued to be the state while the individual person remained largely without rights or consideration in international relations.

The advent of modern international human rights: the UN Charter and Bill of Rights It was not until the Second World War that the traditional international order was upset. Thereafter, universal human rights came into being after much difficulty.30 The need for such a change was felt in three distinct sectors – the Allied Powers, the nationals belonging to the Allied states, and the colonial and oppressed peoples. The widespread and profound devastation to human beings, world economy, and social-civic order during the war awakened the realisation of global interdependence. This was especially so as cooperation with other states was needed for economic and market development in post-war reconstruction as well as the urgency for domestic and international security in the face of nuclear proliferation.31 Moreover, the Allied Powers were confronted with the guilt of failing to prevent Hitler’s atrocities. Despite vehement condemnation of Hitler’s actions, the Allied Powers failed to relax immigration restrictions or grant asylum to refugees fleeing persecution, resulting in the perishing of eleven million people.32 Haunted by such 30

31 32

Jan Herman Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’, 14(4) Human Rights Quarterly (1992) 447. Ibid. In this segment, notable commentators on the historical development of human rights are Johannes Morsink, John Humphrey, Thomas Buergenthal, and Paul Gordon Lauren. I have chosen to rely greatly on Lauren’s updated and comprehensive account. See Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 2003, 2nd edn.), at 142–4. Also, Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania Press, 1999); and Thomas Buergenthal, ‘International Human Rights in a Historical Perspective’, in Janusz Symonides (ed.), Human Rights: Concept and Standards (Aldershot, UK; Burlington, VT: Ashgate; Paris: UNESCO, 2000), 3 at 3–30.

the advent of modern international human rights

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tragedy, the Allied Powers were determined to maintain international peace and security through the establishment of a supranational institution – the United Nations.33 Running concurrently with the Allied Powers’ post-war considerations, the resolve for racial equality and decolonisation was gaining momentum in many parts of the world. Asian, African, and other nonwhite and colonial peoples revolted against the injustice of having to endure racist oppression and then made to fight the colonists’ wars. There was urgency to claim equal status and privileges on the international plane. This fervour was particularly acute among the Asians because Japan had furthered its imperialistic agenda in the Asia-Pacific theatre of war in the guise of freeing them from foreign domination. Watching the humiliating defeat of their colonial masters by the Japanese army intensified their desire for equality and freedom.34 Similarly, the anti-racism movement in the US strengthened when black Americans, having fought alongside the whites in the war, refused to be subjugated under the unfair status quo when they returned home.35 As a result, expectations were high when the formation of the UN was discussed at Dumbarton Oaks in 1944. For administrative purposes, the Allied Powers decided to establish the UN Security Council – a body chaired by the victors of the Second World War – to watch over world peace. Adjoining arms of the UN – the General Assembly, Economic and Social Council, and the International Court of Justice – were also to be set up.36 As to institutional aspirations, however, realpolitik had rapidly overcome whatever post-war altruistic fervour the Allied Powers might have possessed. They were unwilling to accede to requests for equality and self-determination as foundational principles of the new world order. China’s proposal to ‘support the right of self-determination and uphold the principle of equality of all states and races’ was roundly condemned.37 The Allied Powers knew that such a statement would be detrimental to their interests as the British would inevitably be forced to give up their colonies, the US to recognise the equal rights of their black population and the Soviet Union would draw flak for their gulags 33 34

35 36

37

Lauren, ibid., at 160. Lauren, ibid., at 143. See also Paul Gordon Lauren, Power and Prejudice: The Politics and Diplomacy of Racial Discrimination (Boulder: WestviewPress, 1996, 2nd edn.). Lauren, supra note 32, at 200. Ibid., at 200. See also the UN history at www.un.org/aboutun/charter/history/dumbarton. shtml. Lauren, ibid., at 161–2.

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(prison camps), forced labour and other forms of state terror within the communist regime.38 To this end, it was agreed that sovereignty would continue to be a bulwark of international relations while the calls for human rights were appeased by limiting them to the social and economic and, as far as possible, couched in implicit terms.39 It was no surprise then when many states, especially the colonised, opposed the dilution of the UN’s aspirations. They echoed New Zealand’s sentiment that there was ‘too much emphasis on Great Powers and no adequate opportunity for small countries . . . to exercise influence or express views . . . no adequate machinery for securing peaceful change and economic justice . . . [In all, it aimed] too low’.40 Backtracking at the level of international relations did not diminish people’s awareness and support for human rights. The millions of Europeans who had suffered when Nazi troops occupied their countries (for instance, France and the Netherlands) were now empathetic towards the oppressed peoples, including those of their colonial empires.41 Moreover, smaller nations and non-governmental organisations (NGOs) continued an active lobby in defiance of the Allied Powers. These stoked up great public fervour and created considerable pressure for their governments. As Louis Henkin observed, the war generally produced three distinct sentiments: (1) First, ‘an assertion of fact’ that human beings could no longer ignore the suffering of other human beings; (2) Second, ‘a moral statement’ that the ‘suffering of human beings violated a common morality’ such that people are ‘morally obliged’ to act against such suffering; (3) Third, ‘an international political statement’ that governments would try to stop such misdeeds through the international legal order or diplomacy.42 Thus, realpolitik did not completely overrule the Allied Powers’ intention for international peace and security through multilateral cooperation and human rights. Franklin D. Roosevelt, the US president, who had once proclaimed ‘a world founded upon [the] four essential freedoms’ of speech and expression, religion, and freedom from want and fear in 1941,43 exhorted again when Allied victory was imminent in 1945,

38 42

39 40 41 Ibid. Ibid., at 163. Ibid., at 168. Ibid., at 176. 43 Henkin (1990), supra note 14, at 16. Buergenthal, supra note 14, at 22.

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‘We shall have to take the responsibility for world collaboration, or we shall have to bear the responsibility for another world conflict’.44 Ultimately, the Allied Powers had little choice but to acquiesce to the UN Charter explicitly supporting ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’,45 as well as ‘respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’.46 The acknowledgment that social and economic rights were inseparable from living with an adequate standard of human dignity also led to the elaboration of such rights in Article 55, which called upon the UN, through the Economic and Social Council, to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development’.47 Additionally, the Charter recognised the rights of indigenous peoples, charging the signatory states of the Declaration Regarding Non-Self-Governing Territories to ‘promote . . . the well-being of the inhabitants of these territories’.48 The International Trusteeship System was also created to advance the political, social, economic and educational standing of the peoples of the trust territories for the ‘progressive development towards self-government or independence’.49 Unfortunately, this held a double-standard as it was only applicable to the former colonies of the Axis Powers. Britain, France, and other Allied states could continue to manage their colonial empires, while the US could take over all the former Japanese territories in the Pacific and hold them in trust.50 In all, Great Power politics prevailed. It was ironic that the Allied Powers remained seemingly ignorant that their desire for sovereignty contradicted their acquiescence of human rights.51 In truth, the UN Charter was not intended to uphold human rights but was merely a collective security arrangement to prevent another world war.52 Nonetheless the Charter 44 45 46 47

48

49 50 52

Lauren, supra note 32, at 177. Charter of the United Nations, 24 October 1945, 1 UNTS XVI, at Preamble. Ibid., art. 1(2). Art. 1(3) elaborates slightly on the commitment to human rights. Ibid., art. 55(a). Chapter IX of the Charter outlines the measures necessary for rights protection by facilitating international economic and social stability. Ibid., art. 73. See ibid., Chapter XI: Declaration Regarding Non-Self-Governing Territories. Ibid., A.76(b). See ibid., Chapter XII: International Trusteeship System. 51 Lauren, supra note 32, at 191. Ibid., at 193. Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford, New York: Oxford University Press, 1997), at 6.

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was an important first step for international human rights as proponents latched onto the protections indicated in the Charter and claimed it imposed legal and moral obligations upon states to fulfil human rights aspirations.53 Right from the start, the General Assembly was a formidable champion of human rights, pronouncing resolutions against genocide, sex discrimination, and the right to information, all in its first session in 1946.54 Mindful that certain standards needed to be met for living with dignity in accordance with Charter stipulations, the Assembly also called upon the UN specialised agencies to give effect to social and economic rights. The United Nations Children’s Fund (UNICEF), United Nations Educational, Scientific and Cultural Organization (UNESCO), International Labour Organization (ILO), and Food and Agriculture Organization (FAO) were mandated to take specific action with regard to the welfare of children, education and the sciences, world health and humane labour policies, as well as international food and agricultural standards.55 This first session marked a further turning point for international human rights in two respects – non-discrimination and the international Bill of Rights. First, during the forum, India publicly accused South Africa of discriminating against citizens of Indian descent. It then exhorted all states to act responsibly to stop this denigrating practice. Although powerful states like the US and UK backed South Africa’s position that the treatment of nationals was an internal affair, the members of the General Assembly garnered enough votes for a two-thirds majority in support of India’s motion.56 The resultant resolution signalled that a significant proportion of the world community would no longer tolerate state abuse of nationals – the myth that the treatment of nationals as purely a matter of domestic jurisdiction was now officially dispelled. Second, the General Assembly also decided to begin proceedings for an international Bill of Rights. 53 54

55 56

Lauren, supra note 32, at 200. Ibid., at 206–8. For a full list of resolutions concluded at the first session of the General Assembly, see www.un.org/documents/ga/res/1/ares1.htm. Lauren, supra note 32, at 209. For an exposition on India’s action against racial discrimination in South Africa, see collection of papers by E. S. Reddy (former head of the United Nations Centre against Apartheid) at www.anc.org.za/un/reddy/index.html#COLLECTIONS. See also Lauren, ibid., at 205–6; Treatment of Indians in the Union of South Africa, 8 December 1946, GA Res. 44(I).

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This task was entrusted to the newly created Commission on Human Rights and chaired by Eleanor Roosevelt.57 Such an immense project of trying to unite different peoples of disparate creeds in a common pronouncement of what human rights comprised naturally faced many conflicting opinions. A proper representation of views was imperative as the essence and source of human rights involved sensitive issues of philosophy, religious beliefs and culture. The Commission on Human Rights struggled with translating terms with metaphysical connotations like ‘reason’, ‘inalienable’, and ‘morality’ into substantive norms of the international order.58 It was also propounded that human rights had corresponding duties – there could not be an imbalance of one over the other. Confucian and Islamic views, among others, were also contributed by state representatives. For instance, Chang Peng-chun voiced his concerns that the treatise ought not to reflect only Western philosophy and political thought but that Confucian thought should also be explored.59 After a prolonged intellectual discourse involving both Western and Eastern perspectives, a certain ‘core’ of principles was decided upon as the basis for the institutionalisation of human rights.60 This was not meant to resolve the juxtaposed doctrines but to recognise that mankind held essential commonalities which must be encoded and protected through an international Bill of Rights.61 Doctrinal hurdles aside, realist preferences continued to hamper the process. There was a lot of argument as to what form the bill would take. Those who favoured sovereignty and thus a non-binding 57

58 59

60

61

Lauren, supra note 32, at 210. See also Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). Lauren, supra note 32, at 214. Chang Peng-chun was a member of the Peoples’ Political Council of China under Chiang Kai-Shek’s rule. See Susan Waltz, ‘Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights’, 23 Human Rights Quarterly (2001) 44, at 59, note 69. See also John P. Humphrey, Human Rights and the United Nations: A Great Adventure (New York: Transnational Publishers, 1984), at 29. For the role of Islamic states, see Susan Waltz, ‘Universal Human Rights: The Contribution of Muslim States’, 26 Human Rights Quarterly (2007) 799. Lauren, supra note 32, at 215–17. For more on the UNESCO Committee on the Philosophic Principles of the Rights of Man and the debate on the sources of human rights and human nature, see Tore Lindholm, ‘Article 1’, in Gudmundur Alfredsson and Asbjorn Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement (Boston: Kluwer, 1999), 41 at 46–9; 55–62. Lauren, supra note 32, at 215–17.

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agreement were deadlocked against those who lobbied for a legally enforceable instrument. Finally, in 1947, the Commission on Human Rights ruled that the bill would be in three parts – a declaration followed by a binding treaty, with implementation measures to follow thereafter.62 When the draft declaration was presented at the 1948 session of the General Assembly, international delegates repeated their philosophical and cultural objections as they scrutinised the document.63 After further amendment, and much to everyone’s surprise and relief, it was passed successfully with forty-eight votes, eight abstentions, and no objections.64 The Universal Declaration of Human Rights (UDHR) hence came into being. It was deemed a tremendous moment for humankind as now an array of civil, political, economic, and social rights – including the right to life and liberty, fair trial and due process of the law, adequate standard of living, food, work, and housing – existed to protect human well-being.65 The effect of the UDHR proved influential as many states, keen to safeguard a standard of decency in the treatment of human beings, included its principles into their constitutions and laws.66 It also inspired a number of human rights instruments such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the four Geneva Conventions of 1949 pertaining to wounded soldiers on the battlefield, wounded and shipwrecked at sea, the treatment of prisoners of war, and finally the treatment of civilians under enemy control; and 62

63

64

65

66

Ibid., at 223; Tom Farer and Alice Gaer, ‘The UN and Human Rights: At the End of the Beginning’, in Adam Roberts and Benedict Kingsbury (eds.), United Nations, Divided World: The UN’s Role in International Relations (Oxford, New York: Oxford University Press, 1993), 240 at 248–52. For a detailed account of the long-drawn drafting process, see Morsink, supra note 32, at 1–35. The eight abstentions were Saudi Arabia, the South African Union, Byelorussia, Poland, Czechoslovakia, Ukraine, USSR, and Yugoslavia. The communist states had maintained a unitary voice based on ideological opposition throughout the drafting process of the UDHR and it was unsurprising that they had opted out at the final vote. As for South Africa, it knew that if it supported the UDHR, it would enable the UDHR to condemn its apartheid practices. Saudi Arabia abstained from voting on two counts. The first was that the clause on marriage rights (art.16) conflicted with Islamic marriage laws, while the second was based on the disagreement with art. 18 on the right of people to change their religion and beliefs. For an account on the abstentions, see Morsink, ibid., at 21–7. See Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 at 71 (1948). E.g., Haiti, Indonesia, and Libya. See Lauren, supra, note 32, at 234.

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the 1951 Convention Relating to the Status of Refugees.67 These treaties instituted in the aftermath of the war had a direct relationship to the sufferings during that period, especially during the Holocaust. Also, in recognition of the female contribution to the war effort, women’s suffrage was acknowledged in the 1952 Convention on the Political Rights of Women.68 While the development of human rights progressed, power politics exacerbated. Without a common enemy once the war ended, the two Great Powers had taken to petty sniping. The US accused the Soviets of disregarding civil liberties because of the cruel oppression of its nationals, the lack of due process and fair trial, and the limitations on the freedoms of religion and information. The Union of Soviet Socialist Republics (USSR) retaliated by humiliating the US on its hypocritical race policies against the black population and the American contempt for social and economic rights through its favouring freemarket capitalism.69 As bilateral relations degenerated, both sides competed for the conversion of new and developing states to their respective ideologies of democratic capitalism and communism. As developing states became partial to the socialist ideals of socioeconomic priorities in state development and supported the communist campaign against colonialism, the situation became such that the US and its allies began to fear the growing influence the pro-socialist/ communist faction had in the General Assembly.70 With the rising tide of McCarthyism, some members of the US Congress had also begun to see socio-economic rights as an extension of socialistcommunist ideology.71 With the US and USSR championing their ‘pet’ causes, it was no surprise that the division between the civilpolitical and economic-social rights erupted. What was intended as a single human rights treaty split into two – separate drafts for the International Covenant on Civil and Political Rights (ICCPR) and

67

68

69 71

Buergenthal, supra note 17, at 58–60 and 248–72. For the Geneva Conventions and their Additional Protocols, see supra note 28; Convention Relating to the Status of Refugees, 28 July 1951 (entry into force 22 April 1954), 189 UNTS 150. Convention on the Political Rights of Women, GA Res. 640(VII), 20 December 1952 (entry into force 7 July 1954), 193 UNTS 135. 70 Lauren, supra note 32, at 219–20. Ibid., at 236. David P. Forsythe, Human Rights in International Relations (New York: Cambridge University Press, 2000), at 41. For more on the anti-communist movement in the US, see Albert Fried, McCarthyism: The Great American Red Scare – A Documentary History (New York: Oxford University Press, 1997).

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International Covenant on Economic, Social, and Cultural Rights (ICESCR) had to be negotiated, thus slowing down the conclusion of the international Bill of Rights.72 During this period, however, the process of decolonisation had already been set in motion. The struggle for freedom and equality born during the war was now given further impetus by the UDHR. With reference to the UDHR, states such as Burma, India, Indonesia, and the Philippines explicitly requested that the Commission on Human Rights discuss the right to self-determination for all peoples.73 Their efforts marked the period of decolonisation of Africa and Asia in the 1950s and 1960s. The US gave up control over the Philippines, while the UK released India, Burma, and Pakistan from its empire.74 Those who had not been readily given their independence continued to fight for selfdetermination. Indonesia battled against the Dutch, securing independence in 1949, while the French Indo-China Empire collapsed in the 1950s. Malaya ceased being a British colony in 1957.75 With the drastic influx of new and developing states into the General Assembly, this majority bloc sought to propel the decolonisation movement further by passing the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960.76 This movement proved to be such a formidable force that when South African police massacred black civilians at Sharpeville in 1960, twenty-nine African and Asian states rose up and called for the Security Council to take action against apartheid through economic and diplomatic sanctions.77 Remarkably enough, the momentum for anti-racial discrimination grew such that even the bipolarised General Assembly was for once united on eradicating apartheid – the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was signed in 1965.78 A year later, two international covenants – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on 72 74

75 76

77

78

73 Lauren, supra note 32, at 238. Ibid., at 238–9. Robert Johnson, British Imperialism (Basingstoke, Hants.: Palgrave Macmillan, 2003), at 185–203. Lauren, supra note 32, at 240. Ibid., at 243. Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), UN Doc. A/4684 (1961), 14 December 1960. E. S. Reddy, Chronology of the UN and the Struggle Against Apartheid, at www.undp.org. za/docs/apartheid/un-chron.html. Lauren, supra note 32, at 243–4. International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 21 December 1965 (entry into force 4 January 1969), GA Res. 2106 (XX), Annex, UN Doc. A/6014 (1966).

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Economic, Social and Cultural Rights (ICESCR) – were signed.79 These treaties basically elaborated upon the rights enumerated in the UDHR and provided more specific protections. Within its fifty-three provisions, the ICCPR reinforced the right to self-determination and non-discrimination. It declared that all states must respect and ensure: [T]o all individuals within its territory and subject to its jurisdiction, all the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.80

It also detailed the right to life and stipulated limitations on the death penalty; torture or to cruel, inhuman or degrading treatment or punishment; slavery; right to liberty and security of person; presumption of innocence and due process of the law; liberty of movement, including the entry and exit of his own state; freedom of residence; right to privacy and family, and respect for personal honour and reputation; right to freedom of thought, conscience and religion; the prohibition on national, racial or religious hatred that contributes to discrimination, hostility or violence; peaceful assembly and association; right of men and women of marriageable age to marry and to found a family; and the right of children to nationality and protections as are required by his status as a minor.81 With the exclusion of non-derogable rights like torture, all other rights could be limited in times of public emergencies.82 It must be noted, too, that all the civil and political rights in the ICCPR took the form of ‘freedoms from the state’ and imposed an ‘immediate’ and ‘negative’ duty on governments to refrain from abusing their citizens and those under their jurisdiction – a form similar to the seventeenth- and eighteenth-century treatises. At the same time the ICCPR was signed, its Optional Protocol allowing individual petitions of rights abuses became open for signature.83 This elevated the protection of civil-political rights to an even higher level – that of individual petition – thereby increasing the recognition of the human individual on the international plane. 79

80 83

International Covenant on Civil and Political Rights (ICCPR), 16 December 1966 (entry into force 23 March 1976), GA Res. 2200A (XXI), UN Doc. A/6316 (1966). International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966 (entry into force 3 January 1976), GA Res. 2200A (XXI), UN Doc. A/6316 (1966). 81 82 ICCPR, ibid., art. 2. See generally the ICCPR. ICCPR, supra note 79, art. 4. Optional Protocol to the International Covenant on Civil and Political Rights (OP1ICCPR), 16 December 1966 (entry into force 23 March 1976), GA Res. 2200A (XXI), UN Doc. A/6316 (1966).

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Like the ICCPR, the ICESCR also set forth the principles of nondiscrimination and self-determination at the outset of its thirty-one provisions.84 However, departing from the way the civil and political rights were enforced immediately, the ICESCR took a progressive stance. Recognising that developing nations needed time to achieve these standards, it declared that states were to ‘take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant’.85 It went on to enunciate the right to work and the right to favourable conditions of work; the right to form and join trade unions; social security; protections for mothers and children; adequate standard of living for himself and his family, including adequate food, clothing and housing; freedom from hunger and right to health; and the right to education; as well as full participation in social and cultural life.86 As with the ICCPR, limitations were also permitted if ‘determined by law [and] only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’.87 This could be invoked against the free functioning of trade unions or the right to strike, if they were against the ‘interests of national security or public order or for the protection of the rights and freedoms of others’ or not ‘exercised in conformity with the laws of the particular country’.88

Developments after the Bill of Rights: from the middle of the Cold War to the twenty-first century After the Bill of Rights was enacted, the human rights movement was continued by various discrete groups which acted to circumvent the Security Council deadlock during the Cold War. As the following analysis of this period will show, this involved regional organisations and unilateral initiatives as well as non-governmental outfits. Looking at (1) the UN system; (2) UN specialised agencies; (3) regional organisations; (4) unilateral and multilateral political initiatives; and (5) nongovernmental organisations (NGOs) in turn, we find that their efforts helped to consolidate the perceptions and practice of human rights and international law. Partisan interests, realism and balances of power nevertheless continued to be brought into play. The advent of practices 84 86

85 ICESCR, supra note 79, art. 1. Ibid., art. 2. 87 88 Ibid., arts. 6–15. Ibid., art. 1. Ibid., art. 8(1)(c) and (d).

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like twinning human rights promotion with democracy did not go down well with the developing states nor did the tying of aid packages with conditions of human rights reform. The developing states resented the impinging of their sovereignty and believed that human rights were merely a tool of Western imperialism. This view was further reinforced by hypocritical foreign policies that punished some states yet shielded other human rights abusers. For instance, the preferential treatment the US gave the autocratic regimes in Indonesia and Iran during the Cold War despite vociferously championing democracy.89 Developing states also resented that the rights which powerful states preferred always took precedence over their priorities.90 It made for the perception that ‘Western’ rights were always better than other principles.91 This deepened the bias the Southeast Asian states – which were later to form ASEAN – carried within them against human rights.

The UN system Within the UN system, human rights circumvented the Security Council deadlock during the Cold War to progress through other channels, most notably, the General Assembly. Since then, the General Assembly remains a relatively major figure in deciding international human rights norms.92 It has the plenary powers to establish offices such as it did for the Office of the High Commissioner for Refugees (UNHCR) in 1951 and the Office of the High Commissioner for Human Rights (OHCHR) in 1993 after the Vienna Conference.93 It also oversees the Economic and 89 90

91

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93

Forsythe, supra note 71, at 130–1. See for example, Singapore Government Press Release, Singapore Minister for Foreign Affairs, Wong Kan Seng: Statement at the World Conference on Human Rights, Vienna, 16 June 1993. To be sure, such views continue to rear their heads in incidents like the December 2005 clash over the publication of the Danish cartoons on Prophet Muhammad saw the ‘Western’ bulwark of ‘free speech’ pitted against the Muslim nations’ calls for respect for religion and the responsibility in self-censorship. See e.g., ‘Cartoons of Prophet Met with Outrage’, Washington Post, 31 January 2006. Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, Text and Materials (Oxford: Oxford University Press, 2000, 2nd edn.), at 598; Antonio Cassese, ‘The General Assembly: Historical Perspective 1945–89’; John Quinn, ‘The General Assembly into the 1990s’, both in Philip Alston (ed.), The United Nations and Human Rights: A Critical Appraisal (Oxford, Clarendon Press, 1992), 25–54 and 55–107 respectively. For a summary overview of UN Charter-based institutions and their roles in human rights protection, see Steiner and Alston, ibid., at 597–602.

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Social Council (ECOSOC) to which the OHCHR is responsible.94 This is a far cry from its humble beginnings in 1947 where it declared itself powerless ‘to take any action in regard to any complaints concerning human rights’.95 The General Assembly therefore is decidedly the UN’s ‘most active organ in the human rights field’, sending forth working groups and special rapporteurs to investigate allegations of ‘thematic’ and country abuses of human rights.96 It also works alongside the Commission on Women and manages the Sub-commission on the Promotion and Protection of Human Rights.97 Of course, all these breakthroughs could not have come about without political lobbying in the General Assembly. During the Cold War, the African–Asian bloc was unwilling to be sidelined by Great Powers. If not for Third World solidarity in the General Assembly, the rights of selfdetermination and non-discrimination would not have evinced. Not content with the triumph of CERD in 1965, the General Assembly scored a further victory by entrenching apartheid as a ‘crime against humanity’. In the 1960s and 1970s, public condemnation was made of apartheid in South Africa, leading to the signing of the Convention against Apartheid in 1973.98 It also reacted vigorously against the Israeli occupation of the West Bank and Gaza and Augusto Pinochet’s 1973 military coup in Chile.99 Furthermore, the ECOSOC was moved to ask the Commission on Human Rights to consider human rights violations in policies of racial discrimination and apartheid. Faced with pressing human rights violations coupled with its inability to make binding decisions as well as the Commission on Human Rights’ lack of competence to investigate abuses, the General Assembly requested that the UN wield greater powers to halt human rights violations anywhere in the world in Resolution 2144 (XXI) in 1966.100 To better enforce human rights, the two 94 95 96

97 98

99

100

Louis Henkin et al., Human Rights (New York: Foundation Press, 1999), at 686. Ibid., at 687. See generally, Philip Alston, ‘The Commission on Human Rights’, in Alston (ed.) (1992), supra note 92, at 126–210. Farer and Gaer, supra note 62, at 257–69. International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973 (entry into force 18 July 1976), GA Res. 3068 (XXVIII), UN Doc.A/ 9233/Add.1 (1973). Philip Alston, ‘The Commission on Human Rights’, in Alston (ed.) (1992), supra note 92, at 157–8. Ibid., at 144. Question of the Violation of Human Rights and Fundamental Freedoms, Including Policies of Racial Discrimination and Segregation and of Apartheid, in All Countries, with Particular Reference to Colonial and Other Dependent Countries and Territories, GA Res. 2144 (XXI) (1966).

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procedures of ECOSOC Resolution 1235 (XLII) in 1967 – where annual public debate of gross violations of human rights would be held; and ECOSOC Resolution 1503 (XLVIII) in 1970 – confidential communications mechanism were introduced.101 However, these two mechanisms did not aid very much and in 2006 the Human Rights Council replaced the Commission on Human Rights and set in place the Universal Periodic Review – a process through which every UN member state’s fulfilment of its human rights obligations and commitments is examined every four years.102 As with the UDHR, many treaties were signed in the wake of the two international covenants. These treaties carried on in the spirit of the International Bill of Human Rights to recognise women’s rights in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979; the denunciation of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1984; the highly supported Convention on the Rights of the Child (CRC) in 1989; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) in 1990. To date, there are nine principal international human rights instruments with their corresponding committee of experts to monitor treaty implementation of state parties.103 Some of the treaties were subsequently 101

102

103

For a summary of the two procedures, see Steiner and Alston, supra note 92, at 612–40. The 1503 confidential communications procedure was reformed during the fifty-sixth session of the Commission on Human Rights in 2000, see www.unhchr.ch/html/menu2/ 8/1503.htm; and ECOSOC Res. 2000/3, UN Doc. E/RES/2000/3 (2000); Lyal S. Sunga, ‘The Special Procedures of the UN Commission on Human Rights: Should They Be Scrapped?’, and Maria Francisca Ize-Charrin, ‘1503: A Serious Procedure’, both in Gudmundur Alfredsson et al. (eds.), supra note 21, 233–78 and 293–310 respectively. Resolution Adopted by the General Assembly, GA Res. 60/251 (Human Rights Council), UN Doc. A/Res/60/251 (2006), See also Human Rights Council at www.ohchr.org/ english/bodies/hrcouncil; Universal Periodic Review at www.ohchr.org/en/hrbodies/ upr/pages/uprmain.aspx. These treaties are: International Convention on the Elimination of All Forms of Racial Discrimination (CERD), GA Res. 2106 (XX), Annex, UN Doc. A/6014 (1966), 21 December 1965 (entry into force 4 January 1969); International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200A (XXI), UN Doc. A/6316 (1966), 16 December 1966 (entry into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights (ICESCR), GA Res. 2200A (XXI), UN Doc. A/6316 (1966), 16 December 1966 (entry into force 3 January 1976); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), GA Res. 34/180, UN Doc. A/34/46 (1979), 18 December 1979 (entry into force 3 September 1981); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), GA Res. 39/46,

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supplemented by optional protocols dealing with specific concerns to further develop a more complete set of safeguards.104 When they came into force, the treaty-based committees began to take action to ensure states respect human rights. However, these were (and still remain) methods of ‘soft enforcement’ based on report-based monitoring, diplomacy and public condemnation. These have often been recognised to be effective to a certain extent as states largely care about their international reputation regarding human rights. Punitive measures, on the other hand, have always been the prerogative of the Security Council. This could take the form of political and economic sanctions105 or forceful measures under Chapter VII of the UN Charter.106 For instance, the Security Council used its Chapter VII powers to impose a mandatory arms embargo against apartheid South Africa.107 After the Cold War, the Security Council was more willing to invoke Chapter VII measures to protect human rights. That said, human rights considerations within the Security Council were not frequently within the ambit of international human rights per se. Instead, they dealt with humanitarian action with regard to conflict situations. The first significant effort to carry out humanitarian operations was the Allied intervention in Northern Iraq to protect the Kurdish population. Resolution 688 found that the repression of the Iraqi Shiite and Kurdish populations had led to a massive build-up of refugees at the Turkish and Iranian borders.108 The impending flood of refugee border-crossings was deemed to threaten international peace and security. The US, UK, and France sent troops to stabilise the

104 105 107 108

UN Doc. A/39/51 (1984), 10 December 1984 (entry into force 26 June 1987); Convention on the Rights of the Child (CRC), GA Res. 44/25, Annex, UN Doc. A/44/49 (1989), 20 November 1989 (entry into force 2 September 1990); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), GA Res. 45/158, Annex, UN Doc. A/45/49 (1990), 18 December 1990 (entry into force 1 July 2003); International Convention for the Protection of All Persons from Enforced Disappearance, GA Res. 61/177, UN Doc. A/RES/61/177 (2006), 20 December 2006; International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CPD), GA Res. 61/106, Annex I, UN Doc. A/61/49 (2006), 13 December 2006 (entry into force 3 May 2008). More information on the international human rights treaties and the treaty bodies can be found at www.ohchr.org/english/law/ index.htm. On the UN human rights monitoring system, see Philip Alston and James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (New York: Cambridge University Press, 2000). See Human Rights Treaty Bodies at www2.ohchr.org/english/bodies/treaty/index.htm. 106 UN Charter, supra note 45, art.41. Ibid., art.42. SC Res. 418 (Apartheid in South Africa), UN Doc. S/RES/418 (1977). SC Res. 688 (Repression of Iraqi civilian population), UN Doc. S/RES/0688 (1991).

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situation such that the Kurdish refugees could return.109 Similarly, the 1992 American intervention in Somalia was of a humanitarian nature as troops were called to undertake relief operations to alleviate the situation of mass starvation – a situation of a threat to the peace that the local government was exacerbating.110 In 1994, the US sent troops under the mandate of Resolution 940 to uphold democracy in Haiti.111 The most significant advance for humanitarian operations was seen in the North Atlantic Treaty Organization’s (NATO) 1999 intervention in Kosovo.112 Although there was no explicit authorisation of the use of force as Russia had consistently indicated opposition to such measures, it was arguable that there was retrospective endorsement of NATO’s bombing campaign to stop the grave violations of human rights in the repression of citizens.113 While the Security Council became more mindful of human rights, it would be naı¨ve to think that rights are the primary motivating factor on which the Security Council operates. Human rights and humanitarian concerns struggle with the concomitant political considerations of the permanent five members. This shortcoming was highlighted starkly when Security Council inertia led to the genocide in Rwanda.114 The US had blocked proposals for Security Council action because it did not want to lose its military personnel like in Somalia where eighteen US soldiers were killed in peacekeeping operations.115 Moreover, although the doctrine of the responsibility to protect (R2P) has evolved, this remains a highly controversial norm as many states are unwilling to recognise the principle of humanitarian (military)

109 110 111 112 113

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Henkin et al., supra note 94, at 716–18. SC Res. 733 (Arms embargo on Somalia), UN Doc. S/RES/733 (1992). SC Res. 940 (Humanitarian situation in Haiti), UN Doc. S/RES/940 (1994). SC Res. 1244 (Situation relating to Kosovo), S/RES/1244 (1999). See e.g., Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, 10(1) European Journal of International Law (1999) 1; and Antonio Cassese, ‘Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, 10(1) European Journal of International Law (1999) 23. Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc. S/1999/1257 (1999). SC Res. 929 (Establishment of a temporary multinational operation for humanitarian purposes in Rwanda until the deployment of the expanded UN Assistance Mission for Rwanda), UN Doc. S/RES/929 (1994). See also Kenneth Rutherford, Humanitarianism under Fire: The US and UN Intervention in Somalia (USA: Kumarian Press, 2008), at 182.

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intervention.116 It briefly seemed to gain strength as an international norm when the US cited human rights and democracy as one of its reasons for the 2003 invasion of Iraq to topple Saddam Hussein’s despotic regime.117 However, the present quagmire of Iraq’s occupation may serve more as a warning to desist from the use of force on humanitarian and human rights grounds, especially if post-invasion stabilisation plans have not been given enough consideration.118 Human rights developments have also profoundly expanded the scope of humanitarian law and international criminal law. The International Military Tribunals of Nuremberg and Tokyo were cautious about impinging upon sovereignty when declaring individual responsibility for ‘crimes against peace’, ‘war crimes’, and ‘crimes against humanity’.119 As the category of ‘crimes against humanity’ was by far the most intrusive as it penalised those who persecuted civilians whether or not such behaviour was sanctioned by the state, the Nuremberg Tribunal was careful to impose a ‘nexus’ requirement that such crimes had to be linked to war crimes or crimes against peace, so as not to step too radically away from the bulwark of sovereignty.120 Conversely, the International Criminal Tribunals of Yugoslavia and Rwanda (ICTY and ICTR respectively), established under Chapter VII powers of the Security Council, drastically widened the ambit of international criminal law. The ICTY extended the understanding of the ‘protected persons’ and ‘grave breaches’ regime which enhanced the safeguards for individuals and civilians.121 In this respect, the establishment of universal 116

117

118 119

120 121

On R2P developments since 2001, see e.g., International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Canada: International Development Research Centre, 2001); General Assembly Debate on the Responsibility to Protect and Informal Interactive Dialogue (July 2009) at www.responsibilitytoprotect.org; The Responsibility to Protect, GA Res. 63/308, UN Doc. A/Res/63/308 (2009); Early Warning, Assessment and the Responsibility to Protect, Report of the Secretary-General, UN Doc. A/64/864 (2010). For a discussion of the law on the use of force post-9/11, see Tarcisio Gazzini, ‘The Rules on the Use of Force at the Beginning of the XXI Century’, 11(3) Journal of Conflict and Security Law (2006) 319. Ibid. See also General Assembly Debate, supra note 116. Diane F. Orentlicher, ‘Genocide and Crimes against Humanity: The Legal Regime’, paper presented at the United States Holocaust Memorial Museum, 8–10 December 1998, in Henkin et al., supra note 94, at 611. Ibid. E.g., Prosecutor v. Dusˇko Tadic´ ‘Prijedor’, Trial Chamber, Opinion and Judgment, Case ˇ elebic´i Camp’, Trial Chamber, No. IT-94–1-T, 7 May 1997; Prosecutor v. Mucic´ et al. ‘C Case No. IT-96–21-T, 16 November 1998. See also Meron, supra note 25; and Christopher Greenwood, ‘International Humanitarian Law and the Tadic´ Case’, 7(2) European Journal of International Law (1996) 265.

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jurisdiction,122 and the codification by the Rome Statute of the International Criminal Court (Rome Statute) that ‘crimes against humanity’ can be committed without the nexus requirement of armed conflicts or under state policy, is a significant breakthrough.123 Moreover, common Article 3 of the Geneva Conventions 1949 also ensures certain fundamental safeguards within non-international armed conflicts. This is further reinforced by Article 8(2)(c) of the Rome Statute which states that ‘war crimes’ constitute ‘serious violations of article 3 common to the four Geneva Conventions’ in ‘an armed conflict not of an international character’. In all, the Rome Statute clearly enunciates what modern international law holds as ‘crimes against humanity’ and ‘war crimes’.124

UN specialised agencies As for the UN specialised agencies like the ILO, FAO, UNESCO, and the World Health Organization (WHO), these autonomous bodies have quietly continued with their role of economic and social rights. They gave tangible assistance to help states realise their human and institutional capacities throughout the Cold War. Today, they have expanded their portfolio. While continuing to provide sustainable development plans based upon human rights, mutual respect and poverty reduction, UNESCO is actively pursuing the Millennium Development Goals (MDGs) to help people out of extreme poverty, achieve primary education in all countries and eliminate gender disparity in primary and secondary education, as well as to help implement national strategies for sustainable development to curb the loss of environmental resources.125 The FAO also helps developing countries to modernise agricultural, forestry and fisheries practices and ensure good nutrition.126 Of special mention would be the WHO and the ILO. The former has been active in promoting world health, even coming up against 122

123

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125 126

See e.g., Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), at 105–27. Rome Statute of the International Criminal Court, 17 July 1998 (entry into force 1 July 2002), UN Doc. A/CONF. 183/9, art. 7. See also Meron (2000), supra note 25, at 263. Theodor Meron, ‘Crimes under the Jurisdiction of the International Criminal Court’, in Herman von Hebel, Johan Lammers, and Jolien Schukking (eds.), Reflections on the International Criminal Court (The Hague: TMC Asser Press, 1999), 47. UNESCO action on the MDGs at www.unesco.org/bsp/eng/mdg.htm. FAO action on the MDGs at www.fao.org/es/ess/mdg_kit/contrib.asp.

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powerful states to condemn the use of nuclear weapons as it poses a serious threat to health.127 More recently, it has been indispensable in the sharing of information and safe practices during the Severe Acute Respiratory Syndrome (SARS) crisis in 2002 and the avian influenza pandemic.128 Since its inception after the First World War, the ILO has proved a formidable champion of labour rights, setting minimum standards for the freedom of association, abolishing false labour, and promoting equal opportunity and other standards on work-related issues. Its conventions and recommendations on labour standards have also been influential in setting industrial benchmarks, such as the 1999 Worst Forms of Child Labour Convention.129

Regional organisations Moving on to the examination of the role of regional organisations in the development of international human rights, we will explore whether they reinforce the universal ideal of human rights of the UN system in its machinations or detract from it by creating particular regional nuances. Whatever the case may be of regional mechanisms, they are arguably the most potent forces of institutionalising international human rights in the areas in which they are established. In this, the Europeans have often been commended for producing a series of sophisticated and comprehensive rights regimes and protections after the Second World War. The most prominent of which is the system managed by the Council of Europe. In 1950, the Council of Europe had already established the European Commission, Convention and Court of Human Rights to protect civil and political rights when it became apparent that the UDHR could not be promptly translated into binding obligations.130 The European states 127

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Michael Bothe, ‘The WHO Request’, in Laurence Boisson de Chazournes and Philippe Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (New York: Cambridge University Press, 1999), 103. World Health Organization (WHO) Global Alert and Response (GAR) at www.who.int/ csr/disease/en. See e.g., Virginia A. Leary, ‘Lessons from the Experience of the International Labour Organisation’, in Alston (ed.) (1992), supra note 92, at 580–619. A list of ILO conventions and recommendations can be found at www.ilo.org/ilolex/english/conventions.pdf and www.ilo.org/ilolex/english/recommendations.pdf respectively. For a comprehensive review of the European system of human rights, see e.g., P. van Dijk and G. J. H. van Hoof et al., Theory and Practice of the European Convention of Human Rights (The Hague, London, Boston, Kluwer Law International, 1998, 3rd edn.); Clare Ovey and Robin White, The European Convention of Human Rights (New York: Oxford University Press, 2002, 3rd edn.).

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were adamant that substantive multilateral legal protections and comprehensive enforcement measures had to be set in place as the Second World War had shown just how inadequate relying solely on national mechanisms was.131 Although the desire for sovereignty by states like the UK and France threatened to overcome the establishment of the regime as they were opposed to the invasive proposals of a court and the right of individual petition, the overwhelming support for the protection of human rights eventually prevailed.132 After the European Convention of Human Rights (ECHR) came into force in 1953, the powers of this system duly increased as the Court and Commission made significant inroads.133 Where the original plan allowed member states the option of accepting the jurisdiction of the Court and allowing private petitions to the Commission, the Court and Commission were merged by 1998 to form a single European Court of Human Rights to increase efficiency due to the heightened number of members and cases.134 Sovereignty eroded still further when the Council of Europe decided that individual petition and the Court’s jurisdiction were compulsory upon membership.135 As the Council of Europe enlarges in recent years, further reforms are seen to be necessary to deal with new challenges, and also the possibility that the European Court of Human Rights may need to act as a constitutional court.136 In the area of social-economic rights, the protections are not as strong. The European Social Charter (ESC) was only added in 1961 to complement the rights system under the Council of Europe by adding labour, economic, and social rights protections to its portfolio 131

132

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134 135

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Mark W. Janis, Richard S. Kay, and Anthony W. Bradley, European Human Rights Law: Text and Materials (New York: Oxford University Press, 2000, 2nd edn.), at 6–7 and 18. Ibid., at 16–22. For an account of the ECHR’s history, see J. G. Merrills and A. H. Robertson, Human Rights in Europe: A Study of the European Convention on Human Rights (Manchester: Manchester University Press, 2001, 4th edn.), at 1–21. European Convention on Human Rights (ECHR), 4 November 1950 (entry into force 3 September 1953), 213 UNTS 221. See Brice Dickson, ‘The Council of Europe and the European Convention’, in Brice Dickson (ed.), Human Rights and the European Convention: The Effects of the Convention on the United Kingdom and Ireland (London: Sweet and Maxwell, 1997), 1. Janis et al., supra note 131, at 22. Ibid., at 68. For more on Strasbourg machinery, at 27–92. Also, Merrills and Robertson, supra note 132, at 297–326. Elizabeth M. Evenson, ‘Reforms Ahead: Enlargement of the Council of Europe and the Future of the Strasbourg System’, 1(2) Human Rights Law Review (2002) 219; and Robert Harmsen, ‘The European Convention on Human Rights after Enlargement’, 5(4) International Journal of Human Rights (2001) 18.

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with further revision in 1996.137 This revised 1996 Charter is not as widely ratified as the ECHR, having forty-three ratifications as compared to forty-seven for the Convention.138 Moreover it has only the European Committee of Social Rights to monitor compliance. Additionally, the Governmental Committee will consider situations that need scrutiny, after which it can call upon the Committee of Ministers to take action. This Committee of Ministers will then put forward formal recommendations asking states to change their laws or practice.139 There is no mandatory compliance for the ESC as with the ECHR. Judging from the number of ratifications of the ESC, it may be inferred that the European states are hesitant to give it as wide-ranging powers as the ECHR. In spite of the European Court of Human Rights having built a wealth of jurisprudence and developed the unique ‘margin of appreciation’ to encompass more and more areas of rights-related issues, even to the extent of judging on internal armed conflict matters (lex specialis of which is humanitarian law), this trend does not appear to extend to socio-economic rights in the near future.140 The emphasis within the Council of Europe remains largely on civil and political rights. Although no formal relationship as yet exists between the Council of Europe’s human rights regime and the European Union (EU – formerly known as the European Community, EC), the European Court of Justice has held that human rights are part of Community law since 1969.141 137

138

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European Social Charter (ESC), 18 October 1961 (entry into force 26 February 1965), ETS 35. Member States of the Council of Europe and the European Social Charter (as of 30 March 2010) at www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp; Simplified Chart of Signatures and Ratifications: Human Rights (Convention and Protocols only) at www.conventions.coe.int/Treaty/Commun/ListeTableauCourt.asp?MA=3&CM= 16&CL=ENG. Regis Brillat, ‘The European Social Charter’, in Alfredsson et al. (eds.), supra note 21, at 604–5. David Harris and John Darcy, The European Social Charter (Ardsley, NY: Transnational Publishers, 2001, 2nd edn.), at 293–374 (detailed analysis on the supervisory mechanism); at 397–407 (efficacy of the ESC). William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’, 16(4) European Journal of International Law (2005) 741. Stauder v City of Ulm, Case No. 29/69 (1969) ECHR 419. See also Barbara Brandtner and Allan Rosas, ‘The EU as an External Human Rights Actor’, in Alfredsson et al. (eds.), supra note 21, at 667. For how the European Court of Justice built up case-law on the protection of human rights, see Shirley Williams, ‘Human Rights in Europe’, in Samantha Power and Graham Allison (eds.), Realizing Human Rights: Moving from Inspiration to Impact (New York: St. Martin’s Press, 2000), 90.

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The EU also holds that human rights have been enshrined in its treaties and actions, especially the Charter of Fundamental Rights of the European Union 2000.142 In addition, demonstration of a respect for human rights in law and practice is a prerequisite for membership to the EU. Such high regard for human rights stems from the concern of member states like Italy and Germany which were concerned that supranational EC law could override the strong constitutional protections for human rights.143 Respect for human rights has been further reinforced in subsequent years, such as in the 1992 Treaty of Maastricht,144 and 1997 Treaty of Amsterdam.145 The determination that respect for human rights applies in all EU policies can be seen in its foreign policy, especially with its lending policies to developing countries. Since the 1990s, the EC has also attached human rights conditions in external relations with third countries.146 There is even speculation that given the trend, the EU may turn into an ‘unprecedented post-national human rights protection institution’.147 The transatlantic body, the Organization on Security and Cooperation in Europe (OSCE), has also contributed significantly to human rights.148 This began in 1975 when thirty-three European states, together with the US and Canada, signed the Final Act of the Conference on Security and Cooperation in Europe (CSCE) (also known as the Helsinki Final Act) to compromise ideological differences between the Western and Eastern blocs.149 Although it was a 142

143 144

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Charter of Fundamental Rights of the European Union, 18 December 2000, Doc. No. 2000/C 364/01. Janis et al., supra note 131, at 504. Treaty of Maastricht (Provisions Amending the Treaty Establishing the European Economic Community with a View to Establishing the European Community), 7 February 1992 (entry into force 1 November 1993). Treaty of Amsterdam (Amending the Treaty on the European Union, the Treaties Establishing the European Communities and Certain Related Acts), 2 October 1997 (entry into force 1 May 1999). For a summary analysis of the two treaties, see Williams, supra note 141, at 97–102. Brandtner and Rosas, supra note 141, at 669. More on the EU’s external human rights policy at 667–78. Samantha Besson, ‘The European Union and Human Rights: Towards a Post-National Human Rights Institution?’, 6 Human Rights Law Review (2006) 323. The OSCE human rights initiatives at www.osce.org/activities/13042.html. See generally, Buergenthal, supra note 17, at 159–65; and Thomas Buergenthal, ‘The Helsinki Process: Birth of a Human Rights System’, in Richard Pierre Claude and Burns H. Weston (eds.), Human Rights in the World Community: Issues and Action (Philadelphia: University of Pennsylvania Press, 1992, 2nd edn.), at 256–70.

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non-binding agreement, it transcended the norms of sovereignty and non-intervention thus bringing about open discussion of rights violations in the 1980s. Through the years, a more profound and holistic perspective of human rights was formed, thereby instituting a ‘blueprint for a free and democratic Europe where human rights and the rule of law are observed’.150 This was especially so during the Copenhagen meeting in 1990 where the OSCE human rights catalogue expanded to enshrine the rule of law, democratic values, and free elections.151 All these institutions have enabled the growth and practice of human rights law at national, regional, and international levels such that a strong human rights culture has evolved in Europe. Over in the Americas, the Inter-American system of human rights was established even before the UDHR was proclaimed.152 At the ninth Inter-American Conference in 1948, the Organization of American States (OAS) was formed and the American Declaration on the Rights and Duties of Man was signed.153 In addition to providing a nonbinding catalogue of civil, political, economic and social rights (somewhat similar to the UDHR provisions), it also enunciated the duties individuals had towards the family and state.154 However, it was not till the Inter-American Commission on Human Rights was created in 1959 that the rights in the Declaration were activated.155 Becoming a formal OAS organ in 1970,156 the Commission took on further duties when the American Convention on Human Rights (ACHR) 1969 came into effect in 1978.157 As it stands, the ACHR contains mainly civil and

150 151

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155 157

Buergenthal, supra note 17, at 166. Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Second Conference on the Human Dimension of the CSCE, Copenhagen, 5 June–29 July 1990. For a critique of the ‘human dimension’ of the OSCE, see Rachel Brett, ‘Human Rights and the OSCE’, 18(3) Human Rights Quarterly (1996) 668. David J. Harris, ‘Regional Protection of Human Rights: The Inter-American Achievement’, in David J. Harris and Stephen Livingstone (eds.), The Inter-American System of Human Rights (Oxford: Clarendon Press; New York: Oxford University Press, 1998), at 1–30. American Declaration of the Rights and Duties of Man, 2 May 1948 (entry into force 18 July 1978), OAS Res. XXX. Buergenthal, supra note 17, at 174–86. Christina Cerna, ‘The Inter-American Commission on Human Rights: Its Organisation and Examination of Petitions and Communications’, in Harris and Livingstone (eds.), supra note 152, at 65–7. 156 Ibid., at 65. Ibid., at 68. Ibid. American Convention on Human Rights (ACHR), 22 November 1969 (entry into force 18 July 1978), OAS Treaty Series No. 36, 1144 UNTS 123.

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political rights with a general mention of the socio-economic in Article 26.158 This lacuna has been remedied with the Additional Protocol of 1988, which focuses specifically on economic, social, and cultural rights.159 Through the years, the Commission and Court have also come up with a system of human rights protection that includes country studies, on-site investigations, and individual petitions amid antagonistic and corrupt governments and states with large-scale grave human rights violations like disappearances and torture.160 It has also expanded its ambit of work to include uncovering the truth of gross abuses of human rights to facilitate the healing process of victims and their family members.161 More significantly, the Inter-American Court has raised standards of rights adherence by finding that OAS members who are non-parties to the ACHR still owe human rights obligations because ‘for the member states of the Organization, the Declaration is the text that defines the human rights referred to in the Charter . . . the Declaration is for these States a source of international obligations related to the Charter of the Organization’.162 Reform of the Inter-American system is being looked into and suggestions such as the increased participation of victims in court as well as improving the efficacy of judgments have also been reviewed.163 As for the African continent, the Organization of African Unity (African Union – AU – since 1999) adopted the African Charter on 158 159

160

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ACHR, ibid., art. 26. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988, OAS Treaty Series No. 69. See also Louis Henkin et al. (eds.), International Law: Cases and Materials (St. Paul, MN: West Pub. Co., 1993), at 666–7. For more on economic and social rights in the Inter-American system, see Matthew Craven, ‘The Protection of Economic, Social and Cultural Rights Under the Inter-American System of Human Rights’, in Harris and Livingstone (eds.), supra note 152, at 289–321. David Harris, ‘Regional Protection of Human Rights: The Inter-American Achievement’, in Harris and Livingstone (eds.), ibid., note 142, at 1–4. For a critique of the system, see Tom J. Farer, ‘The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox’, 19(3) Human Rights Quarterly (1997) 510. Juan E. Mendez, ‘The Inter-American System of Protection: Its Contributions to the International Law of Human Rights’, in Power and Allison (eds.), supra note 141, at 117–24. Buergenthal, supra note 17, at 180; Harris, supra note 152, at 4–9; and Thomas Buergenthal, ‘The Inter-American system for the Protection of Human Rights’, in Theodor Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984), 460 at 470–9. Mendez, supra note 161, at 130–6.

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Human and Peoples’ Rights (ACHPR) which became effective in 1986.164 This system has been criticised for being less effective than the European and Inter-American regimes due to problems inherent in both its Charter and enforcement mechanism.165 The Charter protects the usual range of civil, political, social, and economic rights similar to those in other international rights treaties.166 However, substantial ‘claw-back’ clauses on the basis of national legislation rendered many protections ineffective while obligating citizens with reciprocal duties.167 It also rejected the establishment of a human rights court on the basis of the African culture of conciliation, preferring to use only the African Human Rights Commission.168 This sole monitoring body has been underutilised. Submission of country reports have been erratic and gross violations of human rights have continued throughout the 1990s and 2000s (e.g., genocide in Somalia, Sudan, Liberia and Rwanda), yet the Commission has no authority to correct the situation due to political inertia and poor funding.169 Although it is said that the Commission has strengthened and there is an African Court on Human and People’s Rights based in Arusha, Tanzania,170 the African system continues to be hamstrung.171 This is unsurprising as it must be remembered that the OAU was set up to eradicate colonialism in 1963 as its main aim and even after evolving into the African Union, the African states emphasise their unity and solidarity and continued non-interference to the extent that human 164

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Evelyn A. Ankumah, The African Commission on Human and People’s Rights: Practices and Procedures (The Hague, London, Boston: Martinus Nijhoff Publishers, 1996). African Charter on Human and Peoples’ Rights (ACHPR), 27 June 1981 (entry into force 2 October 1986), OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). Makau Mutua, ‘The Construction of the African Human Rights System: Prospects and Pitfalls’, in Samantha Power and Graham Allison (eds.), Realizing Human Rights: Moving from Inspiration to Impact (New York: St. Martin’s Press, 2000), 143. Forsythe, supra note 71, at 133. Ankumah, supra note 164, at 170–2; 176–8. 169 Ibid., at 193–8. Forsythe, supra note 71, at 134. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 9 June 1998 (entry into force 25 January 2004). Erika de Wet, ‘The Protection Mechanism under the African Charter and the Protocol on African Court of Human and Peoples’ Rights’, in Alfredsson et al., supra note 21, at 713–30; Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’, 21 (2) Human Rights Quarterly (1999) 342. In the recent and only case thus far submitted to the African Court, the Court ruled that, as Senegal had not accepted the Court’s jurisdiction to hear cases against the state by individuals and NGOs, it did not have the jurisdiction to hear the case. See Michelot Yogogombaye v. Republic of Senegal, Judgment of 15 December 2009, Application No. 001/2008, at para. 37.

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rights violations from the 1960s through to the 1990s may very often be overlooked.172 Nonetheless, developments in the African system have been made in the areas of protection of indigenous populations and refugees, and the Commission has ruled on cases with regard to trade embargoes and the death penalty.173

Unilateral and multilateral political initiatives Besides multilateral and institutional efforts to promote international human rights, unilateral programmes have been undertaken by the developed nations in the form of aid. States such as the UK and the Netherlands among other developed countries have all made human rights promotion a firm part of their foreign policy.174 Among these states, however, the US has by far the most prominent and controversial reputation due to its hegemonic status and the use of human rights in its pursuit of national goals. Eschewed since the 1940s amid ‘McCarthyist’ suspicions that communist agendas lurked in the international human rights project, the US Congress softened its stance in the 1970s and enacted legislation that marked the start of the indivisibility of human rights promotion and US foreign policy. Tying the provision of developmental aid to human rights and democratic factors, this practice strengthened when Carter assumed office in 1977, and has continued uninterrupted by subsequent administrations (though Ronald Reagan was markedly less supportive).175 Today, US aid and security assistance continues to be denied to states guilty of gross violations of human rights under domestic legislation such as the Foreign Assistance Act of 1961 and 172

173

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Makau Mutua, supra note 165, at 143–66. For an overview of the African system, see Rachel Murray, The African Commission on Human and Peoples’ Rights and International Law (Portland, Oregon: Hart Publishing, 2000). Rachel Murray, ‘Developments in the African Human Rights System 2003–4’, 6(1) Human Rights Law Review (2006) 160. See also Chidi Anselm Odikalu, ‘Human Rights Mechanisms in Africa: Recent Developments in their Norms, Institutions and Jurisprudence’, 3(1) Human Rights Law Review (2003) 105. See e.g., the UK and the Dutch foreign and human rights policies at www.fco.gov.uk/ en/global-issues/human-rights and www.minbuza.nl/en/Key_Topics/Human_Rights respectively. See e.g., the US Department of State, Bureau of Democracy, Human Rights and Labor website at www.state.gov/g/drl. For a critical analysis, see Nicolas Guilhot, The Democracy Makers: Human Rights and International Order (New York: Columbia University Press, 2005).

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International Financial Institutions Act of 1977.176 The latter stipulates that the US can block loans from international financial institutions to states with sub-standard human rights protection.177 In addition, the US State Department monitors the standard of human rights in every country by producing annual reports while trade embargoes and other sanctions are meted out against countries like Iran, North Korea, and Congo.178 However, the US has frequently drawn vociferous criticism for its perceived hypocritical policies, not least because its adherence to international human rights treaties continues to be lacklustre.179 Despite the Congressional Acts, the US continued to give aid to dictatorships that committed gross and egregious violations of human rights, like South Korea, Indonesia, and the Philippines, so as to safeguard American interests in the Far East and to deflect the threat of communism.180 Such human rights foreign policy ambiguity has not altered. The promotion of American-style democratic ideals continued with the George W. Bush administration, championing the notions of freedom, human rights, and democracy in the National Security Strategy 2002 and (a strongly criticised) State of Union Address 2006.181 The US withdrew aid to Thailand in the wake of a coup led by General Sonthi Boonyaratglin to overthrow the then prime minister, Thaksin Shinawatra, on 19 September 2006.182 Yet, in the post-9/11 ‘war on terror’, the US has again closed a blind eye to human rights issues, preferring to support stronger domestic measures while committing abuses against the Guantanamo Bay detainees and Abu Ghraib prisoners, amid rife allegations of torture being used in

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See US foreign aid policies at www.usaid.gov/about_usaid/usaidhist.html. Also, David P. Forsythe, Human Rights and US Foreign Policy: Congress Reconsidered (Gainesville: University of Florida Press, 1988). Henkin et al., supra note 94, at 815–19, 824; and Steiner and Alston, supra note 92, at 1,090. For more on US sanctions, see the US Treasury Office of Foreign Assets Control (OFAC) Treasury at www.treas.gov/offices/enforcement/ofac/index.shtml. Henkin et al., supra note 94, at 784. Stephen Cohen, ‘Conditioning US Security Assistance on Human Rights Practices’, 76 American Journal of International Law (1982) 246, quoted in Steiner and Alston, supra note 92, at 1,098. National Security Strategy (2002) at http://georgewbush-whitehouse.archives.gov/nsc/ nss/2002; State of the Union Address 2006, transcript at www.gpoaccess.gov/sou/index. html. ‘US Imposes Sanctions on Thailand after Coup’, Channel News Asia, 29 September 2006.

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interrogation of terrorist suspects.183 Nonetheless, the human rights and democracy undertaking, while still strong under the current Obama administration, is more nuanced and expressly notes the need to adhere to international law.184 In external relations, it has called on other states to tighten anti-terrorist measures while extending aid in that direction – Indonesia, the Philippines, and Malaysia. This is a marked contrast to its previous condemnation of their impingement of civil liberties.185

Non-governmental organisations Finally, brief mention must be made of the substantial contributions of NGOs towards the development of human rights.186 Since the 1970s, there has been a proliferation of such bodies internationally and domestically. Their fact-finding reports and lobbying have undoubtedly supplemented the human rights missions of the UN and other regional bodies. However, there remain concerns that NGOs may lack the necessary impartiality and balance in their fact-finding due to vested interests of their donors. Moreover, the geographical focus may tend towards certain countries and not others. Nonetheless, international NGOs like Human Rights Watch, International Commission of Jurists, and Amnesty International are highly regarded and are known for their 183

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Human Rights Watch, Counter-Terrorism Post September 11, at http://hrw.org/doc/? t=usa_antiterror. See e.g., John R. Crook, ‘Contemporary Practice of the United States Relating to International Law: General International and US Foreign Relations Law – State Department Legal Adviser Describes US Approach to International Law’, 104 American Journal of International Law (2010) 271; Harold Hongju Koh, The Obama Administration and International Law, Address to the Annual Meeting of the American Society of International Law, 25 March 2010, at www.state.gov/s/l/releases/remarks/139119. htm; National Security Strategy (2010) at www.whitehouse.gov/sites/default/files/ rss_viewer/national_security_strategy. Simon S. C. Tay, ‘Asia and the United States after 9/11: Primacy and Partnership in the Pacific’, 28(1) Fletcher Forum of World Affairs (2004) 113. This is kept short as the chapter focuses on how state actors have unilaterally and collectively altered the growth of international human rights, and the resultant reaction of Southeast Asia. The work of NGOs in Southeast Asia will be covered in later chapters. For a brief discussion on NGO action, see Kenneth Roth, ‘Human Rights Organizations: A New Force for Social Change’, in Power and Allison (eds.), supra note 141, at 225–48; and Richard Pierre Claude, ‘What Do Human Rights NGOs Do?’, in Claude and Weston (eds.), Human Rights in the World Community: Issues and Action (Philadelphia: University of Pennsylvania Press, 2006, 3rd edn.), at 424–32. For the history of NGO action and the UDHR, see William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: St. Martin’s Press, 1998).

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powerful lobby. Their reports also often cause considerable embarrassment and difficulty to governments.187

Where was Asia in the making of international human rights law? Possible roots of ASEAN states’ aversion to human rights As observed, human rights has not changed much since its primitive inceptions in the seventeenth and eighteenth centuries. The broad themes of humanitarian intervention, humanitarian law, protection of minorities and aliens, and the anti-slavery movement have all continued to mature within the modern framework of international human rights law. The rapid development of human rights after the Second World War only served to strengthen these themes, while providing novel notions of substantive human rights first in the UDHR, then the two International Covenants. This has been elaborated and enhanced through numerous multilateral human rights treaties and protocols. Moreover, the regional systems in Europe, the Americas, and Africa have also reinforced the international human rights institution. The landmark creation of the International Criminal Court (ICC) has also clearly enunciated the general international opinion that egregious crimes are no longer to be tolerated. Universal jurisdiction asserts both common man and head of state must be penalised for wrongdoings. Nonetheless, while the controversial right of humanitarian intervention gained more support after the Kosovo intervention, support for such type of actions has waned with the US invasion of Iraq in 2003 and the continued development of the R2P doctrine.188 In all this, there is perhaps relatively little to quibble about the human rights norms enshrined in treaties since they were enacted in response to real needs. For instance, the Bill of Rights was meant to prevent the recurrence of Second World War atrocities, while the CEDAW and CRC were established because of the realisation that women and children 187

188

Kenneth Roth, ‘Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization’, 26(1) Human Rights Quarterly (2004) 63. See e.g., The Singapore Government’s Response to Amnesty International’s Report ‘Singapore – The Death Penalty: A Hidden Toll of Executions’, Singapore Ministry of Home Affairs, 20 January 2004, at www.mha.gov.sg/basic_content.aspx?pageid=74. Note the developments regarding the humanitarian intervention doctrine in J. L. Holzgrefe and Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003) and Anne Peters, ‘Humanity as the A and Ω of Sovereignty’, 20(3) European Journal of International Law (2009) 513, at 533–40.

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needed positive enhancements of rights in a discriminatory society. With the UDHR now having the status of customary international law, and universal human rights seen as ubiquitous with modern civilised societies, it may be puzzling why Southeast Asia remains largely hesitant in signing up to the two Covenants and initiating a regional system. However, such state behaviour can be attributed to the operation of the global order and the way international human rights have evolved. While not always correct, the Southeast Asian states do have grounds for being suspicious and delaying firmer commitment to the human rights until now. It is unsurprising why Southeast Asian states behave as they do given the amorphous justification of international human rights. Looking first at the general philosophical reason enunciated in every human rights treaty – that every state ought to abide by them due to its universal and inherent nature in mankind – we find that even by tracing the developments from the French and American Declarations to present-day conventions, nowhere can we find explicit explanation for the existence of human rights. Moreover, recalling the difficulties faced by the Philosophic Committee during the drafting of the UDHR, where conflicting philosophical justifications from a range of different cultures and beliefs were proffered, it was ultimately decided that although differences abounded and could not be resolved, mankind did hold essential values that needed international protections. When the UDHR draft was put to the vote, the overwhelming support was because of the international community’s resolve to reach a common pronouncement to protect humankind from a repeat of the Second World War, despite the diversity of creeds, races, and political ideologies.189 The international body of human rights we possess today were hence a result of political will and not a progression from any value system as might be commonly believed. Additionally, due to a concentration of power in certain states, the eventual outcome was that the cornerstone of the international institution of human rights – the ideal that the state should never violate the inalienable rights of man – was more a construct of Western liberal political thought than other political cultures, although retroactive parallels are drawn with the latter. Arising from the popular political theories of Hobbes, Rousseau, Locke, and their counterparts, though each came up with different notions of civil and 189

Henkin (1990), supra note 14, at 6.

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political society, all based their respective theories on a similar ‘natural law’ assumption.190 This ‘natural law’ concept held that the human person was an autonomous being who, in his natural state, possessed inherent rights.191 In forming political society, man thus entered a social contract in which he had to surrender some autonomy to the state in exchange for governance. However, man retained certain inalienable rights which could not be taken away by the state under any circumstances, even with the consent of that person.192 These are the same principles that are the underlying foundations of the American and French Declarations which stipulate that the state cannot infringe on certain personal rights. In addition, it must be noted that the ‘natural law’ advocated by these liberal political theorists had already broken away from the ‘moral, ethical, and rational standard’ of classical natural law of Aquinas that had influenced pre-Enlightenment thinking.193 In the latter, ‘natural law was ordained to the common good and was man’s rational participation in an antecedent eternal law’.194 Conversely, the former viewed man as a self-centred individual who sought to enrich himself materially at the expense of and in competition with others, and where the right to own property was of utmost importance.195 These liberal themes based on the new notion of natural law influenced the jurists of that time and were hence transposed onto the international order. Grotius, a founding father of modern international law, was also of this school of thought. For him, natural law was not so much about the common good as it was to preserve oneself and property ownership in the possession of rights. This ‘morality based on coexistence between self-regarding individuals’ posited the achievement of 190

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194

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Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999); and Robert C. Solomon and Mark C. Murphy (eds.), What is Justice?: Classic and Contemporary Readings (New York: Oxford University Press, 2000, 2nd edn.). Harold Hongju Koh, ‘Why Do Nations Obey International Law?’, 106 Yale Law Journal (1997) 1,599, at 2,606. Adamantia Pollis, ‘Human Rights in Liberal, Socialist, and Third World Perspective’, in Claude and Weston (eds.), supra note 149, at 146. Mary M. Keys, Aquinas, Aristotle, and the Promise of the Common Good (Cambridge; New York: Cambridge University Press, 2006); and Kristin Shrader-Frechette, ‘Natural Rights and Human Vulnerability: Aquinas, MacIntyre, and Rawls’, in John Inglis (ed.), Thomas Aquinas (Aldershot, UK; Burlington, VT: Ashgate, 2006). Stephen Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’, 12(2) European Journal of International Law (2001) 269, at 273. Pollis, supra note 192, at 147.

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individual rights at the expense of other individuals, thus affecting the common good.196 Jurists like Pufendorf, Wolff, and Vattel, among others, developed these principles, building up a theory of international society.197 Translating the national polity onto the international plane, the world order thus comprised a society of equal states which possessed absolute sovereignty whereby non-interference in mutual affairs was respected and action always strictly proceeded upon express consent. Never should a state impose its will upon another by virtue of every nation’s equality. As for the administration of this equal society, the collective body of states would be taken to be the fictional supranational sovereign. International law made from the decisions of states taken together would serve as an authoritative body of rules to regulate international relations as an exercise of world government. This is recognised today as the body of international law comprising treaties and custom – of which international human rights law is a component – and the UN as the overarching authority of the international legal order. Though never expressly imposed on the international human rights institution, the body of human rights norms held by the world community is hence undeniably a liberal construct. Whether we recognise it or not, all international actors are still abiding by rules that were introduced at Westphalia and reinforced ever since San Francisco in 1945. In addition, the norms of sovereignty, non-interference, consent and reciprocity with which human rights always seem to conflict are undeniably liberal constructs and it is within this paradoxical framework that all members of the international polity have to work. The Southeast Asian states’ reticence towards human rights and occasionally antagonistic stance against their critics should not be a surprise, then, especially when powers such as the US and UK were similarly opposed to human rights coming into being when the UN Charter was drafted. Just as the powers feared self-determination and nondiscrimination laws would undermine their state interests in colonialism 196

197

Chris Brown, Sovereignty, Rights, and Justice: International Political Theory Today (Malden, MA: Blackwell Publishers, 2002), at 30–1; and Tuck, supra note 190. For more exposition on the development of international order, see Ross Harrison, Hobbes, Locke, and Confusion’s Masterpiece: An Examination of Seventeenth-Century Political Philosophy (Cambridge, UK; New York: Cambridge University Press, 2003); Knud Haakonssen (ed.), Grotius, Pufendorf and Modern Natural Law (Aldershot, Hants: Dartmouth, 1999); and Chris Brown, Terry Nardin, and Nicholas Rengger (eds.), International Relations in Political Thought: Texts from the Ancient Greeks to the First World War (Cambridge, UK; New York: Cambridge University Press, 2002).

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and racism, Southeast Asian states are unwilling to relinquish absolute sovereignty, which would thereby invite external interference in their domestic affairs. As the norms of the international order evolve, the most notable being the mitigation of absolute sovereignty and the inclusion of non-state actors with the advent of human rights, there remains for all states a choice in the type of liberal constructs they prefer to embrace.198 Take human rights, for instance. Even if some states remain opposed to its intrusion on the basis of sovereignty, they are merely ‘following’ precedent. As once anything other than absolute sovereignty was unheard of in the law of nations, many states have now accepted the international scrutiny of human rights to a certain degree. Nonetheless, as sovereignty continues to play a major role in international relations, consent is still needed to enforce international law. It remains to be seen whether ASEAN states, among others, will gradually also acquiesce to a diminishing sovereignty in the acceptance of human rights. For the moment, while they begin to endorse human rights, they also insist on the ‘ASEAN way’. This, then, brings us back to the question: if international human rights are a mere political construct, need philosophical justifications really be discussed? As Henkin commented, ‘international human rights are not the work of philosophers, but of politicians and citizens, and philosophers have only begun to try to build conceptual justification for them’.199 Yet the metaphysical concepts of human rights – their ‘inherent’, ‘universal’, and ‘equal’ qualities – are inextricable from the meaning of humanity and notions of common brotherhood. They remain the very issues which philosophers have been trying to answer. Debate continues to flourish as there is no satisfactory theory of human rights upon which all agree. Multifarious explanations ranging from positivism and Marxism, to the modern explanations based on justice (such as by John Rawls) have been proffered.200 Ironically, the classical natural law eschewed by the liberal theorists has also met with a revival, resulting in its theory of 198

199 200

Report of the UN Secretary-General’s Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/656 (2004). Henkin, supra note 14, at 6. Jerome Shestack, ‘The Jurisprudence of Human Rights’, in Meron (ed.), supra note 162, at 69. Also, Jerome Shestack, ‘The Philosophical Foundations of Human Rights’, in Janusz Symonides (ed.), Human Rights: Concept and Standards (Aldershot: UK; Burlington, VT: Ashgate; Paris: UNESCO, 2000), at 31–68; and John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1999).

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human rights (and duty) gaining substantial support.201 Unlike the liberal idea of ‘natural law and rights’, classical natural law encourages altruistic ideals – that human rights are universal on the basis of common brotherhood; and that in upholding human rights, both the common good as well as that of the individual should be sought, without any utilitarian trumping of one upon the other.202 Yet in all this – even though classical natural law professes universal applicability regardless of value system – the global order and the international human rights regime possesses a tendency towards Western-centricity. What we have not seen with the general Southeast Asian adoption of human rights, however, is the concomitant and necessary enculturation within the region. It is understandable that Southeast Asian states (among others) are wary of Western ideological imperialism when adopting human rights. Not only was the bias against them in the drafting of the UDHR, but their views have continued to be somewhat shunted aside in human rights development. Even if the Philosophic Committee took note of the varying Asian views, it was ultimately the ideals of the Allied Powers that prevailed as liberalism continues to persist in the international legal order. Nevertheless, it does not seem as if the Southeast Asian states chafe overmuch against the liberal structure of the world order since they comfortably (and pragmatically) engage notions of sovereignty and noninterference to safeguard its interests. Moreover, in adapting the UDHR to their national constitutions, signing up to selected human rights conventions, and believing strongly in equality and self-determination, they have accepted relinquishing sovereignty in exchange for protections they deem advantageous. This is a small but positive step for universal human rights in the region. Nonetheless, given the different value systems and the propensity for human rights justification to arise, some form of cultural, philosophical, and political identity may need to be developed so as to quell doubts and instil a sense of ownership and affinity with human rights in the diverse range of Southeast Asian societies. The liberal idea that the state seeks to impinge on citizens’ liberties and thus must be restrained may sit uncomfortably with some Asian perceptions of the state as one which 201

202

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press; New York: Oxford University Press, 1980); and Robert P. George, In Defense of Natural Law (Oxford: Clarendon Press; New York: Oxford University Press, 1999). Nonetheless, confusion between the classical natural law and the Hobbesian version remains. See Hall, supra note 194.

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seeks the good of its people.203 It must be recognised that apart from the vitriol over ‘Asian values’, dilemmas that arise within these cultural frameworks can also be genuine and legitimate. For example, the preponderance for ‘duty’ alongside rights should not be seen as a detraction of the latter. This is increasingly recognised even in rights-based societies like the US.204 For example, the typical Asian ‘conservative’ society expects generally more authority over children.205 Leaving aside obvious cases of what constitutes child abuse, it is foreseeable that different cultural thresholds can be problematic in gauging what children’s rights as envisioned in the CRC really comprise. For instance, Singapore reads Articles 19 and 37 of the CRC as not prohibiting ‘the judicious application of corporal punishment in the best interest of the child’ and that the ‘accession to the Convention by the Republic of Singapore does not imply the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution’.206 Similarly, the woman’s role may engender a cultural and ideological clash with respect to the CEDAW. Further complications are likely to set in where the Islamic framework of Syariah law intersects with human rights on the issues of gender roles, property ownership, and the profession of religion.207 Another complaint that Southeast Asian and other developing states have is the general preference for civil and political rights over the socioeconomic and developmental, despite the fact that the dichotomy between the two is actually false. Right from start, Roosevelt’s wartime exhortation for the ‘four freedoms’, including the ‘freedom from want’, clearly encompassed the socio-economic aim of ensuring the provision of basic necessities. During the post-war years, the General Assembly had also called 203

204

205

206

207

For instance, the Confucian model of junzi and the relationship between the ruler and subject. See e.g., Wejen Chang, ‘Confucian Theory of Norms and Human Rights’, in Wm. Theodore de Bary and Tu Weiming, Confucianiam and Human Rights (New York: Columbia University Press, 1997), at 124–31. It is arguable how much of this ‘Confucian’ notion of political rule is subscribed to. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press; Toronto: Collier Macmillan; New York: Maxwell Macmillan, 1991). It is beyond the scope of this thesis to discuss the conflicting views and substance of human rights held by each society. See arts. 2(c) and 3 of Singapore’s declarations and reservations upon signing the CRC, at www.hri.ca/fortherecord1997/documentation/reservations/crc.htm. See e.g., Abdullahi Ahmed An-Na’im, ‘Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights’, in Larry May and Shari Collins Sharratt (eds.), Applied Ethics: A Multicultural Approach (Englewood Collins, NJ: Prentice Hall, 1994), 51.

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upon the UN specialised agencies to give effect to socio-economic priorities for acceptable standards of living to be met. This emphasis of social, economic, and cultural rights alongside the civil-political was reiterated in the UDHR. Unfortunately, socio-economic rights lost favour with the Western powers because of banal political rivalry. The capitalist West and communist East each took sides and championed the civil-political and economic-social rights respectively during the Cold War. Suspicion over socio-economic rights intensified when many developing states supported Soviet Russia in arguing for socioeconomic and development rights. This schism widened to such a degree that the status of economic, social, and developmental rights came to be questioned. It was argued by Western human rights proponents that such rights could not be considered genuine human rights as they were by nature progressive and needed incremental steps according to the country’s capacity to be realised. Civil-political rights on the other hand were seen to be ‘instantaneous’ – the state merely needed to refrain from infringing the rights of its citizens. A ‘generational’ theory of human rights even arose, with the civil-political claiming the standard of being the ‘first generation’ of rights, while the socio-economic and cultural and developmental rights were relegated ‘second’ and ‘third’ place respectively. This false bulwark of the ‘positive’ and ‘negative’ nature of human rights had great influence and lasted many decades. Fortunately, there have been some developments in the equalising of both kinds of human rights. Much scholarship has been devoted to explaining how the civil-political and socio-economic rights are concomitant and equal. In 1993, it was thus expressly declared at Vienna that human rights were ‘indivisible’. It has been realised that it is a misconception that civil-political rights merely oblige the state to abstain from rights abuse. The provision of courts, efficient judiciary, and other factors of due process to safeguard civil and political rights in fact demand as many resources, institutional infrastructure, and positive effort by the state as socio-economic rights. Moreover, the international community has come round to accepting the rightful status of the latter rights, especially since a basic standard of living in the provision of necessities is necessary to living in freedom, empowerment, and dignity, hence the avowal to attain the MDGs. Nevertheless, the stereotype has not declined significantly. Not only do the Inter-American and European Conventions place more weight on civil and political rights, with the effect that socio-economic rights have been slow to gain credence, but the bias against the latter type of rights

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still remains. For instance, the European Social Charter is not as popularly subscribed to as the ECHR within the Council of Europe. Additionally, the widely published work of prominent international NGOs such as Human Rights Watch and Amnesty International, which have traditionally focused their attention to abuses in civil liberties, may unintentionally perpetuate the misconception that socio-economic rights are secondary to the former.208 This invariably leads the Asian states among others to feel that social-economic and developmental rights they have consistently valued are somehow inferior to the ones that Western developed nations have traditionally favoured. Still, there is hope that human rights will soon revert to their original ‘indivisible’ status as the stigma attached to socio-economic and developmental rights is being chiselled away. There is another point of contention which the Southeast Asian states object to in relation to the harmony between the two types of rights. It is the curious phenomenon of how democracy has become ubiquitously twinned with human rights.209 Remembering that China’s proposal for self-determination and equality was rejected during the Dumbarton Oaks meeting, it was through great difficulty and fierce local resistance that many of the Southeast Asian states (and other colonies) gained independence from their colonial masters. Moreover, the actualising of the right of self-determination by the colonies entailed a long campaign by the Third World solidarity bloc in the General Assembly. Once independence was obtained, the focus of these freed states changed from external self-determination to nation-building. Perhaps little thought was given the right of internal self-determination as ‘strong-men’ and variations of soft authoritarianism came to hold the helm for successive generations. These governments resented any criticism of their power and intended to remain in power. External self-determination was strongly supported such that there was strong condemnation by Vietnam’s Southeast Asian neighbours of its invasion and occupation of Cambodia from 1978 to 1990.210 When the US policy of democratic promotion began in the 1970s by tying bilateral aid with terms of human rights and even moving on to 208

209

210

This is despite the fact that there are indeed numerous agencies which foster socioeconomic development. Morton H. Halperin, ‘Democracy and Human Rights: An Argument for Convergence’, in Power and Allison, supra note 141, at 249–64. Shaun Narine, Explaining ASEAN: Regionalism in Southeast Asia (Boulder, Colorado: Lynne Rienner Publishers, 2002), at 39–66.

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block the international financial institutions’ (IFIs) loans at the international level, many developing states viewed this as interference of their domestic policy and an obstruction of national development. This resentment was further compounded as other developed nations followed suit in their own developmental aid policies. Whether or not this promotion of democracy was founded on a real belief in the ‘democratic pacifist’ theory – that democratic states have a lower propensity to warfare and thus ensure world peace and stability – judging from the constant opposition to tied aid and democratic promotion, Southeast Asian and other developing states have tended to think otherwise.211 Presumably, it is a sore point that the international system correlates human rights enjoyment with the democratic right of political participation. In addition, judging from the duplicitous way of how democratic promotion has been used as a strategic tool of containment for realist interests (especially the US), these states will likely see this as an attempt to undermine their power in the guise of promoting the right of internal self-determination. These tensions may ease somewhat as Southeast Asia becomes more receptive to democracy. There is hope, however, that the ongoing Millennium Development project undertaken by the UN to eradicate poverty, raise living and educational standards, and abolish gender discrimination will go a long way to ensuring substantive indivisibility in human rights. This is because not only are developing states actively encouraged to strive for these goals, but developed nations are expected to increase aid contributions and abolish unfair trading practices to facilitate the poorer nations’ socio-economic development. Mutual cooperation, if successful, would help to ease tensions over democratic promotion in the cause of establishing human rights. More importantly, it could generate a higher regard for the socio-economic and developmental exigencies of the developing world, and enable the rightful standing of such rights along the civil-political.

Conclusion The examination of the evolution of international human rights has permitted a glimpse into the longstanding contentions of Southeast 211

Karen Rasler and William R. Thompson, Puzzles of the Democratic Peace: Theory, Geopolitics, and the Transformation of World Politics (New York: Palgrave Macmillan, 2005); Michael E. Brown, Sean M. Lynn-Jones, and Steven E. Miller (eds.), Debating the Democratic Peace (Cambridge, MA: MIT Press, 1996).

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Asian states. What then can we make of all this? It may have been observed that the above misgivings are neither new nor novel, but are rather an embodiment of suspicions borne of the capricious realpolitik on the international plane and are in fact similar to concerns in the rest of the developing world, albeit in slightly different form. Admittedly, while these defensive postures against human rights were most stridently advocated alongside other Asian states during the height of the ‘Asian values’ debate, and encapsulated in the Kuala Lumpur and Bangkok Declarations of 1993, they seldom get such a public airing nowadays. Moreover, Southeast Asian states display more public relations finesse on the international plane. For instance, support for the Doha round of trade talks to level the playing field between the developed and developing world was carried out in a strong yet positive manner. Even after the coup was condemned roundly by the international community, the Thai junta maintained its conciliatory stance and pleaded that ‘Thai-style democracy’ be understood in light of the fractured Thai society. Be that as it may, there is no telling whether these deep-seated concerns have indeed abated or if a human rights furore will not make a comeback. Whatever the case may be, it would be helpful to remember the reservations Southeast Asian states have held, and may continue to hold, with regard to human rights. It is important to also note that while the above contentions are generally seen as a collective opinion broadcast to the rest of the international community, closer examination of the support for the potential establishment of a regional human rights mechanism in ASEAN will show considerable disparity among its member states. It appears that support for the human rights project is proportionate to the degree of democratic openness the state has, and what its current administration aims to achieve in terms of foreign and domestic policy. Additionally, the history and experience the domestic population has in striving towards democracy also contributes to a state’s positive attitude towards rights enforcement. For instance, Indonesia under President Susilo Bambang Yudhoyono’s leadership has come to be the most ardent supporter for democratic values and human rights in the region, while its citizenry appreciate the newly found democratic empowerment. However, state support for the human rights agenda does not equate with a good standard of adherence – Indonesia and the Philippines are cases in point. Conversely, Singapore, which adopts a cautious attitude towards human rights, has arguably better standards.

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With this in mind, the next chapter deals with human rights of the ASEAN states of Indonesia, Malaysia, the Philippines, Singapore, and Thailand at the three levels of state, civil society, and domestic opinion. This will enable us to be better poised to gauge how the AICHR will evolve.

3 Self-determination and democracy: the human rights experiences of five ASEAN states

Introduction Despite any latent misgivings Southeast Asia may have against international human rights, as seen in Chapter 2, we find that human rights have nevertheless made significant inroads into the regional consciousness. This is especially so if we scrutinise the internal structure of the states and recognise the long way they have come from their initial taste of human rights in the decolonisation process, which was subsequently stymied by authoritarian leadership. Of course, serious impediment to the institutionalisation of human rights still remains at both the domestic and regional levels. Endemic corruption, lack of resources and funding, poor civil infrastructure, and human resource training, together with low public awareness and lack of knowledge of how to use the human rights mechanism, are among the major obstacles to human rights empowerment. Nonetheless, there are positive signs that the states are taking human rights more seriously. This is not merely limited to their readiness to discuss the exact operational parameters of the Association of Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights (AICHR). Perhaps in an even more profound and substantive way, there is evidence that governments are slowly permitting the implicit and explicit application of human rights within the domestic sphere through bodies such as civil society organisations, national human rights institutions (NHRIs), and the courts. Given that AICHR would severely lack strength unless coupled with a concomitant resolve to improve domestic human rights standards, this chapter will therefore analyse how the five Southeast Asian states of Indonesia, Malaysia, the Philippines, Singapore, and Thailand have dealt with human rights. As explained in the first chapter, these five states have been chosen as they have been the more prominent members within ASEAN in the process of establishing the AICHR. Moreover, owing to 72

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their relatively democratic political structures, their peoples’ aspirations and experiences in calling for human rights and democracy, and the comparatively active roles of the civil society and media, they are better placed to spearhead regional human rights advancement than the other five ASEAN members – Brunei, Cambodia, Laos, Myanmar, and Vietnam – which have more restrictive political systems and less emphasis on the international human rights regime.1 Here, I have chosen to study the states in descending order of their receptivity towards an ASEAN human rights mechanism and also their general attitudes to the international human rights movement.2 Hence, case studies of Indonesia, the Philippines, Thailand, Malaysia, and Singapore will be undertaken in turn to detail their experiences in dealing with human rights at the three tiers of state, civil society, and citizenry. The latter two are especially important as they show the level of state receptivity to the citizenry’s human rights concerns, adding an important dimension to the more often reported state reactions to external exhortation on human rights. This exposition is not intended to be an exhaustive analysis of all the various sectors involved in each state’s human rights issues but rather one that highlights the more prominent factors which may have contributed to rights development on the domestic plane, as well as those that encouraged the governments to take up the proposal of having a regional mechanism.3 Dealing first with state practice, it will be seen that each country’s major encounters with human rights – from the struggles for external self-determination from colonial rule, internal self-determination from despotic regimes, the nation-building process thereafter, and the renewed efforts at democratic consolidation – have all contributed to internal human rights development. These are apparent in how the state and people generally perceive human rights, what their priorities

1

2

3

Summary overviews of ASEAN states’ human rights situations and suggestions for policy improvements can be found in the reports of the state, Working Group on the Universal Periodic Review, and other stakeholders at www.ohchr.org/EN/HRBodies/UPR/PAGES/ Documentation.aspx. Discussion with Carlos Medina and Ray Paolo Santiago of the Working Group for an ASEAN Human Rights Mechanism and H. E. Asda Jayanama of Forum-Asia during the ASEAN-ISIS Colloquium on Human Rights (AICOHR), Manila, 15 May 2006. For the annual reports on the human rights situation in these five states, see US State Department Human Rights Reports at www.state.gov/g/drl/rls/hrrpt; Amnesty International at www.amnesty.org/en; Human Rights Watch at www.hrw.org/doc?t=southeast_ asia.

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are, as well as the substantive ways by which the state has assimilated human rights into the domestic system. This will thus reveal both the legal and policy aspects: the protections found in the national constitution and domestic legislation, the presence (or absence) of national policies that pertain to the safeguard of citizens’ rights, the signing or ratification of international human rights conventions (including reservations, actual adherence, and transformation into domestic law and policy), the presence of national human rights commissions, and the attitudes towards the establishment of the AICHR.4 In addition, the countries’ adherence to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) will also be reviewed as not only are they the two treaties common to all five states, but children’s and women’s rights bear special importance in ASEAN policy-making as well as in the operations for AICHR and the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC).5 By and large, as a state’s attitude towards human rights waxes and wanes depending on the political leadership of that particular period, remarkable differences can thus exist from one state to another. Generally speaking, there is no general consensus within ASEAN on human rights (among other issues) as yet, despite the establishment of the AICHR. Operational details such as the body’s five-year work plan and rules of procedure are still being worked out.6 Most critically, the AICHR does not have a declaration, much less a convention, detailing the exact rights that the ASEAN peoples are to possess.7 While things have improved within the five states surveyed here as progressive administrations liberalise, they are still in a state of democratic consolidation, if not transition, according to traditional theories of 4

5

6 7

This will entail only a brief dissection of the issues as deeper discussion of the constitutional and legal protections and the general human rights situation of each of the five states is beyond the ambit of the chapter. ASEAN currently has functional cooperation on issues pertaining to women, youth, and children. See www.aseansec.org/8677.htm (women’s issues); www.aseansec.org/8687.htm (youth issues); and the 2001 Declaration on the Commitments for Children in ASEAN, 4th Meeting of ASEAN Ministers Responsible for Social Welfare, Singapore, 2 August 2001, at www.aseansec.org/579.htm. Consultation with AICHR representative, 8 September 2010. The drafting of the ASEAN Human Rights Declaration is one of the priorities of the AICHR in its first five-year term of operation, ibid. See the express mandate to develop this declaration, Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (AICHR TOR), Thailand, 20 July 2009, para. 4.2.

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democratisation.8 Nevertheless, notable change has been advocated by certain states. For instance, having been successfully elected into office in September 2004, incumbent Indonesian President Susilo Bambang Yudhoyono has embarked on spearheading human rights and democracy within and without the region. In the first half of 2006, amid heightening international pressure for Myanmar to reform and for ASEAN to take action regarding its recalcitrant member, apart from signing a Memorandum of Understanding on bilateral cooperation, Yudhoyono also recounted to the junta Indonesia’s own transition from authoritarianism in a bid to share its democratic experiences.9 Indonesia also engaged another ‘pariah’ of the international community – North Korea – by meeting President Kim Jong Il in June 2006 to ‘discuss ways to reduce tensions from Pyongyang’s nuclear weapons programme and to enhance bilateral relations’.10 Moreover, it is noted that the presence of domestic safeguards is of seminal importance. The four ASEAN states that have national human rights commissions – Indonesia, Malaysia, the Philippines, and Thailand – are markedly more supportive of having a regional rights mechanism than Singapore and the other ASEAN states that do not. Additionally, the democratic experience domestic populations have is also critical to the national human rights climate. For instance, the people of Indonesia, the Philippines, and Thailand possess a history of public demonstration and civil disobedience throughout their tumultuous experience of instituting democracy. Hence, they value their civil-political rights in having a public voice and free choice, and socio-economic rights in the provision of jobs and stable prices among other such rights, and are not afraid to express these opinions in word or through the vote. The political leadership in these states has to be mindful of not overstepping its boundaries lest they are ousted by public dissent or strong opposing factions, Thailand being the most recent case in point.11 8

9

10

11

Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991); Larry Diamond, The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World (New York: Times Books/ Henry Holt and Company, 2008). Ju¨rgen Haacke, ‘ASEAN and Political Change in Myanmar: Towards a Regional Initiative’, 30(3) Contemporary Southeast Asia (2008) 351; ‘Did SBY’s Visit to Myanmar Change Anything?’, SEAPSNet, 6 March 2006. ‘SBY’s Deft Handling of Indonesia’s Foreign and Domestic Policies’, SEAPSNet, 23 May 2006. Widespread public dissent and corruption allegations caused the former Thai prime minister, Thaksin Shinawatra, to be toppled by the junta in a coup. However, the junta

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It must be remembered, however, that while the presence of state support for human rights, existence of domestic measures, and the vibrancy of civil society and domestic fervour are all significant to the progress of regional human rights and to a certain extent help to facilitate better human rights standards, they are not foolproof indicators of the actual enjoyment of human rights by the domestic populations. Singapore is noted for its reserved stance towards human rights, and yet it is often recognised that its citizens enjoy more advantages especially in the socio-economic areas than people in neighbouring states. Hence, to complete the chapter’s analysis, an assessment of the human rights standard of each state will be given. Only by uncovering the serious and urgent violations that need to be addressed, it can be better assessed what the political will is toward rectifying domestic inadequacies and improving the chances of ensuring the regional human rights system actually executes its mandate of promoting and protecting the human rights of the ASEAN people’s.12 Owing to the lack of comprehensive human rights reporting on the five states by Southeast Asian or national sources, the studies in this chapter will rely on the annual reports of Amnesty International (AI), Human Rights Watch (HRW), and the US State Department Bureau of Democracy, Human Rights, and Labor (‘US State Department’). Admittedly, the Western emphases on certain types of rights might be unavoidable in the reliance of such sources. This lacuna in information sources and networks in the ASEAN region is regrettable but the AICHR intends to improve on this area in its first phase of work.13 Nonetheless, this might be limited in scope as the AICHR has no powers of investigation or to hear individual complaints. It possesses the competence to draft thematic reviews on topics that are amenable to all ten ASEAN member states.14 Due to resource constraints, ASEAN states have also stated that they do not want AICHR’s review mechanisms to repeat their heavy international reporting obligations currently under the UN human rights treaty system.15

12 14

and government it installed showed themselves to be incompetent and ‘power-hungry’, causing the people to protest. See ‘Flip-Flop at the Helm of Thai Politics’, SEAPSNet, 28 June 2007. 13 AICHR TOR, supra note 7, paras. 1.1 and 2.3. Supra note 6. 15 AICHR TOR, supra note 7, para. 4.12. Based on author’s anonymous sources.

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Case-studies of Indonesia, the Philippines, Thailand, Malaysia, and Singapore Indonesia Looking first at Indonesia, it is quite remarkable that in spite of only having had its first free and fair presidential elections in 2004, it has tried to take the regional lead in human rights and democracy under Susilo Bambang Yudhoyono’s leadership. Being conscious of its democratic status, it has tried to encourage Myanmar on the road to democracy, engage North Korea and farther afield, and was resolute in joining the United Nations (UN) Interim Peacekeeping Force in Lebanon (UNIFIL) under Security Council Resolution 1701 in 2006.16 Moreover, as will be seen in Chapter 4, Indonesia has proved to be a forerunner on regional efforts towards the building of an ASEAN human rights mechanism culminating in the launch of AICHR as well as in the efforts to build the ASEAN Political Security Community. In all, Indonesia’s foreign policy has broadened tremendously and taken on roles of mediation, human rights, and democracy on the international plane. These changes are remarkable in the light of Indonesia being in the early stages of democracy, emerging from its decades-long authoritarian rule under Sukarno (1950–67), then General Suharto (1967–98), and the rapid succession of the ineffective administrations under Bacharuddin Jusuf Habibie (1998–9), Abdurrahman Wahid (also known as Gus Dur) (1999–2001) and Megawati Sukarnoputri (2001–4). However, Indonesia still has a long way to go in improving its human rights standards. Besides the longstanding socio-economic problems of poverty, development, and unemployment; civil rights are undermined by the military which continues its tenacious hold over certain sections of the political sphere. Gross abuses of human rights like mass killings were committed during the reign of Sukarno and Suharto. While the situation has improved under subsequent administrations, extra-judicial killings, disappearances, and torture are still being carried out by the security forces.17 With such a legacy, not to mention the vigorous infighting 16 17

‘Indonesia Set to Send Troops to Lebanon’, International Herald Tribune, 1 September 2006. For a list of human rights abuses committed by the Indonesian security forces, see e.g., the US State Department, Bureau of Democracy, Human Rights and Labor, 2009 Human Rights Report: Indonesia, at www.state.gov/g/drl/rls/hrrpt/2009/eap/135992.htm. Indonesia has not responded positively to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston’s, requests for a country visit. See also Alston’s country communications from 2006–9 at www.extrajudicialexecutions.org/indonesia.

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among the parliamentary factions, it has been difficult for human rights to arise, much less be respected, grow, and flourish. Nevertheless, Indonesia has revolutionised the way it treats democracy and human rights because of the experiences of its tumultuous history, especially those of the last decade. This is due to an assortment of factors, not least that the Indonesian people were tired of the violations committed during authoritarian rule and began to strongly protest. Civil society, grassroots organisations and the citizenry made increasing demands for accountability from the state and its agents over violence against civilians. Also, growing impatience over governmental ineptitude in controlling inflation and curbing unemployment saw the people insisting the government address these issues. In the face of such pressure, the government and military did respond positively, albeit gradually. This was true even during Suharto’s notorious regime and has been especially so in this newly democratic period as political leaders realise human rights cannot be ignored or else they risk the people’s dissatisfaction and vote.18 Like many of its neighbours, Indonesia’s initial foray into human rights was for the cause of external self-determination from its Dutch colonial masters. During the Second World War when Japan claimed the Dutch colony of Indonesia, Indonesian nationalists Sukarno and Mohammed Hatta collaborated with the Japanese as a means to future independence.19 When the Japanese surrendered in August 1945, Sukarno and his resistance forces unilaterally declared independence and set in place the first constitution which clearly enunciated, ‘freedom is the inalienable right of all nations, colonialism must be abolished . . . as it is not in conformity with humanity and justice’.20 The Indonesian national identity – Pancasila – was also spelt out formally within this document.21 The Pancasila advocates that the diverse Indonesian people holding different ethnicities and beliefs would share a common national identity and be rooted in the belief of ‘One God’, the upholding of humanitarianism, the system of representative government, and to work for social justice and prosperity.22 18

19

20 21 22

It must be noted that in Asia such demands are seldom phrased as ‘human rights’ but more as security and socio-economic issues. This will be explained in Chapter 5. Anthony L. Smith, ‘Indonesia: Transforming the Leviathan’, in John Funston (ed.), Government and Politics in Southeast Asia (Singapore: ISEAS, 2001), 74 at 76. Ibid. Also, 1945 Constitution of Indonesia, Preamble. 1945 Constitution of Indonesia, ibid., Preamble. Jacques Bertrand, ‘Democratization and Religious and Nationalist Conflict in Post-Suharto Indonesia’, in Susan J. Henders (ed.), Democratization and Identity: Regimes and Ethnicity in East and Southeast Asia (Lanham, MD: Lexington Books, 2004), 177 at 179.

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Sukarno’s proclamation of independence in 1945 inevitably led to a period of violent nationalist struggle against the Dutch which had not relinquished its claim to the Indonesian archipelago. By December 1948, he and other independence fighters were imprisoned.23 However, their military supporters – a force numbering about 65,000 troops – continued the resistance movement until the Dutch finally left Indonesia in December 1949.24 The vital role of the military in gaining independence cemented its influential status in Indonesia’s political governance.25 Despite ascending to the presidency, Sukarno’s position was constantly threatened by rival factions in the military while the communist and Islamic movements also sought to dilute his power. Nonetheless, it was curious that even as Sukarno tried his best to consolidate leadership, the authoritarian model of government was not his outright option. The 1950s saw a phase in which Indonesia experimented with the liberal democratic model of government.26 However, disillusioned with the chaos ensuing from the attempts at ‘Western’ parliamentary democracy, Sukarno moved to entrench sole leadership. He justified this by declaring in 1957 that Indonesia had ‘experienced the excesses which result from effectuating an imported idea . . . which is not in harmony with our national soul’.27 He went on to promptly suspend the ‘liberal’ 1950 constitution and reverted to the 1945 constitution which gave the president more powers. Banning elections in 1959, Sukarno promulgated ‘guided democracy’ to foster the Indonesian values of consensus, consultation, and mutual assistance.28 In addition, although the 1945 Constitution also provided for basic civil liberties like equality before the law and the freedoms of association and assembly, expression, and religion; and socio-economic protections like the right to work and live in dignity, the right to education, and economic development based upon the principles of the family system, including state protections for the poor and destitute children, 23

24 26

27

28

Geoff Simons, Indonesia: The Long Oppression (Basingstoke/New York: St. Martin’s Press, 2000), at 137–44. 25 Smith, supra note 19, at 76. Ibid. Ibid., at 77. Also, Philip J. Eldridge, The Politics of Human Rights in Southeast Asia (London: Routledge, 2002), at 117. Anthony Reid, ‘Writing the History of Independent Indonesia’, in Wang Gungwu, Nation-Building: Five Southeast Asian Histories (Singapore: Institute of Southeast Asian Studies, 2005), at 77–8. Reid, ibid., at 79; Smith, supra note 19, at 77; Bertrand, supra note 22, at 180.

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what really followed was a period of strong repression and gross violations of human rights under his rule.29 Throughout his presidency, Sukarno sought to maintain his power by facing off the army, communist, and Islamist groups. All this manipulation worked against him and ultimately led to his ouster by General Suharto in 1967. On 30 September 1965, six army generals were accused of an attempted coup and executed. Under the guise of cracking down on the perpetrators – alleged to be the communists, General Suharto took the opportunity to seize power by purging his rivals.30 Not only were the communists crushed but the Chinese population was also persecuted. In all, between half to a million people were killed in the two year crackdown.31 Sukarno had little choice but to stand by as Suharto assumed the presidency in 1966 and full presidential powers in 1967. Through Suharto’s ascension to power, the political dominance of the Armed Forces of the Republic of Indonesia (Angkatan Bersenjata Republik Indonesia – ABRI) was established.32 Suharto chose to concentrate on nation-building through economic development and brooked no dissent in his leadership. Carrying out the development-centred ‘New Order’ for Indonesia, socio-economic factors improved and living standards rose for most Indonesians.33 However, the people were repressed in many other respects. For instance, the right to political participation was severely curtailed. Political parties were weakened and only Sukarno’s party – Golongan Karya (Golkar) – and two other ‘proxy’ parties – Partai Persatuan Pembangunan (PPP) and Partai Demokrasi Indonesia (PDI) – were permitted to function.34 Elections though regular were fraught with fraud and intimidation. The military also strengthened its position in Indonesia’s administration as its officers often took up many governmental positions. The freedoms of information and opinion were compromised as the media was curtailed and journalists were jailed. In addition, the freedom of association and assembly was strictly limited.35 It was also during Suharto’s term in office that state-sanctioned violence and other gross abuses of human rights occurred against ordinary citizens, especially since the state was suspicious of any overtly Islamic, Christian, or other organisations with 29

30 32 33

Eldridge, supra note 26, at 144; Kenneth Christie, ‘Indonesia’, in Kenneth Christie and Denny Roy (eds.), The Politics of Human Rights in East Asia (London; Sterling, VA: Pluto Press, 2001), at 125–7. 31 Smith, supra note 19, at 77. Christie, supra note 29, at 127. Bertrand, supra note 22, at 81; Smith, supra note 19, at 77. 34 35 Smith, ibid. Ibid. Eldridge, supra note 26, at 91.

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religious affiliations as they were perceived as a threat to the vision of national cohesiveness enshrined in the Pancasila. The use of draconian tactics against those who threatened national security was common throughout the thirty years of Suharto’s presidency. Curbing these ‘subversive elements’ was said to have caused an estimated number of about 4,000 unresolved killings of young men between 1983 and 1985.36 Public anger rose so high against these ‘disappearances’ such that riots were sparked off in Tanjung Priok in 1984.37 Even more rights violations were carried out against the separatist movements of East Timor (now Timor Leste), Irian Jaya (West Papua), and Aceh. In East Timor alone, over 200,000 people were killed from the time of Indonesia’s annexation in 1975 till its independence in 1999 after the UN-organised referendum.38 In the Aceh province, unhappy with being a political pawn by Jakarta politicians and the unjust economic policies siphoning off its wealth from the oil and gas revenues to the central government’s coffers, intensified the Acehnese fervour for selfrule in the 1970s and 1980s. The campaign for self-government was intensified by the Acehnese insistence for reparation and justice for the human rights violations committed by ABRI, as well as the wish for an Islamic state and the imposition of Syariah law.39 The violent repression, rapes, and murders by the Indonesian military led to thousands of deaths, and the decades of fighting caused widespread poverty and lack of development.40 As Suharto’s rule tightened and human rights violations by the security forces in the name of protecting Pancasila values increased, Indonesians gradually became more vocal in opposing the wanton abuse of the army’s ‘dwifungsi’ – the dual function of political and military power.41 36 37

38 39

40 41

Smith, supra note 26, at 79; and Bertrand, supra note 22, at 181. Sidney Jones, ‘Structural Adjustment and Democratization: The Case of Human Rights Organizations in Indonesia’, in Remonda Bensabat Kleinberg and Janine A. Clark (eds.), Economic Liberalization, Democratization, and Civil Society in the Developing World (London/New York: Macmillan/St. Martin’s Press, 2000), at 31. Criticisms have been directed against Indonesian human rights courts, including the one that judged the disproportionate force used by the army in the Tanjung Priok incident. See e.g., Priyambudi Sulistiyanto, ‘Politics of Justice and Reconciliation in Post-Suharto Indonesia’, 37(1) Journal of Contemporary Asia (2007), 73. Smith, supra note 19, at 79. Pierre-Antoine Braud and Giovanni Grevi, The EU Mission in Aceh: Implementing Peace, EU Institute for Security Studies, Occasional Paper No. 61 (December 2005), at 5. Bertrand, supra note 22, at 192. Jun Honna, Military Politics and Democratization in Indonesia (London/New York: Routledge, 2003), at 8–52.

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The rising civil society played a significant role in this respect. From the late 1960s and 1970s, the economic growth fuelled by Suharto’s ‘New Order’ policies brought about higher income and education levels, leading to an educated middle class. It was from this group that nongovernmental organisations (NGOs) drew their human resources to fuel their movements.42 Students, journalists, lawyers, other professionals and intellectuals joined these grassroots movements which voiced out concerns particular to them. These public actions consequently influenced profoundly the other sectors of Indonesian society like the farmers, poor and dispossessed, the labour movement, and women on issues that mattered to them. For instance, ‘land, wages and working conditions . . . violence and harassment against women and corruption at all levels’ were taken up by NGOs.43 These included the International Forum for Indonesian Development (INFID), Women’s Solidarity, Kalyanamitra, as well as the Legal Aid Institute (Yayasan Lembaga Bantuan Hukum Indonesia – YLBHI) which raised the profile of human rights abuses committed by the government and its agents while providing pro bono legal services.44 Human rights awareness grew steadily throughout the 1980s and 1990s, and calls for accountability and an end to state abuse were clearly attested when the public protested the high-profile shooting incidents by the ABRI in Lampung (1989), Dili (1991), Haur Koneng (1993), and Nipah (1993).45 In particular, the Dili incident in East Timor raised so much international outrage such that in order to appease the public, Suharto had to establish a National Commission of Inquiry (Komisi Penelitian Nasional – KPN) to investigate the matter. Thereafter the Military Honour Council was formed to censure those involved in the killings. This military court dismissed nineteen officers and convicted ten – with the maximum sentence being only eighteen months.46 The public demanded another official inquiry for the Haur Koneng episode, but the government eventually turned this down as police investigations had rounded up the perpetrators.47 Aware of the volatility and power of public anger, Suharto warned the army to be restrained in the use of force. At the same time, these incidents also made the army realise it was no longer invincible – the public could force it to account for its acts.48 42 43 44 45

Jones, supra note 37, at 26. Eldridge, supra note 26, at 121. For NGOs and labour rights, see Jones, ibid., at 25–43. For an incisive view of NGOs in Indonesia, see Eldridge, ibid., at 121–5. 46 47 48 Honna, supra note 41, at 92–4. Ibid., at 92. Ibid., at 93. Ibid., at 92.

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To improve the image of his administration in the eyes of the domestic and international audience, Suharto established the Indonesian Commission of Human Rights (Komisi Nasional Hak Asasi Manusia – Komnas HAM) in June 1993 for investigation and advocacy purposes.49 Although derided as a governmental arm, Komnas HAM has slowly gained recognition for its work in investigating ABRI abuses. That said, Komnas HAM was and still is constrained by its mandate and has the difficult task of straddling the fine line between public accountability and having to deal with ABRI and other state abuses.50 Nonetheless Komnas HAM has helped to bring human rights awareness to the army, where before the military had shied away from the strident NGO lobbying. A notable breakthrough was the publication of the ABRI guidebook on human rights protection in line with international standards and the Universal Declaration of Human Rights (UDHR) – when it had long denied the feasibility of these standards on the grounds that they contravened Pancasila norms.51 The handbook stated clearly what international human rights violations were and how to avoid them.52 Yet despite the army’s acquiescence of the existence of international human rights standards, this has not signalled the end of military abuses as human rights reports from international agencies attest.53 The gathering strength of these popular movements enabled Indonesians to see that the state could be held accountable for all its misdeeds. After thirty years of authoritarianism, Indonesians were increasingly dissatisfied with Suharto’s regime of corruption, collusion, and nepotism (korupsi, kolusi dan nepotisme, often abbreviated as ‘KKN’). The collapse of the Indonesian economy in December during the wave of financial collapse that hit Asia in 1997 was the last straw and widespread riots broke out against Suharto’s leadership and escalating inflation. During the unrest, ethnic tensions again flared up. Chinese Indonesians were again the victims of lootings, killings, and rapes but the security forces did nothing to stop the persecution. Instead, it was alleged that the military-linked factions also carried out systematic attacks on the ethnic Chinese community.54 Things came to a head and in 1998 Suharto had to resign when the army led by General Wiranto refused to quell the protests against him.55 49 51 54 55

50 Ibid., at 97. For a review of Komnas HAM, see Eldridge, supra note 26, at 145–7. 52 53 Honna, supra note 32, at 103–4. Ibid. Supra note 17. Reid, supra note 27, at 81; and Smith, supra note 19, at 79. Smith, supra note 19, at 79.

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Post-Suharto, the successive governments of Jusuf Habibie, Abdurrahman Wahid, Megawati Sukarnoputri, and the incumbent Susilo Bambang Yudhoyono implemented various policies to bring about the reform and liberalisation of Indonesian society as the people demanded. Where Suharto established Komnas HAM in 1993, ratified the CEDAW and CRC in 1984 and 1990 respectively, and cooperated with the International Labour Organization (ILO) to improve labour rights, each of the other presidents brought their own changes to enable empowerment for the Indonesian people.56 However, the most radical were perhaps Habibie’s because as interim president, he had to respond to the people’s clamour for ‘reformasi’ – political and economic reform – right after Suharto stood down from office. Habibie liberalised the media by revoking the 1984 law which allowed the cancellation of press publication licences and instituting Law No. 9 of 1998 on the ‘Freedom to Express One’s Views before the Public’.57 Political freedoms were upheld during this period as political prisoners were released, new political parties were allowed, parliamentary adjustments made, and free elections were held in 1999. Nonetheless, there was not the open restitution of civil liberties especially with respect to the media and the holding of opinions. Habibie had exhorted that in the process of Indonesia’s reform, the freedom of expression needed to be exercised responsibly in line with Pancasila values through laws and ‘a maturing culture of democracy’.58 International human rights were also acknowledged with Habibie’s government swiftly ratifying ILO conventions pertaining to the right to organise, minimum age of employment, gender-based wage discrimination, and the elimination of forced labour.59 The Convention against Torture (CAT) and the Convention on the Elimination of Racial Discrimination (CERD) were ratified in 1998 and acceded to in 1999 respectively.60 Indonesia had also announced in January 1998 a National Plan of Action on Human Rights (1998–2003) to incorporate international human rights treaty commitments into domestic legislation, improve human rights awareness and public education. Unfortunately, however, this has not resulted in any significant policy follow-up or substantive improvements even after the National Plan of Action on

56 60

57 58 59 Eldridge, supra note 26, at 131 and 144. Ibid., at 133. Ibid. Ibid. Ratification status of UN human rights conventions at http://treaties.un.org/Pages/ Treaties.aspx?id¼4&subid¼A&lang¼en.

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Human Rights (2004–9).61 To entrench human rights further into the national consciousness, a Bill of Rights was even introduced into the constitution under Chapter XA, thereby enlarging the standing protections that were provided by Article 28.62 Despite these reforms, Habibie’s government was not as revolutionary as the people had hoped. It also gave the impression that it was a continuation of Suharto’s regime as Habibie was his close ally and furthermore had reformed the Indonesian army ABRI into Tentara Nasional Indonesia (TNI).63 It was unsurprising therefore that in the 1999 elections the Indonesians voted for the Indonesian Democracy Party – Struggle (Partai Demokrasi Indonesia Perjuangan – PDI-P) and Abdurrahman Wahid assumed presidency. However, soon impeached for poor economic management and alleged corruption, he was replaced by Megawati within two years in 2001. Like her predecessors, Megawati did not fulfil the aspirations for reformasi. Her cabinet comprised many senior army officers, thus enabling the military to retain its political strength when civil society was pressing for a strong civilian government.64 With the quick succession of administrations, Indonesian political institutions of the constitution – the executive, legislature, and judiciary – remained largely unchanged and endemic corruption persisted. Displeased with Megawati and believing that Yudhoyono could be a genuine advocate of reformasi and bring the armed forces under firm civilian control, Indonesians elected him into office in the 2004 elections.65 Right from the beginning, Yudhoyono has consistently exhorted that he is committed to ‘Indonesian unity, economic recovery, eradication of corruption and reform of the justice system’.66 Improvement to socio-economic rights is top of the agenda for most Indonesians, with surveys in August 2003 showing that about two-thirds of the respondents deemed this most crucial.67 Although political infighting in the new 61

62

63 64

65

66

Indonesia National Plans of Action on Human Rights at www2.ohchr.org/english/issues/ plan_actions/index.htm. Eldridge, supra note 26, at 145. See also 1945 Constitution of Indonesia, Chapter XA, art. 28. Smith, supra note 19, at 80; and Bertrand, supra note 22, at 182. Iain Henry, ‘Civil–Military Relations in Post-Suharto Indonesia and the Implications for Democracy Today’, 2(2) Australian Army Journal (2005) 149, at 154. Ibid., at 155–6. For a concise review of Indonesia during that period, see Takashi Shiraishi, ‘Politics in Indonesia: Current State and Future Outlook’, 12(1) Asia-Pacific Review (2005) 25. 67 Shiraishi, ibid., at 31. Shiraishi, ibid., at 36.

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democracy threatened the economy, by the end of 2005 Yudhoyono finally chose policies that would enable quick economic growth, together with a team capable of delivering results. This was coupled with the removal of fuel subsidies – an unpopular move that saw his approval rating fall – and firm measures to eradicate corruption, including the prosecution of a former minister of religion, Suharto’s half brother (Probosutejo), members of the national election commission, and regional governmental officials.68 In particular, Indonesia’s Supreme Court sentenced Probosutejo to four years’ imprisonment, state compensation of US$10 million and a 30 million rupiah fine in 2005.69 It was only when Yudhoyono assumed presidency in 2004 that Aceh achieved autonomous status with ground-breaking privileges when the Memorandum of Understanding (MOU) – was signed in Helsinki in August 2005.70 Subsequently, the somewhat contentious Law on the Governing of Aceh (Undang-Undang Pemerintahan Aceh) was passed through legislature to implement the agreements made in the MOU in July 2006,71 while Aceh voted former Free Aceh Movement (Gerakan Aceh Merdeka – GAM) separatist leader Irwandi Yusuf as its governor in the first local elections for the province.72 With respect to Irian Jaya (West Papua), oppressive measures have been likewise used against the resistance movements, and the military has been widely observed to carry out extra-judicial abuses through the years.73 Problems persist in Papua,74 where the fighting continues despite international calls for an end to the forceful measures. Indonesia has continually warned the US, Australia, and other states not to interfere in its internal affairs.75 68

69

70

71

72 73

74

75

R. William Liddle and Saiful Mujani, ‘Indonesia in 2005: A New Multiparty Presidential Democracy’, 46(1) Asian Survey (2006) 132, at 137–8. ‘Suharto’s Half-Brother Fined, Jailed for Four Years’, ABC News Online, 30 November 2005, at www.abc.net.au/news/newsitems/200511/s1519544.htm. Memorandum of Understanding between the Government of the Republic of Indonesia and the Free Aceh Movement, Helsinki, Finland, 15 August 2005. Damien Kingsbury, ‘Indonesia in 2005: Cautious Reform’, 47(1) Asian Survey (2007) 155, at 156; ‘One Problem after Another? Disputes over Aceh’s Proposed Law?’, SEAPSNet, 11 July 2006. ‘Aceh Votes for Major Change’, BBC News, 12 December 2006. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Mission to Indonesia (November 2007), UN Doc. A/HRC/7/3/Add.7 (10 March 2008). International Crisis Group, Indonesia: The Deepening Impasse in Papua, Asia Briefing No.108, 3 August 2010. Esther Heidbu¨chel, The West Papua Conflict in Indonesia: Actors, Issues and Approaches (Wettenberg: Johannes Herrmann Verlag, 2007), at 61, 117.

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While Yudhoyono is paying more attention to the civil, political, social, economic, and cultural exigencies of Indonesia, and that the country finally ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 2006, there remains much to be done.76 Many human rights observers complain that Indonesia is not living up to its international commitments although Indonesia is a party to all the nine major international human rights treaties.77 Despite the ASEAN community strongly advocating that women’s and children’s rights be upheld, Indonesia’s observance of the CEDAW and CRC remain lacklustre. The CEDAW Committee commented in its 1998 Report that Indonesia should ‘take stronger measures to address the contradiction that currently exists between the Government’s state commitment to the principles contained in the Convention and the actual situation facing women in Indonesia’.78 Moreover, while the CRC Committee commended the laws set in place to protect children in the country, it observed pointedly that the ‘insufficient guarantees of independence and impartiality of Komnas HAM, which hinder it from carrying out its mandate fully, might also impair the work of the National Commission for Child Protection’.79 In addition, the US State Department stated in its 2006 human rights report on Indonesia that extra-judicial killings, disappearances, and torture continue to abound given the heavy-handedness of security personnel; the situation did not appear to have improved much according to the 2009 report.80 This has also been consistently reiterated by Human Rights Watch for years.81 This problem of abuse by state agents is even greater in areas of conflict like Poso, Maluku, and Papua.82 76 77

78

79

80

81

82

Supra note 60. The list of the nine major human rights treaties can be found at www2.ohchr.org/ english/law. Indonesia has signed but not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) and Convention on the Rights of Persons with Disabilities (CPD), see supra note 60. Concluding Observations of the Committee on the Elimination of Discrimination against Women: Indonesia, UN Doc. A/53/38, 14 May 1998, paras. 262–311, at para. 304. Report on the 35th Session of the Committee on the Rights of the Child, UN Doc. CRC/ C/137 (2004), paras. 21–115, at para. 40. US Department of State, Bureau of Democracy, Human Rights, and Labor, Human Rights Reports: Indonesia (1999–2009), at www.state.gov/g/drl/rls/hrrpt/index.htm. See e.g., Human Rights Watch, Indonesia: Reform of Military Business, HRW Background Briefing, 16 February 2007. See e.g., Phil Robertson, ‘Indonesia’s Not So Well-Kept Secret’, Jakarta Globe, 23 June 2010.

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Moreover, while the resolution of the fighting in Aceh must be given due credit, Indonesia remains hostile to international scrutiny and criticism over its handling of domestic tensions. Reform of the Indonesian army is also painfully slow after the landmark law (Law No. 34) in 2004 passed by the legislature for the reform of the armed forces. Human rights activists like Usman Hamid (executive director of the NGO, Kontras) and Lisa Misol (senior researcher of Human Rights Watch) have exhorted that presidential impetus is needed to accelerate the stalling process of reform.83 There also continues to be infringements on the freedoms of speech, association and assembly, and religion, despite Yudhoyono’s attempts to ‘liberalise’ these areas. The US State Department 2006 Report showed that the Alliance of Independent Journalists (AJI) noted that at least fifty-three journalists (including one who was murdered) were threatened in terms of prosecution and verbal and physical violence.84 Institutionally, the judicial system has also remained ineffectual. The human rights courts which were rapidly established by the Habibie government through a mere regulation (instead of a law) because of the international criticism of East Timor atrocities confused the interpretation of ‘genocide’ and ‘torture’ according to international standards, thereby disrupting the judicial process.85 Additionally, although the courts have been more willing to try powerful entities, sentencing remains disproportionate to the crime committed. For instance, the maximum term for the murder of fifty-seven Acehnese in May 2000 by twenty-four soldiers and a civilian was ten years’ imprisonment.86 Moreover, senior officers have continually been shielded and go unpenalised, General Wiranto being a prime case in point. Despite being a mastermind of many of the crimes against humanity committed in East Timor, he nonetheless took part in the 2004 presidential elections.87 In September 2005, Indonesia’s first permanent human rights court in South Sulawesi dismissed charges against Brimob Brigadier General Johny Wainal Usman and South Sulawesi Police High Commissioner Daud Sihombing, declaring that the two thousand police attacks against almost a hundred Papuans did not constitute ‘crimes against humanity’. Meanwhile, the ad hoc Human Rights Tribunal for East Timor concluded 83 84 85 87

‘Presidential Push Needed on TNI’s Internal Reform’, Jakarta Post, 27 February 2007. 2006 US State Report on Indonesia, supra note 9. 86 Eldridge, supra note 26, at 148. Smith, supra note 19, at 102. ‘UN Turns up the Heat on Wiranto over War Crimes’, Sydney Morning Herald, 24 March 2004.

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its trial phase in Jakarta in August 2003, passing light sentences of mainly three to five years for atrocities in Liquica, Dili, and Suai in 1999.88 However, the UN Commission of Experts sent to Indonesia subsequently evaluated the ad hoc court and, in its 2006 Report, advised that there be retrial of the perpetrators within six months or that they be tried before international tribunals, to which Indonesia vehemently protested.89 In addition to judicial means, legislation was passed in September 2004 to establish a Truth and Reconciliation Commission to investigate the violations under the Sukarno and Suharto regimes, as well as in Aceh as it was recognised that judicial means of justice might not always produce the desired results, especially if its simmering tensions flared up.90 Thus, it was hoped that human rights violators would voluntarily surrender and reform so as to be granted amnesty and pardon – even if the victim did not give consent. Although such commissions are expected to let the courts try cases which have substantial evidence, cases which the commission has resolved cannot be re-tried in a human rights court. It is said that ‘the idea of reconciliation could weaken concern for justice, even serving to extend the perpetrators’ impunity’.91 In addition, the human rights court established in Aceh is not given retroactive powers to try abuses committed during the years of conflict as earlier agreed in the peace agreement of 2005. It only has powers to try human rights violations committed after the MOU was signed – powers deemed to fall severely short of delivering justice to the Acehnese people.92 Perhaps one of the most urgent things for Indonesia to do now to show its commitment to human rights and democracy is to accord due respect to Komnas HAM.93 As the most important state-linked institution 88

89

90 92

93

US State Department, Bureau of Democracy, Human Rights and Labor, 2006 Human Rights Report: Indonesia, at www.state.gov/g/drl/rls/hrrpt/2006/78774.htm. For an analysis of the ad hoc court, see Suzannah Linton, ‘Unravelling the First Three Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor’, 17(2) Leiden Journal of International Law (2004), 303. US State Department, Bureau of Democracy, Human Rights and Labor, 2005 Human Rights Report: Indonesia, at www.state.gov/g/drl/rls/hrrpt/2005/61609.htm. See also Report of the United Nations Independent Special Commission of Inquiry for Timor Leste, Geneva, 2 October 2006, at www.ohchr.org/Documents/Countries/COITimorLeste.pdf. 91 Eldridge, supra note 26, at 149. Ibid. ‘Indonesia: Aceh Rights Court Must Address Past Abuse’, Human Rights Watch, 26 May 2006, at http://hrw.org/english/docs/2006/05/26/indone13463.htm. See Compilation Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(B) of the Annex to Human Right Council Resolution 5/1 (Report for Indonesia’s Universal Periodic Review), UN Doc. A/HRC/WG.6/IDN/2 (31 March 2008).

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responsible for human rights in Indonesia, the government would do well not to obstruct the duties the national human rights commission is tasked with.94 To this end, real powers and adequate resources must be given such that the proper functioning of its mandate – educating the public about human rights and encouragement on the ratification of UN human rights treaties, as well as reporting and rectifying Indonesian rights practices in line with the Constitution, Pancasila, and UN treaties Indonesia has acceded to – can be carried out. Although it has gained credibility for consistently condemning the security forces’ violence, human rights activists remain critical; so much so that that the South Asia Human Rights Documentation Center’s (SAHRDC) 2000 Report has faulted these NGOs for not taking greater recognition of Komnas HAM’s work.95 Institutionally, however, Komnas HAM is constrained by not being constitutionally enshrined, but merely established by presidential decree and the 1999 Human Rights Act. Moreover, despite the work that it does, it is sometimes perceived as a governmental apologist at international fora, while its budget is decided by parliament and costs paid mostly by the state secretariat.96 The efficacy of Komnas HAM is also hindered by ‘undue secrecy and failure to publish comprehensive catalogue and descriptions of all cases . . . needed by legal aid lawyers’,97 as well as incompetent Commissioners who have neglected their duties.98 The Commission also often fails to respond to individuals’ complaints, contributing to a ‘crisis of confidence in the institution’.99 State bodies also lack respect for Komnas HAM, such that advice to the state to act responsibly in Ambon in 1999 fell on deaf ears. Its 2004 report categorising the security forces’ gross violations of human rights like torture and razing of villages in Wasior (2001) and Wamena (2003) as ‘crimes against humanity’ was dismissed by the Attorney-General’s Office as being inadmissible and not up to standard.100 In all, while much remains to be done to improve the standard of human rights in Indonesia, it is a positive sign that some necessary reforms are already being undertaken by Yudhoyono. However, there 94

95

96 98 100

US Department of State, Bureau of Democracy, Human Rights, and Labor, Human Rights Reports: Indonesia (2009), supra note 80. South Asia Human Rights Documentation Center (SAHRDC), Komnas HAM – The Indonesian Human Rights Commission: A Long Way to Go, Human Rights Features, HRF/28/00, 6 December 2000. 97 Eldridge, supra note 26, at 145. Ibid., at 147. 99 SAHRDC, Komnas HAM, supra note 95. Ibid. US State Department, Bureau of Democracy, Human Rights and Labor, 2005 Human Rights Report: Indonesia, supra note 89.

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are deep-seated issues involving the rule of law and governance which need to be tackled incisively by the government for real and effective protection of human rights. The former law dean of the University of Indonesia, Hikmahanto Juwana, has commented that there are six reasons for the lag between Indonesia’s international treaty obligations for human rights and the necessary transformation into domestic legislation and subsequent enforcement. The first reason he gives is that the framework for human rights promotion in Indonesia started off on the wrong footing. It was reactionary in response to external pressures from the international community and NGOs rather than a genuine attempt at reform.101 Second, he states that Indonesia does not have the ‘supporting infrastructure’ necessary to carry out its international obligations effectively. Third, this is exacerbated with the courts’ practice of letting human rights offenders off lightly.102 Fourth, there has not been the necessary process of internalisation of human rights norms into Indonesian society as well as its legal and political mindset.103 The fifth and sixth reasons he gives are that Indonesia has not introduced domestic legislation to be in line with its international obligations and has even passed laws that conflict with the latter.104 Hence, Juwana also notes that given Indonesia’s large geographical area and diverse cultures, it would not be possible to expect a uniform system of human rights to work through mere legislation.105 This is especially so as Indonesian lawmakers ‘tend to translate foreign legislation’ instead of taking into account the local political and legal environment. This causes an abrupt introduction of foreign concepts into the domestic system which the people are unable to properly utilise due to these new and unfamiliar values.106 To this end, he exhorts that a ‘bottom-up’ approach be used such that local exigencies be properly accommodated as human rights transformation takes place.107

The Philippines Another stalwart proponent of human rights and the implementation of a regional mechanism is the Philippines. It has the longest experience of democracy among all the Southeast Asian states due to its American 101

102 106

Hikmahanto Juwana, ‘Human Rights in Indonesia’, in Randall Peerenboom, Carole Petersen, and Albert H.Y. Chen (eds.), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France, and the United States (New York: Routledge, 2005), 364 at 365. 103 104 105 Ibid., at 366. Ibid. Ibid. Ibid., at 379. 107 Ibid., at 380. Ibid.

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colonial past. Theoretically, it may seem to be the most ardent supporter in the region as evidenced by its flourishing civil society, free media, and regular elections. Moreover, human rights are accorded constitutional protection in a Bill of Rights, while most of the nine major UN human rights conventions have been ratified.108 However, serious impediments ingrained in the Philippine system hinder human rights progress and the people’s actual possession of them. For one, poverty and unemployment continue to plague the country while human insecurity issues abound. Moreover, the exercise of the democratic vote has always been seriously undermined by corruption and ‘pork-barrel politics’ (the use of state money on projects in the hope of securing constituent support). In more recent years, even the widely lauded free media is increasingly threatened as the safety of journalists is compromised, especially during the administration of former president, Gloria Macapagal Arroyo. The crackdown on terrorist suspects and ongoing insurgency against separatist movements in the South has also taken on new levels of brutality and it is foreseen that the new antiterror legislation, Republic Act No. 9372 (Human Security Act) of 2007,109 will exacerbate the situation.110 To be sure, the Philippines may enjoy relatively more civil liberties than the rest of the Southeast Asian nations. Its experience with democracy began all the way back when the US Congress gradually introduced democratic practices during its colonial administration after Spain ceded the colony to the US in 1898. The Philippine government that was subsequently formed was inevitably modelled on the American system, though the ruling elites under the former Spanish system continued to wield political and economic power.111 The ruling class maintained its elite position even after the Philippines became independent in 1946 and little power was returned to the general population. Moreover, the warravaged country caused post-independence administrations to remain dependent on the US for economic, military, and political aid. It was observed that ‘corruption in government [and a tendency towards nepotism] strangled the development of Philippine democracy from the 108

109 110 111

The Philippines has ratified all the nine major human rights treaties except for the Convention on the Rights of Persons with Disabilities (CPD), see supra note 60 for the status of human rights treaty ratifications. Republic Act No. 9372 (Human Security Act) of 2007. ‘Manila Court Rules Anti-Terror Law Constitutional’, Associated Press, 11 October 2010. Joaquin L Gonzalez III, ‘Philippines: Counting People Power’, in Funston (ed.), supra note 19, 252 at 252–4.

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outset due to a lack of true representative government’, despite the regular holding of elections for new leadership.112 Tired of being hamstrung by legislative infighting and constitutionally prevented from serving a second term, Ferdinand Marcos declared martial law in 1972, replacing the elected legislature and Constitution while promoting his own allies within the government.113 His sixteenyear dictatorship saw the silencing of the media and labour unions, and all opposition was heavily penalised. Brutal security forces imprisoned many without charge, while torture and extra-judicial killings abounded.114 Oppressed by the Marcos regime, public resentment grew to such proportions that when he refused to acknowledge Corazon Aquino’s electoral victory in 1986, Aquino led the peaceful ‘People Power’ revolution which manifested in a major uprising that included ordinary citizens, civil society, opposition members, the Church, and the military. Overwhelmed by the public opposition, Marcos fled to Hawaii.115 The return of democracy was fraught with difficulty as Aquino battled seven coup attempts within her six-year term. However, she achieved some goals like instituting the ‘human-rights centred’ Constitution of 1987, re-established the elected Congress, and transferred power to her successor Fidel Ramos in the 1992 elections.116 Ramos was more successful in bringing about political and economic reform but his work was stymied by the Asian financial crisis of 1997.117 Moreover, his policies of strengthening the Philippine democracy through economic development were derailed by the election of Joseph Estrada in 1998. Soon, Estrada’s corrupt and nepotistic practices exposed his professed ‘pro-poor’ agenda. He was impeached for corruption in November 2000 but Senate support prevented his removal from office. Ultimately, the second People Power revolution occurred and the then vice-president, Gloria Macapagal Arroyo, succeeded him in January 2001. She was re-elected as president in the 2004 elections based on her economic and political background and her image of being able to promote stability and development.118 Nonetheless, her presidency has also been dogged by allegations of electoral fraud and survived an 112

113 116 118

Clifton Sherrill, ‘Promoting Democracy: Results of Democratization Efforts in the Philippines’, 32(4) Asian Affairs: An American Review (2006) 211, at 216. 114 115 Ibid., at 216. Ibid., at 217. Gonzalez, supra note 111, at 254–5. 117 Sherrill, supra note 112, at 217. Ibid. Mely Caballero-Anthony, ‘Elections and the Long Road to Democracy in the Philippines’, in Simon S. C. Tay and Yeo Lay Hwee (eds.), Elections in Asia: Making Democracy Work (Singapore: Marshall Cavendish, 2006), 93.

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unsuccessful impeachment bid.119 While she promptly dispersed the September 2005 demonstrations against her failed impeachment, trouble erupted again the next year when there was an alleged coup by the opposition, communists, and some elements of the military. Her declaration of a state of emergency to quell the unrest was met with much protest from domestic and international human rights activists.120 In June 2010, Arroyo was succeeded by Benigno Aquino, who promised effective action to improve the domestic human rights situation. This, however, has not yet been realised.121 During the Aquino and Ramos administrations, the civil society movement flourished as human rights were restored and its contribution to the 1986 ‘People Power’ revolution recognised. It was really during the Marcos era that civil society arose by mobilising and centralising national opposition to the dictatorship through networks of grassroots organisations. The grassroots support for civil society was strong as ‘the pressure politics of . . . human rights NGOs proved a more effective guarantor of justice under the Marcos regime than the subordinated judiciary’.122 In such an environment, civil society groups like academic think tanks, trade unions, women’s institutes, and developmental groups rapidly evolved to give the ordinary Filipino a voice through the strength of sheer numbers.123 Accorded especial recognition in the 1987 Constitution, the power of civil society was further entrenched when the 1991 Local Government Code stipulated NGO participation in local politics.124 NGO leaders also took seats in the cabinet and Presidential committees, and ‘NGO Liaison Desks’ were set up in the Aquino government.125 The Ramos government continued this practice by including NGOs in his Philippines 2000 strategy of making the state a ‘newly industrialising country’ (NIC) by 2000.126 Arroyo had continued to encourage civil society partnerships and had prioritised the economic and security agenda for the Philippines during her term. A mainstay of the Philippine civil society voice remains the Catholic Church through the Catholic Bishops Conference of the Philippines, as well as the Philippine Center for Investigative Journalism and the Trade Union Congress of the Philippines.127 119 120 121

122

123 126

Ibid., at 102. ‘Emergency Declared in the Philippines’, BBC News, 26 February 2006. Human Rights Watch, ‘Philippines: 100 Days On, Aquino’s Actions Fall Short’, Press Release, 6 October 2010. Gerard Clarke, Economic and Political Reform in the Philippines, 1986–96: The Evolving Role of Human Rights NGOs, in Kleinberg and Clark (eds.), supra note 37, 44 at 49. 124 125 Sherrill, supra note 112, at 224. Gonzalez, supra note 111, at 278. Ibid. 127 Ibid., at 278; Clarke, supra note 122, at 54–5 and 57. Gonzalez, ibid., at 279.

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Besides the progress of the civil society movement, how have the protection and promotion of human rights fared? In terms of de jure protection, the Philippines is not lacking. In fact, it is an enthusiastic signatory of international human rights law, being the only one of the ten ASEAN states to have ratified all nine major UN human rights treaties, even the ICCPR and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) – which most Southeast Asian states have been loathe to sign – and most of the protocols.128 Moreover, the ratification of such treaties took place regardless of which type of political system – whether Marcos’ dictatorship or the subsequent democracies – was operating at the time. To strengthen the effect of such international obligations of the civil, political, social, economic and cultural, and for protecting special groups such as women, children, and labourers, similar provisions are enshrined in Article 3 of the 1987 Constitution which spells out the terms of the Philippine Bill of Rights.129 In this bill, civil and political protections similar to the international norms are provided – no arbitrary deprivation of life, liberty, and property;130 freedoms of speech, expression, media, association and assembly,131 and due process rights.132 More significantly, however, was the establishment of the Commission on Human Rights of the Philippines (CHRP).133 It is mandated to investigate all rights abuses, provide legal measures for the rights and legal protections for the poor, carry out a programme of research, education, and information for the public, recommend to Congress effective policies for rights protections, and monitor Philippines’ adherence to its international obligations.134 The fact that the state has formally allowed this body such powers of scrutiny appears to bolster the Philippine government’s will to firmly uphold human rights. Social justice and human rights are further articulated in Articles 2 and 13, the latter of which provides that the government will try to ‘reduce social, economic, and political inequalities . . . by diffusing wealth and political power for the common good’,135 and ‘social justice shall include the commitment to create economic opportunities’.136 Attention is also paid to urban land reform and housing such that the state will ‘make available at affordable cost decent housing and basic services to 128 129 131 134

UN list for the status of ratification of human rights treaties, supra note 60. 130 1987 Constitution of the Republic of the Philippines, art. 3. Ibid., art. 3(1). 132 133 Ibid., arts. 3(4) and (8). Ibid., art. 3(12). Ibid., art. 3(17). 135 136 Ibid., art. 3(18). Ibid., art. 13(1). Ibid., art. 13(2).

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the underprivileged and homeless’.137 Over and above these protections, the Constitution also provides that the state ‘adopts the generally accepted principles of international law as part of the law of the land’ such that treaties have direct domestic effect without the need for transformation into municipal law.138 As a result, human rights treaties have been utilised by the courts to grant judicial relief.139 Nonetheless, de facto human rights standards do not quite compare. An issue which has caused significant public anger is the continuing brutality of its security forces, despite the CHRP having implemented the Human Rights Education Program for the Police, Military and other Law Enforcers since 1989.140 There has been the indiscriminate killing of civilians and terrorist suspects by the military in the attempt to quell the domestic insurgency caused by the Moro Islamic Liberation Front (MILF) and the communist New People’s Army in Southern Philippines. The HRW Report, ‘Scared Silent: Impunity for Extra-Judicial Killings in the Philippines’, condemned the security forces for carrying out extrajudicial killings and torture, and arbitrary arrests and detention against political activists, human rights defenders, and journalists.141 Despite purported media freedom, ten journalists were murdered in 2005 – eight were work-related for uncovering corruption. For instance, in May 2005, a news editor was suspected to have been murdered for criticising the Dingalan mayor’s use of municipal funds, while a funeral wreath was sent to a news magazine editor as a threat in August for alleging the military participated in election fraud.142 In addition, the judicial system was noted to be corrupt and inefficient, where many human rights cases were not given a fair hearing and the wealthy could pay to escape justice. This had inevitably led to widespread contempt and mistrust of the judicial process among the citizens.143 137 139

140

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138 Ibid., art. 13(9). Ibid., art. 2(2). Raul C. Pangalangan, ‘The Philippines: The Persistence of Rights Discourse vis-a`-vis Substantive Social Claims, in Peerenboom, Petersen, and Chen (eds.), supra note 101, 346 at 347. Philippine Commission on Human Rights, Education and Research Office at www.chr. gov.ph/MAIN%20PAGES/services/hr_promo1_ero.htm. Human Rights Watch, Scared Silent: Impunity for Extra-Judicial Killings in the Philippines, June 2007 at http://hrw.org/reports/2007/philippines0607/philippines0607web. pdf. US State Department, Bureau of Democracy, Human Rights and Labor, 2005 Human Rights Report: Philippines, at www.state.gov/g/drl/rls/hrrpt/2005/61624.htm. Ibid.

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Raging criticism both domestic and international led President Arroyo to establish the Independent Commission to Address Media and Activist Killings (the ‘Melo Commission’) in August 2006 to investigate the extra-judicial killings and its report was concluded in January 2007.144 However, the Philippines remains continually exhorted to ensure justice is served to the perpetrators. In February 2007, Philip Alston, the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, also submitted a report after a ten-day investigative visit to the Philippines, urging for more specialist expertise and a better witness-protection programme, as well as addressing the problems rooted in the general mindset and operations of the security forces.145 Moreover, the European Union also sent a delegation to the Philippines in June 2007 to offer technical assistance to curb human rights abuses.146 Now that the Philippine Supreme Court has declared that the anti-terror Republic Act No. 9372 is not unconstitutional, there is greater public fear of heightened human rights violations, especially if used with the intention to quell the decades-long communist and Islamist insurgencies.147 Meanwhile, socio-economic rights remain dire as the country struggles with widespread poverty and a foreign debt of US$55.4 billion.148 The 7.3 per cent unemployment and 19.7 per cent underemployment rates continue to be among the highest in Asia.149 Overall, the Arroyo administration’s promise to reform the taxation system and institute constitutional changes remained largely unfulfilled. Despite international treaties having direct force within the domestic system, the CEDAW Committee stressed that despite CEDAW being in force in the Philippines for twenty-five years, discriminatory provisions within national legislation had not yet been satisfactorily addressed, and 144 145

146

147 148

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Melo Commission Report at www.pinoyhr.net/reports/meloreport.pdf. Preliminary Note on the Visit of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, to the Philippines, 12–21 February 2007, UN Doc. A/HRC/4/20/Add.3 (22 March 2007), at www.extrajudicialexecutions.org/reports/ A_HRC_4_20_Add_3.pdf. This was reiterated in Compilation Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(B) of the Annex to Human Right Council Resolution 5/1, Report for the Philippines’ Universal Periodic Review, UN Doc. A/HRC/WG.6/1/PHL/2 (31 March 2008). ‘EU Team in Philippines to Help Curb Human Rights Abuses’, Agence France Press, 22 June 2007. Supra note 109. Central Bank of the Philippines, ‘External Debt Increases; Debt Ratios Remain Prudent in First Quarter of 2010’, Media Release, 29 June 2010. The Philippines Labor Force Survey (as of January 2010), at www.nscb.gov.ph/secstat/ d_labor.asp.

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women and children remained in danger of being exploited as sex workers or being trafficked abroad.150 This problem was also highlighted by the US State Department which noted that the 2004 Anti-Violence against Women and their Children Act, which criminalised physical, sexual, and psychological abuse to women and their children committed by their partners, needed to be utilised more effectively.151 Regarding children, the CRC Committee has commended the Philippines for taking action to protect children through several laws, most notably the 2003 Anti-Trafficking in Persons Act, the 2003 amendment of the Special Protection of Children against Child Abuse, Exploitation and Discrimination Act, which eliminated the worst forms of child labour and increased protections of the working child, and the 2004 Anti Violence against Women and their Children Act.152 Yet, the Committee was concerned about the discrimination children faced in accessing social, health, and education services, especially the poor, disabled, those belonging to minority, indigenous, and Muslim communities, and children living in conflict areas. It also cited the poor housing situation in which families lived in urban slums and squatter communities without proper sanitation and facilities.153 It may appear that the state institutions are not serious in eliminating human rights abuses. However, while that may be partly true, it is more probable that the problems at hand are too much for the state to handle, even with NGO assistance. Through the years of authoritarianism up to the early 1990s, civil society groups tended to concentrate on civil and political rights but thereafter their involvement in socio-economic rights expanded exponentially from the 1990s onwards, representing agricultural interests and the urban poor.154 In addition, despite the negative reputation of the Philippine judiciary, the courts have at times interpreted the law liberally. As seen earlier, treaties have the force of a legislative act and the courts have utilised human rights treaties to uphold social justice. In a particular instance, the court invoked the right to health to ‘uphold the Generic Drugs Law’ so that the public would have access to affordable medicines.155 150

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153 155

Concluding Comments of the Committee on the Elimination of Discrimination against Women: Philippines, 25 August 2006, UN Doc. CEDAW/C/PHI/CO/6, paras.11 and 16. 2005 US State Department Report on the Philippines, supra note 142. See also, Republic Act No. 6675 (Generic Drugs Act), 25 July 1988. Concluding Observations of the Committee on the Rights of the Child (CRC): Philippines, UN Doc. CRC/C/15/Add.258 (2005), para.3. 154 Ibid., paras. 75–82. Clarke, supra note 122, at 56–9. Pangalangan, supra note 139, at 357.

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As to the work of the CHRP, a scan of its activities listed on its website shows that there is no doubt that they are addressing many issues. However it is difficult to assess how effective it really is in rectifying the rights abuses in the Philippines, especially in relation to encouraging state reform as there is little analysis of its work – a similar scenario shared with the other human rights commissions in Indonesia, Malaysia, and Thailand. One thing is for certain, nonetheless, given the overwhelming volume of work and scant resources – there will always be many groups of people who will be dissatisfied. Moreover, its status as the ‘middle body’ linking the state and civil society would doubtlessly raise governmental suspicions as to any perceived partiality towards civil society. The civil society and domestic population, on the other hand, would question the CHRP’s autonomy, mandate, and will to address human rights violations.156 This is exemplified by the recent appeal by an NGO, the Philippine Alliance of Human Rights Advocates (PAHRA). PAHRA’s chairman, Max M. de Mesa, demanded that Purificacion V. Quisumbing, chairwoman of the CHRP, resign as she failed ‘to expose the country’s human rights record’. In her congratulatory speech after the Philippines won a seat in the Economic and Social Council (ECOSOC), she had implied that the CHRP had not had similar negative reports of human rights abuses amid objective evidence to the contrary of the ‘existing coercive environment and the culture of impunity’ and rampant extra-judicial killings.157 However, to be fair, the CHRP has indeed developed sophisticated links with Philippine civil society and government, having established more specific rights protection centres like the Child Rights Center, Women’s Rights Program Center, and the Asia-Pacific Institute of Human Rights. It has also tried to extend its influence right down to the grassroots through subsidiary bodies.158 However, due to lack of resources, 14,000 villages out of 40,000 have these village-level Human Rights Action Centers.159 However, it is quite certain that hamstrung by endemic corruption and elite dominance, the state can 156

157

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A more detailed analysis of the difficulties national human rights commissions face will be covered in Chapter 5. Philippine Alliance of Human Rights Advocates (PAHRA), Open Letter to the Chairperson of the Commission on Human Rights of the Philippines, 21 November 2006, at www. ahrchk.net/statements/mainfile.php/2006statements/827. See a list of CHRP initiatives at www.chr.gov.ph/MAIN%20PAGES/services/progs_ services.htm. Maznah Mohamad, ‘Towards a Human Rights Regime in Southeast Asia: Charting the Course of State Commitment’, 24(2) Contemporary Southeast Asia (2002) 230, at 242.

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do little to improve the rights situation even if the CHRP continues to press for changes. Overall, it would seem that the Philippine enthusiasm for human rights is somewhat incongruous with its substantive record. Besides addressing the obvious human rights issues, more fundamental problems of the Philippine governance system must be confronted. At the outset, corruption needs to be dealt with before the government can rule effectively for the good of the people, for no matter how strong the legal rights protections are or how active the government is in implementing rights policies, corruption is crippling the state and perpetuating the vicious cycle of poverty, unemployment, and rights violations. Human rights education for the security forces is also urgent given the poor longstanding record and the recent call for intensified action against the insurgents. Adding to the general sense of political instability and affecting the enjoyment of the other rights is the impeded exercise of the right of political participation. Despite the long history of elections, there has not been a real maturation of the democratic process thus internal selfdetermination remains elusive. The elections continue to resemble a popularity contest in which the electorate favours popular figures rather than candidates with solid credentials and a platform for change. Governance in the Philippines is also often sidetracked by the threat of unconstitutional means of displacing leaders through public protests calling for the president’s resignation or through attempted coups. While this could be seen as the exercise of political voice, they are not in line with agreed democratic practices and certainly cannot apply in every circumstance where the people are displeased.160 For instance, although the uprising against the Marcos dictatorship was legitimate, the protests against Estrada and the attempts in 2005 to remove the incumbent Arroyo over electoral fraud were more dubious as both had come into power through democratic means. It is certain that the Philippine government supports human rightsrelated issues both domestically and regionally, and that the civil society in the country remains a formidable force in rights advancement. However, for lasting improvements to be seen in the Philippines, even with the establishment of a regional system, not only must the government strengthen its policies to reduce rights violations, but the people themselves must also do their part for ‘without a well-informed and participating citizenry, a strong and functional democracy will remain elusive’.161 160

Caballero-Anthony, supra note 118, at 93–4.

161

Sherrill, supra note 112, at 225.

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Thailand Turning to Thailand, it must be acknowledged at the outset that the kingdom sits in a most precarious position as to its support for the AICHR. Ordinarily, Thailand would have been indubitably a firm third, behind Indonesia and the Philippines in terms of openness to human rights, democracy, and the establishment of an ASEAN human rights body, but for the 19 September 2006 coup in which the then prime minister, Thaksin Shinawatra, was ousted by General Sonthi Boonyaratglin who subsequently installed General Surayud Chulanont as interim prime minister.162 Thailand’s experimentation with democracy has seldom had the chance to mature. It has been tumultuous ever since 1932 when Phibun Songkram and Pridi Panomyong led a coup which overthrew the absolute monarchy.163 Since then, Thailand has had a rapid succession of autocratic leaders through many coups. It has been observed that the national idea of attaining ‘Thai-style democracy’ is through a series of coups, counter-coups, strong leaders, elections, and yet more unstable governments.164 Yet through all this, the sporadic attempts at democracy during the past decades have increased the Thais’ awareness of rights and growth of civil society. Not only was the civil society vibrant and the media free, but they often expressed the importance of democratic ideals and valued rights. Though Thaksin’s term in office had undermined this freedom somewhat with his silencing of the media and hard-handed policies in quelling unrest, the people volubly opposed this and were not averse to civil disobedience.165 Thus, while one would be hard-pressed to say that Thai democracy is on-track and transiting towards something more permanent, Thailand nevertheless still possesses a strong domestic support for human rights and democracy as the public opposition to the ruling junta clearly illustrates. The media, intellectuals, academics, business community, and other sectors of society have come out to deplore the coup, despite the initial euphoria after Thaksin’s ouster. Even the poor and rural, who 162

163 164

165

For a detailed analysis on the current difficulties in Thailand, see John Funston (ed.), Divided over Thaksin: Thailand’s Coup and Problematic Transition (Singapore: Institute of Southeast Asian Studies, 2009). John Funston, ‘Thailand: Reform Politics’, in Funston (ed.), supra note 19, 328 at 329. Nirmal Ghosh, ‘What’s Next for Thailand?’, Straits Times Regional Forum, 30 March 2007. See also, Funston (ed.), supra note 162. Human Rights Watch, Overview of Thailand 2005, at http://hrw.org/english/docs/2006/ 01/18/thaila12251.htm.

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have been Thaksin’s stalwart supporters, are outraged at the disrespect shown to their democratic vote. Moreover, as details of the new constitution were drafted, democracy and rights are priorities, so much so that General Prasong Soonsiri’s (chairman of the Constitution Drafting Committee) ill-timed comment about permitting a clause for an unelected prime minister had Thailand up in arms.166 Nonetheless, however strong the civil society may be, deep national rifts in Thailand over political differences persist.167 It is likely that Thailand will need to concentrate on reconciling its fragmented society before tending to regional affairs. Even if it has been giving political support to AICHR’s establishment, it may not be ready to commit its will and resources towards that end when the conflict in its Muslim-populated southern region is escalating.168 Unlike the other Southeast Asian states, however, Thailand was never colonised. The national consciousness for rights and democracy arose largely through the political experimentation in Thai society in the twentieth century. After the 1932 coup, Pridi’s aspirations of a civilian democracy in Thailand were continually subordinated to Phibun’s ambitions. Finally, in 1938, Phibun established his government and embarked on a policy of nationalism and supported Japan through its military campaign in the Far East during the Second World War.169 This period was followed by chaotic democracy between 1944–7 when pro-Pridi civilian governments attempted to rule Thailand.170 Phibun was reinstated in office in April 1948 after the November 1947 coup and authoritarian rule again followed for almost a decade until Sarit Thanarat ousted Phibun in another coup in September 1957. Sarit ruled absolutely till his death in December 1963.171 Democracy was further limited by the next prime minister, Thanom Kittikatchorn, who although permitted elections to be held in November 1969, did away with the parliament in 1971 when the legislators’ dissent hindered his plans.172 The subsequent years saw the rise of the culture of public dissent as the people demanded that political society be liberated. Intensely repressed by the lack of democratic voice, the student uprising in 166 167 168

169 171

172

‘Why the Thais are “Losing Their Smile”’, SEAPSNet, 12 March 2006. See Funston (ed.), supra note 162. See e.g., Kyle Knight, ‘Caught in the Middle: Attacks on Education in South Thailand’, Human Rights Watch, Media Release, 29 September 2010. 170 Funston, supra note 163, at 329. Ibid., at 331. Michael Connors, Democracy and National Identity in Thailand (New York; London: RoutledgeCurzon, 2003), at 48. Funston, supra note 163, at 331.

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October 1973 ushered in another three years of unstable democracy under the quick succession of premiers Sanya Thammasak, Kukrit Pramoj, and Seni Pramoj. More uprisings occurred when civil society comprising student groups, rural associations, and trade unions revolted in 1976, and General Kriangsak Chomanan seized the opportunity to stage a coup to install Thanin Kraivichien as prime minister after the massacre at Thammasat University in October 1976. Thanin ruled with an iron-fist and clamped down on civil liberties by threatening the media and banning political and student activities.173 Ironically, his draconian rule led Kriangsak to oust him in the October 1977 coup and the latter ruled from 1977–80. Kriangsak’s successor Prem Tinsulanond then ruled from 1980–8. What was notable about Kriangsak’s and Prem’s leadership was that they instituted ‘semi-democracy’ in which traditional strongholds of power – the bureaucracy and military – accommodated the rising power of the external capitalist class. This emergent practice heralded novel structures of ‘crony capitalism’ where politics and business were intertwined.174 After Prem’s rule, the 1988 elections in which Chatichai Choonhavan was elected prime minister was regarded a triumph for democracy. However, euphoria was short-lived as Chatichai was replaced by Anand Panyarachun in a 1991 coup. Soon after, the military’s attempt to install General Suchinda Krapayoon after the 1992 elections led to the bloody Black May public protests. The King intervened and Anand returned to premiership until Chuan Leekpai and his Democrat Party led the coalition government. After Chuan lost office due to a land scandal, the 1995 and 1996 elections produced yet more ineffective coalitions headed by Banharn Silpa-archa and Chavalit Yongchaiyudh.175 Meanwhile, as the corruption that arose in the 1980s when the capitalists bought their way into power by working the grassroots did not subside in Thai politics, ‘bourgeois intellectuals’ began their work of removing from ‘the political field . . . the direct forces of the market’.176 Evolving into stronger and more sophisticated movements in the 1990s, these civil society activists began to take action to democratise the political system for lasting civilian rule. Unsurprisingly, civil society was a formidable opponent to the entrenched powers. During the height of public anger over the political mess and Asian financial crisis in September 1997, the besieged parliament had little choice but to approve 173 175

Connors, supra note 171, at 91. Funston, supra note 163, at 333.

174 176

Ibid., at 95. Connors, supra note 171, at 118.

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the new constitution that civil society leaders had drafted.177 When Chuan returned to power in November 1997, his government concerned itself with building the domestic political-legal framework according to constitutional stipulations, including the electoral system, the courts, and the national human rights commission.178 This was the newly democratic framework that Thaksin inherited when his Thai Rak Thai party won the January 2001 elections. Despite allegations of corruption, authoritarian rule, clamping down on civil liberties, human rights violations in tackling the drug cartels in the South, and the rising dissatisfaction of the elites and middle-classes to Thaksin’s administration in his first term, Thaksin rode on to an overwhelming triumph at the February 2005 elections. His party’s strength lay in its proposed agenda of economic and social reform of helping the poor and rural dwellers, debt waivers, agriculture, and healthcare, as well as boosting small and medium enterprises.179 His second electoral victory was heralded as the success and stabilisation of the political process in Thailand – tangible proof that democratic transition was finally taking place.180 Yet this was not to last as the anger of the elite and middle-class Bangkokians boiled over after the Shin Corp sale to Singapore’s Temasek Holdings. Thaksin made huge tax-free profits from this sale by exploiting legal loopholes.181 The potential fallout of Thai society compelled him to call for snap elections but these were boycotted by major political parties and a huge number of null votes were returned. Despite winning the polls, Thaksin did not assume premiership due to public protest. International observers castigated that democratic integrity had been passed over to ‘mob rule’ and the wishes of the elite minority. Indeed, notwithstanding the dubious legitimacy of the elections, it would seem from a certain perspective that ‘the ‘voice of the people’ proves to be quite different from the ‘voices of opposition’ to Thaksin’.182 Yet, the Thai King had other views, saying that it was not a 177 178

179 180

181 182

Funston, supra note 163, at 333. Connors, supra note 171, at 172. For critiques on the 1997 Thai constitution, see Frank Munger, ‘Constitutional Reform, Legal Consciousness, and Citizen Participation in Thailand’, 40 Cornell International Law Journal (2007) 455; Erik Martinez Kuhonta, ‘The Paradox of Thailand’s 1997 “People’s Constitution”’, 48(3) Asian Survey (2008) 373. Ibid., at 172–3. Robert B. Albritton, ‘Thailand in 2005: The struggle for Democratic Consolidation’, 46(1) Asian Survey (2006) 140, at 140. ‘Flip-Flop at the Helm of Thai Politics’, SEAPSNet, 28 June 2007. Albritton, supra note 180, at 142.

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democratic election as the major parties had not competed.183 As the elections were annulled, Thaksin assumed the role of a caretaker leader. While in the process of preparing for the next elections, he was ousted from office when attending the UN General Assembly in New York. The junta formed themselves into the Council of National Security (CNS) and installed Surayud Chulanont as interim prime minister. Since then, Thailand has seen more upheaval, and Abhisit Vejjajiva of the Democrat Party assumed leadership when the Thai Constitutional Court ruled in December 2009 that the Thaksin-linked People’s Power Party carried out electoral fraud and dissolved it.184 Thailand also set in place a new Constitution in 2007 to combat any future conflicts of interests in the executive;185 the Constitution also empowers the Thai Human Rights Commission to submit cases to the national courts.186 On the whole, the domestic upheaval in Thailand has also seen the strength of the judiciary, especially on constitutional issues.187 What can we observe of human rights amid the political upheavals and different administrations in Thailand? Most obviously, civil society is a hugely influential part of Thai political culture. It has been a prime instigator of democratic reform since the 1970s, bringing to the forefront the desire of a liberal democracy with its accoutrements of a sovereign parliament, decentralisation of power, economic and social justice, human rights, and media freedom. The print media (excluding those with partisan tendencies) have also been very active in uncovering corruption and other unlawful practices of public officials. These efforts culminated in the radical contribution of the 1997 and 2007 Constitutions which set out the fundamentals of the Thai state, and ‘direct democracy’ in which the public may propose laws or censure officials.188 To date, human rights and democracy seem to be firmly entrenched in the Thai mindset. Thailand’s regulatory framework provides for a national commission for human rights, an Election Commission to 183 184 185 186 187

188

‘Thai Court Rules Election Invalid’, BBC News, 8 May 2006. Funston, ‘Introduction’, in Funston (ed.), supra note 162. Constitution of the Kingdom of Thailand, 19 August 2007, ss. 265–9. Ibid., s. 257. Vitit Muntarbhorn, ‘Deconstructing Thailand’s (New) Eighteenth Constitution’, 12(1) Thailand Law Journal (2009), at www.thailawforum.com/articles/Thailand-EighteethConsititution.html. For an overview of the growth of civil society especially of the 1990s democratic movement, see Pasuk Phongpaichit and Chris Baker, Thailand’s Crisis (Singapore: Institute of Southeast Asian Studies; Copenhagen: Nordic Institute of Asian Studies, 2000).

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prevent electoral fraud, the National Counter Corruption Commission (NCCC), a Constitutional Court, consumer protection, and an independent public body to prevent state and military dominance of telecommunication airwaves.189 In addition, with the exception of CEDAW and CRC which were acceded in 1985 and 1992 respectively, Thailand became a signatory of most of the major UN human rights treaties after its 1997 revolution, ratifying the ICESCR, ICCPR, and CERD in 1999, 1997, and 2003 respectively.190 Nonetheless, despite the institutional checks on state abuse since the advent of Thai reform in 1997, and Chapter III of the 2007 Constitution expressly providing for a whole gamut of rights and liberties which correspond to international provisions – for instance, equality before the law, gender equality, due process, freedom of speech, expression, assembly, and association, – human rights have often been subverted by corruption and paternalistic governance.191 While Thailand’s human rights record was especially bad during the Thaksin administration, it is unsurprising that the situation has worsened under subsequent administrations, including that of incumbent premier Abhisit. Having clamped down on the media when they criticised his policies, authoritarianism, and corrupt practices, Thaksin also threatened to sue the media for dissenting opinions, and even went as far as confiscating the transmitter of a prominent community radio station. The practice of media intimidation also led to an increase of selfcensorship and external constraints on journalists.192 Sondhi Limthongkul, mogul of the Nation newspaper, and a major opponent of Thaksin, was a target of such censure. It was only after King Bhumibol Adulyadej publicly disapproved that Thaksin withdrew his lawsuits in December 2005. This was not the first instance the King had stood up for the freedom of public voice. He had in December 2001 stated that ‘people had the right to disagree and that egos must be lowered to prevent opposing opinions from being ineffectual’.193 This onerous practice of censuring all opposition was even extended to the National Human Rights Commission of Thailand (NHRC). It was established in 1999 in line with the democratic reform of that time to 189 190 191

192

193

Funston, supra note 163, at 358. UN list for the status of ratification of human rights treaties, supra note 60. A novel inclusion in this chapter is the enunciation of the duties of the Thai people which affirm the national identity rather than any onerous duty that could undermine personal rights. Constitution of the Kingdom of Thailand, supra note 185, chapter III. Human Rights Watch, ‘Thailand: PM Suits Dropped, but Media Still Under Threat’, Media Release, 8 December 2005. Connors, supra note 171, at 174–5.

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promote human rights through the rule of law, state policy, and public education initiatives. In the course of its duty, the NHRC has examined the brutal ‘war on drugs’ carried out in the southern provinces since February 2003 and expressed concern over the high death toll of hundreds of persons, as well as torture, and disappearances carried out by state forces. To all this, Thaksin had nothing but contempt for the NHRC. Publicly deriding the body in 2003, he accused the NHRC Commissioner, Pradit Chareonthaitawee, and other officials of betraying national interests by siding with drug dealers and not being concerned for the lives of Thai policemen.194 The problem of impunity has been compounded because any attempt to prosecute security forces is futile because of the need to rely upon police recommendations in determining whether a case could proceed to trial.195 A related issue to the anti-drug campaign would be the gross abuses of human rights in southern Thailand, as highlighted by the local Thai media and international observers like the International Crisis Group and Amnesty International. Over two thousand people have been killed in the insurgency to date, including increasing numbers of civilians. There has been a high-profile disappearance of a human rights lawyer, Somchai Neelaphaijit, as well as the disproportionate use of force by the military in the Krue Se mosque siege and Tak Bai demonstration.196 Additionally, school children and teachers are under threat as insurgents target schools for bombings. The situation has not alleviated despite the increasing number of troops sent to the provinces as well as security personnel to safeguard the teachers. Thousands of teachers are demanding to be transferred to other parts of Thailand.197 To all this, the international human rights treaty committees have advised Thailand to improve its human rights records. Regarding longstanding issues on women’s and children’s rights, the CEDAW and CRC Committees in their respective Concluding Observations of 1999 and 1998 exhorted that although significant effort had been made in addressing sexual exploitation of women and children in national legislation, these remained two very vulnerable groups and urged that urgent 194

195

196

197

SAHRDC, Thailand’s National Human Rights Commission, Human Rights Features, 8 May 2003. US State Department, Bureau of Democracy, Human Rights and Labor, 2005 Human Rights Report: Thailand, at www.state.gov/g/drl/rls/hrrpt/2005/61628.htm. International Crisis Group, Thailand’s Emergency Decree: No Solution, Asia Report No.105, 18 November 2005. ‘Southern Teachers Demand Transfers’, Bangkok Post, 6 July 2007.

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measures be taken to effect enforcement.198 Also, the NHRC’s engagement with the UN Human Rights Committee (UNHRC) for a joint review of Thailand’s compliance with the ICCPR was considered significant as it was the first time a national human rights commission had cooperated with the UNHRC, and was open to its suggestions of extrajudicial killings by security forces, the emergency decree, media intimidation, human trafficking, and the rights of minority groups and migrant workers such as the Burmese.199 As it stands, Thailand’s democratic reform is again attempting to rise from the ashes with the courts now muscling in on the act after the King’s exhortation for more decisive action.200 However, the human rights situation has not improved despite the constitutional reform since the pro-Thaksin (‘Red Shirts’) and pro-monarchy (‘Yellow Shirts’) factions are still unwilling to budge from their respective positions. If anything, human rights of the Thai people are likely to have worsened given that the government seems stymied. Emergency rule has been maintained over Bangkok and the nearby provinces since the April–May 2010 deadly suppression of political protests by the Red Shirts by invoking a ‘shoot-to-kill’ policy,201 causing the Thai AICHR representative, Sriprapha Petcharamesree, to condemn the violence and exhort the government to desist from forceful measures.202 AICHR, however, conspicuously did not comment on the use of force, presumably on the basis of the ASEAN way of not interfering in member states’ internal affairs. As to the southern insurgency, the death toll continues to climb with daily killings and bombings. Bilateral cooperation has also been tabled with Malaysia but despite numerous meetings and agreements to set in place long-term socio-economic development and assistance to quell the violence, nothing concrete has yet been witnessed.203

198

199

200 201

202 203

Concluding Observations of the Committee on the Elimination of Discrimination against Women: Thailand, UN Doc. A/54/38 (1999), para. 250; Concluding Observations of the Committee on the Rights of the Child: Thailand, UN Doc. CRC/C/15/Add.97 (1998), para. 30. National Human Rights Institutions Forum, ‘NHRC of Thailand Submits Assessment Report to Human Rights Committee’, Media Release, 30 July 2005. ‘A Judicial Revolution for Thai Politics’, Asia Times, 15 July 2008. Human Rights Watch, ‘Thailand: Revoke “Live Fire Zones” in Bangkok’, Media Release, 15 May 2010. ‘Human Rights Agent Calls for End to Violence’, Bangkok Post, 18 May 2010. International Crisis Group, Southern Thailand: Moving towards Political Solutions?, Asia Report No. 181, 8 December 2009.

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One thing is for certain, however, that if not for the political chaos, power struggles, and propensity for coups in the mindset of its ruling elite – to the extent of wanting to justify a ‘Thai-style democracy’ – Thailand’s civil society and intellectuals have already embraced some democratic principles which they have honed through successive attempts at instituting stable democratic rule in the kingdom. Even if the common people do not understand the complexities of democratic rule, they have expressed that their political aspirations and human rights be respected and realised and not hijacked forcefully because of political rivalries. Thus, while undoubtedly there is much to be worked on in Thailand – the ongoing police reform, democratic and constitutional changes, socio-economic developments, freedom of speech, media and association, and so on – it might be likely that once the country stabilises there will be potential for human rights to grow.204 Thailand not only won a seat on the UN Human Rights Council in 2010, its representative, Sihasak Phuangketkeow even chairs it.205 Given the immense work of national reconciliation that the future governments have to undertake, it is uncertain if Thailand – while continuing to profess support for the AICHR, will truly put words into actions and contribute to the regional effort towards human rights.

Malaysia Turning from the more explicitly supportive states for human rights, we now turn to the state which, while having expressed a desire for a regional mechanism, has also in the same breath cautioned for appropriate approaches which do not impinge on the ASEAN member states’ interests. It may be a surprise to some that Malaysia has actually taken the middle ground towards human rights and the imposition of intraregional scrutiny as it has often been described as an ‘illiberal’ democracy where a strong government has the power to use draconian laws to limit civil liberties – such as in the exercise of the Internal Security Act (ISA) 1960 and Police Act 1967 in curbing the communists in the 1960–70s, and now against suspected fundamentalist groups. The perception of a fair judiciary in Malaysia also nosedived during the trial of a former deputy prime minister, Anwar Ibrahim. 204

205

See International Crisis Group, Bridging Thailand’s Deep Divide, Asia Report No. 152, 5 July 2010. Membership of the Human Rights Council at www2.ohchr.org/english/bodies/hrcouncil/ membership.htm.

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While the record of the Malaysian police is not as dire as that of Indonesia, the Philippines, and Thailand, there have been complaints of improper execution of duties such as beatings while in custody. There was also a nationwide uproar at the end of 2005 when a videotape showing a female detainee being forced to do nude squats during police detention.206 This did not reflect well on the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police initiated in December 2003 to review the conduct of the police force.207 The move was seen as a response to reports of patterns of violations by police officers, including fatal shootings, excessive use of force, illtreatment, torture, and deaths in custody highlighted by the media and NGOs. Nonetheless, Malaysia has witnessed the growth of a vibrant and active civil society despite its strict image and the parliament has since established the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia Malaysia – SUHAKAM). However, what may be impeding the greater sense of equality and empowerment within Malaysia’s multiracial and multicultural society is the national policy of positive discrimination in favour of the indigenous Malay population – considered the ‘bumiputra’ or native ‘sons of the soil’ – over the Chinese and Indian racial groups. This has caused recurring tensions among the different races and recently arose again such that political observers like former senior treasury official and current president of Transparency International Malaysia, Ramon Navaratnam, have talked about the breakdown of the social fabric and called for the government to better manage sensitive racial issues.208 Although a former prime minister, Abdullah Badawi, has promptly refuted these allegations, he has also encouraged the Malay community to play a bigger role in the business sector just as it has in the political one.209 On a related issue, the fierce debate over the difficulties in renouncing Islam, apostasy, and freedom of religion in 2006 and 2007 has also heightened tensions within Malaysian society.210 As in the other Southeast Asian states, the way human rights and democracy have formed in Malaysia can be attributed largely to its 206 207

208

209 210

‘Malaysia Police Warned on Abuse’, BBC News, 2 March 2006. Suaram and Amnesty International Malaysia, Report Card on the Implementation of the Royal Commission’s Recommendations after 2 Years, 15 June 2007. ‘Race, Religion and a “Rough” Time – Malaysia’s Domestic Woes’, SEAPSNet, 1 February 2007. ‘Strive to Improve, PM Tells Entrepreneurs’, New Straits Times, 30 June 2007. ‘Religious Tensions in Malaysia: One Faith More Equal than the Rest?’, SEAPSNet, 11 May 2007.

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colonial history and subsequent political development. During British rule, the racial group one belonged to would determine the type of occupation one was permitted to take up. Clearly delineated, the Chinese and Indian immigrants went into the tin and rubber industries the British were developing in Malaya. To maintain peace in the multiracial colony as well as out of ‘respect’ for the native Malays, the British granted the latter group special privileges in land ownership and education. They also permitted the Malays to continue their traditional means of livelihood in the land and sea. Additionally, Malays were also permitted to join the public administration as low to mid-levels officials.211 Consciously or not, the British fostered a political Malay identity through these policies. This was asserted through the establishment of the United Malays Nationalist Organisation (UMNO) shortly after the Second World War in 1946 against British suggestions of forming a Malayan Union in which all racial groups would be equal and citizenship rights given to everybody.212 In the face of strident Malay nationalism in Malaya’s independence movement, the British were compelled to promptly withdraw their proposal.213 However, as the immigrant communities that had settled in Malaysia also wished for self-autonomy, a political alliance (the Alliance) was formed to include UMNO, the Malayan Chinese Association (MCA), and the Malayan Indian Congress (MIC).214 Working together helped secure an overwhelming victory of fifty-one out of fifty-two parliamentary seats for local autonomy in the 1955 elections. This subsequently enabled the Alliance to achieve ‘Merdeka’ (independence) as the Federation of Malaya with a new constitution and Tunku Abdul Rahman as prime minister on 31 August 1957.215 However, the euphoria of gaining self-rule was short-lived as postindependence racial tensions ran high. The Malays felt their native prerogative was undermined by the constant calls for equality by the other racial groups. This was exacerbated by Singapore’s leaders’ intense campaign for racial equality. At this juncture, Singapore was

211

212

John Funston, ‘Malaysia: Developmental State Challenged’, in Funston (ed.), supra note 19, 160 at 161; Judith Nagata, ‘Elusive Democracy: Appropriation of “Rights” Ideologies in Malaysian Ethnic and Religious Political Discourse’, in Susan J. Henders (ed.), supra note 22, 225 at 229; and Francis Loh Kok Wah, ‘State-Societal Relations in a Rapidly Growing Economy: The Case of Malaysia, 1970–97’, in Kleinberg and Clark (eds.), supra note 37, at 67. 213 214 215 Funston, ibid., at 161. Ibid. Ibid., at 163. Ibid.

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still a part of the Federation of Malaya. With its substantial Chinese and Indian immigrant population, racial equality was thus essential to maintain a fair and stable society. Tensions did not abate even after Singapore’s departure from the Federation in 1965. Support for the Alliance plummeted in the 1969 elections as opposition groups made unexpected gains. Racial riots soon followed, causing emergency rule to be promptly imposed.216 On the basis of national stability, the Tunku Abdul Rahman administration then took the opportunity to ramp up the Malay position through the New Economic Policy (NEP).217 Although Malay precedence had been entrenched in the 1957 Constitution with Article 153 stipulating how the ‘special position’ of Malays would be protected through the sultan’s discretionary powers, it soon became ‘the keystone of Malay claims to special rights and dominance, stretching its original legal intent and undermining ethnic harmony’.218 Positive discriminatory policies such as educational and business opportunities and scholarships, as well as a fast-track to high-ranking positions in the public and private sectors, were initiated in a bid to equalise socio-economic differences between the Malay and non-Malay communities.219 Unsurprisingly, UMNO popularity revived and Tun Razak Dato Hussein Tun Hussein Onn enjoyed relatively peaceful offices. However, two major incidents involving political infighting, exacerbated by economic recession occurred during Dato’ Seri Dr. Mahathir Mohamed’s term in office (1981–2003) in which civil liberties and the judiciary’s powers were severely restricted. In the first situation, Mahathir was involved in deep factional disputes over the top positions of power within UMNO in the mid-1980s. At the same time rising tensions between the ethnic groups due to the preferential economic, social, and educational policies for the Malay community were exacerbated by the recession Malaysia was experiencing.220 As public protests flared up and racial problems reached burning point, Mahathir unleashed the ISA to quell social unrest. In Operasi Lalang (Operation Weeding), carried out in 1987, about 120 people, including opposition politicians 216 218

219 220

217 Eldridge, supra note 26, at 92. Nagata, supra note 211, at 231. Ibid., at 230. See also Constitution of Malaysia 1963 (as amended), art. 153. (Originally termed the Constitution of the Federation of Malaya 1957.) Nagata, supra note 211, at 231; Funston, supra note 211, at 163. Graham H. Brown, ‘Balancing the Risks of Corrective Surgery: The Political Economy of Horizontal Inequalities and the End of the New Economic Policy in Malaysia’, CRISE (April 2005), at 12–15.

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from the Democratic Action Party (DAP) and Parti Islam SeMalaysia (PAS – Pan-Malaysian Islamic Party) were arrested.221 Further dissent was crushed when Mahathir began attacking the judiciary in 1988 for ruling against the government’s favour in politically sensitive cases. This climaxed in a sham trial in which Lord President Tun Salleh Abas and five other Supreme Court judges were removed from office on allegations of abusing the judicial process.222 That same year, the government moved to strengthen the executive by decimating the powers of judicial review through a series of legal amendments to the constitution and the ISA.223 Tun Salleh Abas later opined ‘that the constitution had been changed too often to strengthen an already strong executive’.224 A decade later, during the Asian financial crisis of 1997, conflicting strategies for salvaging the battered Malaysian economy caused a rift between Mahathir and his deputy, Anwar Ibrahim. Relations between the two soured and Anwar was removed from office in September 1998, was arrested under the ISA and charged with corruption and sexual misconduct.225 In the subsequent furore, many of Anwar’s supporters were also held under the ISA or arrested under the Police Act or Penal Code on the basis of illegal political gatherings. Ultimately, Anwar was convicted of conspiracy, corruption, and sodomy. Anwar’s trial was condemned as a miscarriage of justice and in the eyes of many Malaysians as well as the international community the Malaysian courts had lost their integrity and independence.226 Malaysian UN special rapporteur for the independence of judges and lawyers, Param Cumaraswamy, commented that the trial ‘had not brought any credibility to the [Malaysian] government’.227 Four international legal commissions, including the International Bar Association, saw fit to send a joint mission led by Lord Abernethy of the Supreme Court of Scotland to investigate the 221

222

223

224

225 226

Human Rights Watch, ‘In the Name of Security: Counter-Terrorism and Human Rights Abuses under Malaysia’s Internal Security Act’, HRW Report Vol. 16(7)(C), May 2004, at 9. Andrew J. Harding, ‘The 1988 Constitutional Crisis in Malaysia’, 39(1) International and Comparative Law Quarterly (1990) 57; and K. S. Nathan, ‘Malaysia in 1988: The Politics of Survival’, 29(2) Asian Survey (1989) 129. H. P. Lee, ‘Human Rights in Malaysia’, in Peerenboom, Petersen and Chen (eds.), supra note 101, 191 at 205 and 209. Kua Kia Soong, The Malaysian Civil Rights Movement (Kuala Lumpur, Malaysia: Strategic Information Research Development, 2005), at 19. Funston, supra note 211, at 164; and Eldridge, supra note 26, at 109. 227 Eldridge, ibid., at 109–11. ‘Anwar Arrives for Verdict’, BBC News, 13 April 1999.

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alleged judicial abuses, publishing their concerns in the report, ‘Justice in Jeopardy: Malaysia 2000’.228 In 2003, Abdullah Badawi succeeded Mahathir as prime minister and won convincingly in the 2004 elections with his platform addressing Malaysian concerns of anti-corruption, moderate Islam (Islam Hadhari) amid national fears of Islamic fundamentalism, boosting the rural poor and agricultural sector, and the promise to strengthen state institutions like the police and public health.229 Anwar Ibrahim was also released when the Federal Court overruled the sodomy charges in 2004, leading to some restoration of the court’s reputation. However, the Malaysian courts have not been completely vindicated. Almost two decades after his dismissal, Salleh Abas spoke out, adding his voice to the growing public insistence for an investigation of the 1988 injustice.230 However, the Malaysian government rejected this. A minister in the prime minister’s department, Datuk Seri Nazri Aziz, explained that he was ‘not convinced that there [was] a need to review the 1988 judiciary crisis’ as Malaysia needed to ‘move on’, and that reopening the case would only open a floodgate.231 To date, however, no judicial reform has been undertaken – neither restoration of judicial review nor the institution of an independent appointment of judges. Given Malaysia’s political history and traditionally strong executive, what is its actual record of human rights? Like the other four states surveyed, Malaysia’s constitution protects basic rights that mirror those in the UDHR. These are, for instance, the rights of due process and nonretrospective action, equality before the law, the freedoms of expression, association and assembly, and religion.232 Derogation from the freedoms of expression, association and assembly is also permitted on the grounds of national security, public order or morality, or to ‘provide against contempt of court, defamation, or incitement to any offence’.233 Moreover, Part XI of the Constitution expressly mandates ‘special powers against subversion, organised violence, and acts and crimes prejudicial to the public and emergency powers’, while Article 150 specifically 228

229

230 231

232

International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, Commonwealth Lawyers’ Association, Union Internationale des Avocats, Justice in Jeopardy: Malaysia 2000, Report, 6 April 2000. Eric Teo Chu Cheow, ‘Elections, Trends and Issues of the New “Abdullah Malaysia”’, in Tay and Yeo (eds.), supra note 118, 42. ‘The Skeletons in Mahathir’s Cupboard’, Inter Press Service, 16 September 2006. ‘Nazri: I’m Not Convinced of the Need to Review the1988 Crisis’, The Star, 12 September 2006. 233 Constitution of Malaysia 1963 (as amended), arts. 5–13. Ibid., art. 10(2).

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endorses the King to proclaim a state of emergency if ‘grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened’.234 While the above laws do not seem anything out of the ordinary, in the hands of a strong executive like that of Malaysia, the laws potentially enable the government (and in particular the prime minister) to unilaterally declare a state of emergency and rule unopposed as there is no recourse to judicial review.235 As jurists have pointed out, the Malaysian constitution is not such a strong defender of rights as the negation of the courts’ powers of review ‘provides the keystone to a broad range of draconian measures’ at the executive’s disposal.236 The onerous nature of such constitutional provisions is buttressed by the whole slew of coercive laws, most infamous of which is the ISA. A legacy of British colonial rule to counter the communist insurgency of the 1950s and 1960s, the ISA allows persons suspected of threatening national security to be detained for up to sixty days without trial. However, detention can be prolonged indefinitely by the minister of home affairs in two-year extensions, while the judiciary has no competence to review such matters.237 The government has never shied from using the ISA, using it during periods of major social unrest like in 1969, 1987, and in the Anwar debacle in 1998.238 In post-9/11 crackdown on terrorists, the ISA is now often used against those suspected of being linked to Islamic fundamentalist groups, most notably the Jemaah Islamiyah, a militant group linked to Al-Qaeda.239 In addition, those involved in forging passports and other personal identification documents in connection with human trafficking are also held under the ISA.240 As of 2005, the Malaysian Ministry of Internal Security disclosed that there were 112 people remanded under the ISA. However, discrepancies in officially released figures as well as the high rate of extensions and undisclosed releases make it difficult to know the exact number of detainees. The lack of judicial review adds to the general obscurity of facts.241 The government continues to ignore numerous calls by local NGOs like Aliran, SUARAM, and Centre for Independent Journalism 234 236

237

238

239

235 Ibid., arts. 149–51. Funston, supra note 211, at 177. For a concise explanation of the Malaysian executive’s emergency powers, see Lee, supra note 223, at 208–9. Suara Rakyat Malaysia (Suaram), Malaysia: Human Rights Report 2005 (Malaysia: Suaram, 2005), at 25. Funston, supra note 211, at 177. (The ISA was also used against student dissidents in 1974, and again in the 1980s.) 240 241 Suaram, 2005 Report, supra note 237, at 25. Ibid., at 26. Ibid.

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Malaysia to repeal this Act. Moreover, Badawi in his reply to parliamentarian Datuk Yap Pian Hon stated that the ISA remained relevant and necessary to Malaysia, citing the examples of Singapore, Brunei, Israel, and the US in adopting similar measures. Badawi also claimed that improvements to the ISA were being studied by the Attorney-General’s Chambers for incorporation into the national police reform – the Royal Commission to Enhance the Royal Malaysian Police.242 Besides the ISA, the Malaysian government also uses the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) to detain supposed ‘underworld kingpins and dangerous criminals’, but there are strong suspicions that many detainees have committed only petty crimes. Again, there is little official disclosure and the chance to be tried before the courts.243 SUARAM states that due to the lower profile of those arrested under the EO, the police have used this legislation to arrest and detain hundreds annually, ‘many times more than the number of ISA detainees at any point in time’.244 In addition, the profusion of laws such as the Police Act 1967,245 Sedition Act 1948,246 Printing Presses and Publications Act 1984,247 Societies Act 1966,248 Universities and University Colleges Act 1971,249 and the Trade Unions Act 1959,250 likewise encroach on the freedoms of speech, expression, association, and assembly.251 For instance, the wide meaning attributed to materials of a ‘seditious tendency’ in the 1971 amendments to the Sedition Act prohibits any discussion of topics that will show contempt to the ruler or government, incite revolt and hostile feelings among races or classes.252 This effectively means the ‘four major areas’ pertaining to ‘Malay rights, citizenship rights of non-Malays, the status of national language and the Islamic religion, and the rights and privileges of the King and Sultans’.253 Moreover the tight control over the press and media fosters an atmosphere of self-censorship, especially when the government abhors to be 242

243 245 247 249 250 251

252

‘PM Says ISA Still Relevant’, Bernama, 9 July 2007. See also Malaysia’s defence of the need for the ISA in Report of the Working Group on the Universal Periodic Review: Malaysia, 5 October 2009, UN Doc. A/HRC/11/30*. 244 Suaram, 2005 Report, supra note 237, at 29. Ibid. 246 Police Act 1967 (Act 344). Sedition Act 1948 (Act 15). 248 Printing Presses and Publications Act 1984 (Act 301). Societies Act 1966 (Act 335). Universities and University Colleges Act 1971 (Act 30). Trade Unions Act 1959 (Act 262). It is beyond the ambit of this chapter to give detailed explanation of the laws and related cases. For such exposition, see Funston, supra note 211, at 177–8; Eldridge, supra note 26, at 93, 95–6; and Lee, supra note 223, at 197–209. 253 Suaram, 2005 Report, supra note 237, at 68. Eldridge, supra note 26, at 93.

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shown in any bad light. In March 2005, TV journalist Fazli Ahmad was interrogated by the police after reporting on the environmental degradation in Malaysia. The National Union of Journalists (NUJ) denounced the irony of the situation – the police would rather go after the journalist who had exposed the wrongs than the actual perpetrators.254 With the courts’ powers diluted by the executive, to what degree can human rights be said to be safeguarded in Malaysia? In 1999, the Malaysian parliament established the Human Rights Commission of Malaysia (SUHAKAM) under the Human Rights Commission of Malaysia Act.255 As in Indonesia where the Komnas HAM was established to assuage international criticism regarding Suharto’s atrocities, the government’s purpose of setting up SUHAKAM was to counter the international furore over the jailing of Anwar. Predictably, the ambit of the rights that SUHAKAM has discretion over is limited, pertaining only to those listed in the constitution – the self-same rights which the executive can derogate from on the basis of national security.256 Moreover, SUHAKAM’s powers of unilateral investigation are limited to those that are not being examined by a court, with express orders to desist from any investigation if the court so undertakes the same issue.257 In effect, the strict mandate to scrutinise domestic human rights leaves Malaysia’s international human rights obligations out of SUHAKAM’s competence. This is a severe limitation and seems at odds with SUHAKAM’s duty of advising the government on the ratification of international human rights treaties.258 To date, Malaysia has signed up to only the CEDAW and CRC and avoids signing the CERD due to its bumiputra policies.259 Moreover, unlike all the other four states which have submitted state reports to the CEDAW and CRC Committees for review, Malaysia has not done so despite acceding to both treaties in 1995. Nonetheless, SUHAKAM’s advisory function may ‘accelerate bureaucratic processes necessary to fulfilling promises made over many years.260 Although SUHAKAM has been widely touted to be another compliant state body, it has over the years executed its duties with equanimity. 254 255

256 258 259 260

Suaram, 2005 Report, supra note 237, at 70. Human Rights Commission of Malaysia Act 1999 (Act 597). For an overview of SUHAKAM, see Amanda Whiting, ‘Situating Suhakam: Human Rights Debates and Malaysia’s National Human Rights Commission’, 39 Stanford Journal of International Law (2003) 59. 257 Human Rights Commission of Malaysia Act 1999, ibid., art. 2. Ibid., art. 12. Ibid., art. 4(c). UN list for the status of ratification of human rights treaties, supra note 60. Eldridge, supra note 26, at 114.

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It has attempted to raise public awareness on human rights through public education, inquire into public complaints of rights abuses, as well as to advise the government on the necessary legislation and ratification of international human rights treaties. To fulfil these roles, SUHAKAM has sub-divisions like the human rights promotion and education working group, complaints and inquiries working group, and the economic, social, and cultural rights working group. In addition, it often releases press statements and reports on human rights abuses such as the punishment in schools (28 February 2006), the need to achieve universal primary education to raise living standards (23 February 2006), cautionary reports on abuse of the ISA to deal with illegal supply of diesel (5 May 2005), and the call for the review of human trafficking laws (27 January 2005).261 SUHAKAM has also investigated the longstanding problem of corruption and abuses within the Malaysian police force. In this respect, SUHAKAM has not shied away from its duty, so much so that the public and civil society have called for its strengthening, proving the positive effect it has had on raising human rights awareness. This improvement in public status has also been noted by the US State Department in 2006.262 However, SUHAKAM is not as effective as it should be and it constantly meets state opposition in carrying out its duties.263 To date, SUHAKAM commissioners have complained that the government responds slowly to or even ignores their major reports on civil liberties.264 The tension over SUHAKAM’s efficacy and the resultant governmental reluctance to endow it with further powers is perhaps best illustrated by Minister Datuk Seri Nazri Aziz’s comment during an interview – when asked if SUHAKAM should not remain a powerless government agency, he replied that was not meant to have ‘teeth’.265 Despite such constraints, however, civil society in Malaysia has grown sizeably and tends to be very vocal.266 In addition to the obvious organisations which champion civil and political rights like Suara Rakyat Malaysia (SUARAM) and Aliran Kesedaran Negara (ALIRAN), 261

262

263 265 266

SUHAKAM press releases at www.suhakam.org.my/en/press_room/list.asp?y¼2006& type¼PRESS. US State Department, Bureau of Democracy, Human Rights and Labor, 2006 Human Rights Report: Malaysia, at www.state.gov/g/drl/rls/hrrpt/2006/78780.htm. 264 Whiting, supra note 255, at 80–8. Suaram, 2005 Report, supra note 237, at 131. ‘SUHAKAM was Never Meant to have any Teeth’, The Star, 27 March 2006. For greater description of the civil society networks, see Eldridge, supra note 26, at 95–100; Nagata, supra note 211, at 232 and 244–5; Funston, supra note 211, at 188–90.

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there has been a proliferation of NGOs which deal with women’s issues such as Sisters in Islam, Tenaganita, and Women’s Aid Organisation. In particular, Sisters in Islam seeks to promote the equality and dignity of women within the framework of Islam, while Tenaganita works to protect female workers in agriculture and manufacturing, as well as ‘single mothers, trafficked women, domestic workers, sex workers, migrant workers and people living with HIV/AIDS’. 267 In addition, international organisations like Amnesty International, the United Nations High Commissioner for Refugees (UNHCR) and the International Committee of the Red Cross (ICRC) have delegations in Kuala Lumpur. Turning from the institutional framework and its interaction with human rights, we go to examine a particularly Malaysian exigency – that of positive discrimination among the races. As we have seen, racial equality is not guaranteed in practice due to the bumiputra preferential policies. Thus as long as there is a need to equalise the socio-economic differences between the races, Malaysia will not sign up to CERD and will reserve its rights with respect to anti-discrimination provisions in other human rights treaties.268 Malay superiority is also clearly evidenced within Malaysia’s ruling coalition, Barisan Nasional (BN – National Front), which was established in 1974 in place of the Alliance. Within the BN, UMNO dominates the other parties, including the larger BN members like the Malayan Chinese Association (MCA) and Malayan Indian Congress (MIC) which were co-opted into the Alliance in the independence struggle against British rule in the 1950s.269 Yet while there have been recurring tensions and unhappiness, the dissent has not been so overwhelming as to change the status quo. Clearly, the other races have become acquiescent of this system, deeming it futile to fight against it lest they be accused of sowing internal discord. To this end, they continue to ‘seek concessions within [this] framework’.270 It is recognised that racial biases and policy stereotypes have since become entrenched such that Malaysia’s ‘fundamental plural society classification [has become] something of an iron cage that imprison[s] people’s minds and imagination as to possible alternative ways of perceiving and organising activities and relationships’.271 267

268 270

Sisters in Islam’s mission outline at www.sistersinislam.org.my/mission.htm; Tenaganita’s mission outline at http://tenaganita.disagrees.net/info/index.php?option¼com_content& task¼view&id¼12&Itemid¼27. 269 Eldridge, supra note 26, at 91. Funston, supra note 211, at 163. 271 Eldridge, supra note 26, at 91. Nagata, supra note 211, at 229.

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Although the NEP did reduce poverty, it did not dramatically shore up the wealth of the bumiputra as desired.272 In fact, in June 2007, Badawi expressed his disappointment that the bumiputras had yet to achieve the targeted 30 per cent equity in the domestic economy due to lack of entrepreneurial skills.273 A study showed that bumiputra capital ownership reached only 20.3 per cent (up from an apparent 2 per cent) while non-bumiputra ownership rose from 9 to 46 per cent in 1990. It was telling that further data on the NEP was never disclosed as it was deemed too politically sensitive.274 Moreover, socio-economic justice in sharing of the nation’s wealth with the poorer Malays did not occur as the NEP merely closed ranks between the politically powerful and business leaders. This was because the strong executive has always largely controlled the privatisation of the public sector (especially during the 1980s). Its tendency to award contracts without open competition has also led to allegations of cronyism.275 Predictably, unequal treatment led to unhappiness by the other races such that in addition to the unrest of 1987, ethnic tensions rose again in 1999–2000. In September 1999, a ‘seventeen-point election appeal’ was issued by over 2,000 associations. This appeal transcended merely Chinese interests and called for the need for anti-corruption, a review of uncontrolled privatisation, advance democracy and transparency, human rights protection, avoiding the excessive use of the ISA, environmental protection, upgrading social services, women’s rights, free media, confidence in the police force, provisions for aboriginal peoples, and cultivation of Malaysia’s multi-ethnicity.276 It is uncertain how such tensions will dissipate, even with the Ninth Malaysia Plan (9MP) which professes to make the opportunities more level for the Chinese, Indian, and other racial groups.277 As it is, these positive discriminatory policies stay,278 even after the uproar 272

273

274 275 276 277

278

For an examination of the political issues regarding New Economic Policy, see Brown, supra note 220. ‘Abdullah Disappointed Bumis yet to Achieve 30 Percent Share of Economy’, Bernama, 30 June 2007. Eldridge, supra note 26, at 92; Funston, supra note 211, at 193. Funston, ibid., at 176–7, 191. Nagata, supra note 211, at 241. See Ninth Malaysia Plan (9MP) Projects, Comprehensive Development Plan (CDP), at www.iskandarmalaysia.com.my/comprehensive-development-plan-cdp, chapters 4 and 5. Ibid.

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over the European Commission’s representative to Malaysia, Thierry Rommel’s comment on the NEP being a form of domestic ‘trade protectionism’.279 Another important point of tension between the races is the precedence of Islam over the other religions. In 2007 alone, several notable contentions over freedom of religion erupted and these complaints were registered in the Universal Period Review of Malaysia in 2009.280 For one, it is very difficult to gain building permission for anything other than mosques. Chong Kah Kiat resigned as deputy chief minister of the state of Sabah to protest the denial of building permission for a Goddess of the Sea statue as it was ‘too close to a mosque’. Adding insult to injury, Abdul Hamid Othman, the religious adviser to Badawi, criticised that Chong was ‘politicising the issue’.281 Additionally, the Malaysian government pronounced a last minute ban on the highprofile interfaith ‘Building Bridges’ conference for the promotion of Muslim–Christian dialogue that Archbishop of Canterbury, Rowan Williams, was scheduled to chair.282 Adding to the controversy has been the numerous incidents of families being broken up and people being forced to undergo ‘rehabilitation’ when they wanted to convert from Islam to other religions. A point to note about the bumiputra policy is that preferential treatment for Malays depends on their adherence to Islam. The Malay identity is inextricable from the profession of Islam such that if one renounces it, the bumiputra privileges are denied.283 Moreover, it is extremely difficult, if not impossible, for Muslims (of any race) to convert to other religions and this has created a lot of problems and constitutional discussions regarding the freedom of religion and 279

280

281

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283

Malaysia’s Raw Nerve: Affirmative Action, Reuters, 2 July 2007. Contrast this with incumbent prime minister, Najib Razak’s, actions in tweaking the New Economic Policy, see Bilveer Singh, ‘Malaysia in 2009: Confronting Old Challenges through a New Leadership’, 50(1) Asian Survey (2010) 173, at 176. Summary Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(C) of the Annex to Human Rights Council Resolution 5/1: Malaysia, UN Doc. A/HRC/WG.6/4/MYS/3, 27 October 2008. See also Thio Li-ann and Jaclyn Neo, ‘Religious Dress in Schools: The Serban Controversy in Malaysia’, 55 International and Comparative Law Quarterly (2006) 671 (discussion of the controversy over religious dress by schoolchildren). ‘Religious Tensions in Malaysia: One Faith More Equal than the Rest?’, SEAPSNet, 11 May 2007. ‘Summit on Religious Harmony is Thrown into Discord by Malaysia’, The Times, 10 May 2007. Constitution of Malaysia 1963 (as amended), art. 160(2).

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alleged apostasy.284 In the widely condemned case of Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Others,285 a Malay Muslim lost a six-year legal battle to remove the word ‘Islam’ from her personal identification card in May 2007 on the grounds of it being in the jurisdiction of the Syariah courts rather than the federal system.286 This seminal case thus established that the competence to rule on apostasy matters lay in the hands of the Syariah courts rather than the civil ones.287 Whatever the anomalies of the human rights situation in the domestic context, especially in relation to its bumiputra policy, it is significant that Malaysia has come out to openly support human rights in its foreign policy – a sea change from Mahathir’s polemics and denunciation during the 1990s. Badawi has constantly exhorted the practice of Islam Hadhari (moderate Islam) throughout the Muslim world as the chairman of the Organisation of Islamic Countries (OIC).288 During Badawi’s term in office, Malaysia lobbied and won a seat on the UN Human Rights Council for 2006–9, and its former foreign minister, Syed Hamid Albar, was active in trying to engage Myanmar through ASEAN.289 Malaysia has also been very concerned over the plight of the Muslims in the Thai South ever since the resurgent fighting in 2004, expressing openness to any bilateral cooperation with Thailand to solve the security problem. However, given that Thailand views the insurgency in the south as a domestic issue, it is uncertain how much Malaysia is allowed or will be able to help.290 While Malaysia under Prime Minister Najib Razak has been elected to a second term (2010–13) on the UN Human Rights Council, it is uncertain if real human rights improvements will be witnessed in Malaysia. 284

285

286

287 288

289 290

Nagata, supra note 211, at 230. For a contemporary and insightful discussion of the issues, see Mohamed Azam Mohamed Adil, ‘Restrictions in Freedom of Religion in Malaysia: A Conceputal Analysis with Special Reference to the Law of Apostasy’, 4(2) Muslim World Journal of Human Rights (2007) 1. Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Others, Civil Appeal at the Federal Court of Malaysia, No. 01–2–2006(W), 30 May 2007. Joseph Chin Yong Liow, Piety and Politics: Islamism in Contemporary Malaysia (Oxford: Oxford University Press, 2009), at 66. Azam, supra note 284, at 22–3. Final Communique´ of the Annual Coordination Meeting of Ministers of Foreign Affairs of Member States of the Organization of the Islamic Conference, OIC/NY/FC/FINAL, 25 September 2006. ‘Myanmar Still on ASEAN’S Mind, Says Syed Hamid’, Bernama, 30 June 2007. ‘Upbeat Words and False Optimism on the Resolution of the Southern Conflict’, SEAPSNet, 25 June 2007.

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Singapore Turning now to Singapore, it has expressed less enthusiasm for human rights than Indonesia, the Philippines, Thailand, and Malaysia, maintaining a reserved stance on human rights through the years. After its ‘Asian values’ outburst in the 1990s, human rights never really developed into an issue of note within the larger Singapore society. As compared to its neighbours, where human rights claims have increasingly been contended against the state either through judicial mechanisms or popular movements, the language of human rights has been largely silent in Singapore. Moreover, unlike the other four ASEAN states surveyed, Singapore does not have a national human rights commission – and there have not been suggestions that one is on the drawing board – to carry out investigations and public education programmes. Civil society, too, is much smaller and less active than in the neighbouring states. While NGOs and government bodies work on rights-related issues such as labour, migration, and housing, these efforts are made not in terms of the ‘rights’ the people and communities should have but rather in terms of social development and improvement.291 This may be somewhat puzzling given that Singapore’s good governance standards, low corruption, able civil institutions, and high socio-economic capacity means it is in a position to ably adhere to international human rights. This should in theory translate to the maturation of civil society in line with middle-class growth patterns, the adoption of more human rights treaties, not least the ICESCR – a treaty which embodies Singapore’s oft-professed socio-economic priorities – and a more vocal participation at the regional level. This disparity between the level of development and the socio-political consciousness of human rights is all the more curious when it holds a visibly better human rights record than its four neighbours. For instance, there have been no gross violations like extra-judicial abuses by security forces or orchestrations of military coups in the name of democracy. Being a prosperous nation has also enabled Singaporean citizens a higher standard of living and fewer wants on the socio-economic front. Indeed, many of the human rights violations Singapore stands accused of have 291

The author is a member of the NGO, MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism). In MARUAH’s outreach efforts on human rights public education and engagement with other bodies on how to develop the human rights profile in ASEAN, there is general hesitancy and even reluctance in discussion and/or participation.

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tended to occur in the civil-political arena, such as the strict domestic controls on the right to information, association and assembly, and the like. What are the reasons underlying the Singapore position towards human rights and what effect has this had on the development of human rights discourse in Singapore? To be sure, Singapore has always maintained itself to be supportive of human rights, albeit within the parameters of national objectives and according to its own ideas and values. Former minister of foreign affairs, Wong Kan Seng, stated at the World Conference on Human Rights in Vienna in 1993 that ‘“human rights”, “democracy” and good government [were] sometimes used as if they were synonyms. There [was] certainly a degree of overlap. But they [were] not the same thing.’292 Therefore, the twin governing imperatives of fostering economic prosperity and socio-political stability has necessitated that human rights be subsumed within the careful parameters of nation-building and racial harmony.293 The government justifies this by pointing to the exigencies of the Singapore polity – a small nation-state with no natural resources to generate a sustainable economy, the geo-political fragility of having a Chinese-majority population among Muslim states, and on the painful lessons of inter-racial tensions in the early days of independence.294 A closer look at the post-war events will illustrate this more clearly. Although popular movements worked to get rid of British colonial rule in Singapore after the Japanese occupation ended in 1945, it was not until the May 1959 elections when the People’s Action Party (PAP) won an overwhelming majority of forty-three out of fifty-one constituencies and its Secretary-General, Lee Kuan Yew, assumed office as Singapore’s first prime minister, that Singapore got a semblance of self-rule. Lee’s express aspiration was to achieve an independent, democratic, 292

293

294

Wong Kan Seng, ‘The Real World of Human Rights’, Statement made at the World Conference on Human Rights, Vienna, 16 June 1993, quoted in Kevin Y.L. Tan, ‘Fifty Years of the Universal Declaration of Human Rights: A Singapore Reflection’, 20 Singapore Law Review (1999) 239, at 240. Raj Vasil, ‘Trade Unions’, in Kernial Singh Sandhu and Paul Wheatley (eds.), Management of Success: The Moulding of Modern Singapore (Singapore: Institute of Southeast Asian Studies, 1989), 144 at 157. See e.g., Richard Stubbs, ‘States, Sovereignty and the Response of Southeast Asia’s Miracle Economies to Globalization’, in David A. Smith, Dorothy J. Solinger and Steven C. Topik (eds.), States and Sovereignty in the Global Economy (New York: Routledge, 1999), 229 at 233; Diane K. Mauzy and R.S. Milne, Singapore Politics under the People’s Action Party (London: Routledge, 2002), at 100.

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non-communist, and socialist Malaya. Like its neighbours, the post-war times were tumultuous and fraught with internal party struggles, as well as there being threats of communist insurgency in society at large. When its left-wing faction broke off to form the Barisan Sosialis (BS – Socialist Front) in 1961, the PAP government sought merger with Malaya to stabilise Singapore’s position. Fortunately for them, the then prime minister of Malaya, Tunku Abdul Rahman, had retracted from his earlier stance. He had felt that Singapore and Malaya were too divergent in their socio-political ideals, especially regarding ethnic equality, for such a merger to be successful. Yet, now fearing the potential ramifications of a communist Singapore as Malaya’s neighbour, he acquiesced to Singapore’s entry to the Malayan Federation.295 However, the Tunku’s misgivings proved right and a clash of political goals erupted between the PAP government of Singapore and UMNO, the dominant party in Malaya. UMNO’s campaign for special privileges for the Malays in Singapore conflicted with Lee’s vision of a ‘Malaysian Malaysia’, with equitable political and economic opportunities for all races. After racial violence erupted between the Chinese and Malay communities in 1963–4, the longstanding disagreement led to Singapore’s expulsion. On 9 August 1965, Singapore achieved independence.296 Faced with a hypersensitive society riven by racial tensions and saddled with poverty, unemployment, illiteracy, and a housing shortage, the PAP government needed to prove its governing credentials and legitimacy by transforming Singapore into a stable, prosperous entity. Lee later explained his leadership priorities as: First, provide the basics so that our people can lead healthy lives and find their fulfilment in a high-quality environment. Second, a tranquil and stable environment for personal and political freedoms for the overwhelming majority. In other words, our priorities are first law and order, the foundations for an equal and just society, one in which every citizen is equal before the law, and where the rewards awarded and the punishments inflicted are fair. The government has placed primary emphasis on equal opportunities for education, health, housing, and jobs, paid in accordance with the value of work, facilities for recreational and cultural pursuits.297 295

296

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Shee Poon Kim, ‘The Evolution of the Political System’, in Jon S. T. Quah, Chan Heng Chee, and Seah Chee Meow (eds.),Government and Politics of Singapore (Oxford: Oxford University Press, 1985), 3 at 6. Shee, ibid., at 7; Damien Kingsbury, South-East Asia – A Political Profile (Oxford: Oxford University Press, 2001), at 334. Straits Times, 17 August 1984, quoted in Tan, supra note 292, at 243.

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To achieve all this, the government therefore modified the unicameral parliamentary model to suit its needs. Unlike Sukarno’s Indonesia, which initially experimented with liberal democracy, Lee’s government immediately opted for a limited democracy as it was convinced that this would work far better in the people’s interests, without the executive being sidetracked by public emotions. The leaders believed that democracy could easily be exploited as a political tool in the hands of its largely uneducated population and had earlier stressed in the PAP’s first manifesto that ‘real and effective democracy [would only be] possible on the basis of a literate and educated nation’.298 Thus, determined for its policies to work, a tough stand was taken – the people were exhorted to build up industrial Singapore while at the same time preventive detention laws such as the Internal Security Act (ISA) were activated to crack down on triads, communists, and racial rioters.299 This emphasis on strong governance has continued under the unbroken line of PAP leadership in Singapore. With the parliament’s powers ‘constitutionally delineated’ and the strength of the PAP voice due to the low numbers of opposition, nominated, and non-constituency members of parliament, the president as titular head of state, executive power effectively lies with the prime minister and his cabinet.300 Added to that, it has been observed that the judiciary ‘does not see itself as an institution that must remain non-partisan’.301 On the whole, it considers itself crucial to national development and thus works closely with the government in pursuing the same goals. It shares the executive’s belief that individual liberty can be limited for the sake of majority progress, prosperity, and racial harmony.302 To further strengthen the state, the civil service has been intentionally employed as part of the governing mechanism so as to help the political leaders achieve their nation-building 298

299

300

301 302

For a range of perspectives on this theme, see e.g., Ross Worthington, Governance in Singapore (London: RoutledgeCurzon, 2003), at 64; Ian Patrick Austin, Goh Keng Swee and Southeast Asian Governance (Singapore: Marshall Cavendish, 2004), at 14; and Raj Vasil, A Citizen’s Guide to Government and Politics in Singapore (Singapore: Talisman Publishing, 2004), at 56–7. Michael Haas, ‘A Political History’, in Michael Haas (ed.), The Singapore Puzzle (Westport: Praeger Publishers, 1999), 15 at 21. For a summary view of the Singapore constitutional system, see Thio Li-ann, ‘Rule of Law within a Non-Liberal “Communitarian” Democracy: The Singapore Experience’, in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (London; New York: RoutledgeCurzon, 2004), 183 at 187–8. Vasil (2004), supra note 298, at 72. Ibid., at 73–4. Further discussion about judicial review and independence, below, at 41.

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objectives.303 Assisted by a state-controlled media and other public institutions, all this makes for a watertight government structure in which ‘functions, loyalties, and interests are seemingly homogeneous’,304 as well as legitimately neutral on the basis of the national interests of economic and social stability.305 With the strong PAP influence in the public sphere, what has Singapore’s experience of human rights been? As strongly stressed by its establishment, Singapore does not obviate human rights – its domestic legal system is sufficient protection in line with national objectives. Yet this stance demonstrates a staunch unwillingness to be influenced by external factors. Indeed, in the area of children’s protections, Singapore declared, when acceding to the CRC in 1995: The Constitution and the laws of the Republic of Singapore provide adequate protection and fundamental rights and liberties in the best interests of the child. The accession to the Convention . . . does not imply the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore or the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution.306

However, the constitution has been observed to only enumerate a short list of fundamental liberties such as due process rights and the freedom of religion, and conspicuously excludes the rights to property and to vote.307 In view of the limited land Singapore has and the need to acquire land swiftly and effectively for urban redevelopment, the state had omitted the right to property when drafting its Constitution and also enacted the Land Acquisition Act towards these ends.308 Singapore also does not subscribe to the ‘freedom against torture’ clause in its Constitution, and unsurprisingly has not signed up to the Convention against Torture and other Cruel, Inhuman or Degrading 303

304

305 306

307

308

Yeo Lay Hwee, Tan Hsien-Li, and Joanne Lin, Governing Singapore: How, Why and Where are We Heading?, Civic Exchange (September 2005), at 8–9. Terence Chong, ‘Embodying Society’s Best: Hegel and the Singapore State’, 36(3) Journal of Contemporary Asia (2006) 283, at 284. Ibid., at 290 and 295. Declarations and Reservations to the Convention on the Rights of the Child 1995, Singapore, Reservation para.3, at www.unhchr.ch/html/menu3/b/treaty15_asp.htm. Thio Li-ann, ‘Taking Rights Seriously? Human Rights in Singapore’, in Peerenboom, Petersen, and Chen (eds.), supra note 101, 158 at 159. See also, Constitution of Singapore 1963 (last revised 1999), arts. 9–16. For a detailed discussion of Singapore’s adherence to basic human rights as detailed in the UDHR, see Tan, supra note 292. Tan, ibid., at 258. See Land Acquisition Act, Chapter 152 (revised 1985).

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Treatment or Punishment.309 This has caused some criticism especially over Singapore’s use of caning and the death penalty – punishments deemed by many Western states as cruel and inhumane.310 In particular, the Singapore government came out strongly against Amnesty International’s 2004 Report, ‘Singapore – The Death Penalty: A Hidden Toll of Executions’,311 for deliberately misrepresenting and distorting the national facts concerning the death penalty.312 In its defence, Singapore argued that: Mandatory death sentences [were] prescribed when the crime [was] so serious that the death penalty [was] warranted for the commission of the offence, when made out, under any circumstances. This [sent] a strong signal to would-be offenders, to deter them from committing crimes such as murder and offences involving firearms, which would severely compromise the safety and security of Singapore. In the case of drug trafficking, the death penalty [had] deterred major drug syndicates from establishing themselves in Singapore.313 [Therefore], the Singapore Government [made] no apology for its tough law and order system [as] Singapore is widely acknowledged to have a transparent and fair justice system and is one of the safest places in the world to live and work in.314

Singapore further declared that Amnesty International had made ‘the sweeping statement that the death penalty was a violation of international human rights standards’,315 stating that it disagreed with that position because: There is no international consensus on abolition of the death penalty. Key international instruments that apply to countries with wide divergences in cultures and values do not proscribe the use of the death penalty in their texts. For example, even the International Covenant on Civil and Political Rights provides that the death sentence ‘may be imposed only for the most serious crimes’.316

The death penalty issue played out in the landmark decision of Yong Vui Kong v. Public Prosecutor and another Matter in the Singapore Court of Appeal, where the appellant was convicted of drug trafficking and faced the mandatory death penalty as stated in the Misuse of Drugs Act.317 309 311

312 315 317

310 See Constitution of Singapore, supra note 307. Tan, supra note 292, at 246. Amnesty International, Singapore – The Death Penalty: A Hidden Toll of Executions, ASA 36/001/2004, 15 January 2004 [AI, Death Penalty]. 313 314 Ibid., para. 12. Ibid., paras. 3–4. Ibid., para. 5. 316 Ibid., para. 6. Ibid., para. 7. Yong Vui Kong v. Public Prosecutor and another Matter, (2010) 3 Singapore Law Review 489; (2010) Singapore Court of Appeal 20.

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Here, the Court considered, among others, two issues regarding the reading of Article 9(1) of the Singapore Constitution which provides that ‘[n]o person shall be deprived of his life or personal liberty save in accordance with law’:318 First, that Article 9(1) did not include laws which imposed an inhuman punishment and, since the mandatory death penalty was allegedly an inhuman punishment, the mandatory death penalty provisions in the Misuse of Drugs Act were not ‘law’ within the meaning of Art 9(1); and second, that ‘law’ in Art 9(1) included customary international law, and, since custom prohibited the mandatory death penalty as an inhuman punishment, the mandatory death penalty provisions in the Misuse of Drugs Act violated Art 9(1) and were not law for that reason as well.319

The Court held that Article 9(1) of the Constitution could not be read as including an implied prohibition against inhuman punishment because of Singapore’s constitutional history, especially because this was the state’s express decision notwithstanding the Wee Chong Jin Commission which had recommended otherwise.320 As such, it was also held unnecessary for the Court to decide whether the mandatory death penalty was an inhuman punishment.321 The Court further held that ‘law’ as stated in Article 9 excluded customary international law which had not yet been incorporated into municipal law; even if it did, the Court expressed that it was not persuaded that the international custom prohibiting inhuman punishment included a specific prohibition against the mandatory death penalty. To that end, the Court concluded that the mandatory death penalty was not a violation of Article 9(1).322 As can be seen, the Singapore position on the death penalty is unwavering and justifications remain founded on its constitutional history and exercise of national laws. As to its international obligations, Singapore consistently maintains that it will only accede to treaties it believes it can uphold. In a 2001 parliamentary session, a former minister of foreign affairs, S. Jayakumar, explained:

318 319 320

321

Constitution of Singapore, supra note 307, art. 9(1). Yong Vui Kong, supra note 317. Ibid., para. 120(a). See also Tan, supra note 292, at 245–6 (Singapore’s constitutional history on the Wee Chong Jin Commission and death penalty). 322 Yong Vui Kong, ibid., para. 120(b). Ibid., paras. 120(c)–(e).

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self-determination and democracy It is not that we do not want to accede to these treaties . . . we want to be sure that we will be able to implement the provisions faithfully . . . we do not want to be accused, after we become a state party, that we are in breach of our obligations.323

To date, Singapore has only signed a limited number of international human rights treaties – the Genocide Convention, CEDAW, CRC, and its protocol on the involvement of children in armed conflict.324 One may then ask why Singapore does not sign up to the ICESCR, being patently in a good position to do so. To answer that, it must be recognised that the emphasis on economic prosperity is not commiserate with socioeconomic rights. Not only is the language of human rights highly sanitised, but the state prefers to ‘discuss socio-economic welfare in terms of government programmes and successful welfare gains’.325 Due to the state’s position, there has not been any intentional translation of international norms into domestic laws, and public awareness of the treaties signed is low. Even subsequent changes in the law have never been attributed to international obligations, nor have treaty reporting bodies noted any such modification. To this, Jayakumar asserted: If there is an obligation to enact legislation, we will do so. But . . . if it is a discretionary obligation, we will examine whether other bodies of law, or other legal framework, enable us to comply with the international convention. [And] when we have important conventions to which we accede, we make it a point to have publicity.326

Despite the claims of maintaining high standards domestically, the treaty monitoring bodies of the CRC and CEDAW have found Singapore’s efforts wanting in certain respects, and there is little indication that Singapore is considering to ratify more human rights treaties. The Committee on the Rights of the Child commented in 2003 that domestic legislation did not reflect the CRC fully and that measures needed to be taken to rectify this lacuna as well as to raise public awareness of the treaty.327 The Committee on the Elimination of Discrimination against 323

324 325 326 327

Singapore Ministry of Foreign Affairs media release: Remarks by Minister for Foreign Affairs Prof S. Jayakumar in Parliament, 13 March 2001, in response to NMP Simon Tay on the Government’s review of Human Rights Treaties, at http://app.mfa.gov.sg/2006/ press/view_press_print.asp?post_id=436. Singapore’s ratification of human rights treaties, supra note 60. Thio (2005), supra note 307, at 159 and 171–4. Parliamentary remarks on human rights treaties, supra note 323. Concluding Observations of the Committee on the Rights of the Child: Singapore, 34th Session, 3 October 2003, UN Doc. CRC/C/15/Add.220, at paras. 8 and 18.

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Women has also exhorted the amendment of the nationality law so that children born to Singaporean women overseas can claim citizenship, and that the quota for female medical students be abolished.328 However, the constitutional amendment to correct the citizenship issue in 2004 was to address the shrinking talent pool for the Singapore economy rather than with CEDAW commitments in mind.329 Similarly, entry to the local medical school was made gender-neutral with effect from the academic year 2003 as the government needed to ‘review its policies, make the necessary changes to adapt with changing needs [and] maximise [Singapore’s] human talent’.330 Where an opposing or questioning political stance was deemed unthinkable under Lee Kuan Yew’s leadership, Goh Chok Tong’s government advocated a more open and consultative approach.331 The incumbent prime minister, Lee Hsien Loong, promised yet ‘more space’ just prior to assuming premiership in August 2004.332 This was acknowledged as a positive move by the US State Department.333 After the May 2006 elections, Lee reiterated in his National Day speech that the government would build ‘a more open society and [encourage] freer debate’. By expressing ‘themselves freely but responsibly’, Singaporeans would thus ‘build [our] nation, not chip away at the pillars of [our] society’.334 That said, public space in Singapore continues to grow slowly.335 Regarding political opposition in Singapore, there is a perception that most are incompetent opportunists that pragmatic Singaporeans would not support.336 Whether this is true or mere popular portrayal, it is also 328

329

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331 332

333

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335

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Concluding Observations of the Committee on the Elimination of Discrimination against Women: Singapore, 25th Session, 20 July 2001, UN Doc. A/56/38, at paras. 75 and 92. ‘Push for Rights of Singapore Women’s Foreign-born’, Business Times, 12 June 2003; ‘Kids Born Abroad to Singapore Women to Inherit Citizenship’, Straits Times, 14 May 2004. Statement on Women by Chng Tze Chia, Singapore Delegate to the 60th UNGA, 13 October 2005, at http://app.mfa.gov.sg/pr/read_content.asp?View,4368, paras. 10–1. Vasil (2004), supra note 298, at 80–1. Lee Hsien Loong, Building a Civic Society, speech at Harvard Club of Singapore’s 35th Anniversary Dinner, 1 June 2004, at http://unpan1.un.org/intradoc/groups/public/ documents/APCITY/UNPAN015426.pdf. US State Department, Bureau of Democracy, Human Rights and Labor, 2005 Human Rights Report: Singapore, at www.state.gov/g/drl/rls/hrrpt/2005/61626.htm. Lee Hsien Loong, National Day Message 2006, at http://app.mfa.gov.sg/pr/read_content. asp?View,5015. See an earlier essay on fostering a democratic environment in Singapore by Thio Li-ann, ‘Singapore: Regulating Political Speech and the Commitment “to Build a Democratic Society”’, 1(3) International Journal of Constitutional Law (2003) 516. For a somewhat ‘pro-government’ critique of the Singapore opposition, see Jon S. T. Quah, ‘Singapore’, in Funston (ed.), supra note 19, at 305–6.

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acknowledged that ‘individuals participating in opposition politics are vulnerable to various methods that undermine their pursuit of public office’.337 In particular, common among the litany of complaints against Singapore is how the opposition is undermined, especially through the use of libel lawsuits.338 A recent case was in 2005 when the High Court ordered the opposition leader, Chee Soon Juan, to pay a senior minister, Goh Chok Tong, and the minister mentor, Lee Kuan Yew, half a million Singapore dollars in damages for remarks made in the 2001 election campaign.339 While it has been observed that the executive has largely observed judicial independence, the situation has caused some concern to international observers.340 In particular, the International Bar Association published its report, ‘Prosperity Versus Individual Rights? Human Rights, Democracy and the Rule of Law in Singapore’, in July 2008, detailing the various law suits filed over the years between government leaders and opposition leaders and the foreign media.341 The US State Department has further noted that: Government leaders had used court proceedings, in particular defamation suits, against political opponents and critics. Both this practice and consistent awards in favour of government plaintiffs raised questions about the relationship between the government and the judiciary and led to a perception that the judiciary reflected the views of the ruling party in politically sensitive cases.342

However, the government has repeatedly attested to judicial impartiality.343 The former UN special rapporteur on judicial independence, Dato’ Param Cumaraswamy, had earlier noted that allegations of judicial partiality could have arisen because no opposition party member had ever won a case against the ruling party.344 337

338 339

340 341

342

343

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Christopher Lingle, Singapore’s Authoritarian Capitalism: Asian Values, Free Market Illusions and Political Dependency (Barcelona: Edicions Sirocco, 1996), at 22. Thio (2005), supra note 307, at 168. Amnesty International Report 2006: Singapore at http://web.amnesty.org/report2006/ sgp-summary-eng. For a discussion on the exercise of judicial powers, see Tan, supra note 292, at 250–3. International Bar Association, Prosperity Versus Individual Rights? Human Rights, Democracy and the Rule of Law in Singapore (London: International Bar Association, July 2008.) US State Department, Bureau of Democracy, Human Rights and Labor, 2009 Human Rights Report: Singapore, at www.state.gov/g/drl/rls/hrrpt/2009/eap/136008.htm. See e.g., Singapore Ministry of Law, Detailed Response to International Bar Association Human Rights Institute’s (IBAHRI) Report, 14 November 2008, paras. 71–4. Report of the Special Rapporteur on the Independence of Judges and Lawyers, UN Commission on Human Rights, UN Doc. E/CN.4/1996/37, 1 March 1996, paras. 214–18.

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Public perception of the opposition may, however, be changing. During the 2006 general elections, the Workers Party garnered strong support in several crucial constituencies, though not enough to win.345 It may be perceived as a sign that the Singapore electorate, now better educated than in the early independence years, is more ready to have fuller democratic participation.346 It remains to be seen whether such aspirations will eventually be heeded. In a television interview that the minister mentor, Lee Kuan Yew, had with ten Singaporeans born in the post-independence years, the younger generation voiced their desires of choice, the opposition given a ‘level playing field’, and fair and free media – in sum, ‘fairness in the political sphere’.347 To these and similar sentiments, Lee expressed disappointment, saying that the generation which had laboured to build Singapore to provide them with the current level of development would never harbour such thoughts.348 To satisfy the electorate’s desire for more political diversity in parliament and offer ‘constructive dissent’ (i.e. within official limits), the positions for Nominated Member of Parliament (NMP) and Non-Constituency Member of Parliament (NCMP) schemes were enacted in 1984 and 1990 respectively. While adding to the diversity of voices in parliament, NMPs and NCMPs do not possess the full rights as other MPs do. They are not empowered to vote on parliamentary bills, money or constitutional amendments, or no-confidence motions.349 In addition, the media continues to be strictly controlled through licensing requirements. These include the Newspaper and Printing Presses Act,350 and the Broadcasting Act,351 which empowers the government to limit and control material which could purportedly destabilise the country by discussing sensitive issues of race and religion.352 In large part, there is a culture of self-censorship where people are conscious that they ought to toe the line.353 345

346

348 349 350 351 352

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‘In Singapore’s Election, the Protest Vote Grows Louder’, Agence France-Presse, 7 May 2006. ‘Why My Vote Matters: A Dialogue With Minister Mentor Lee Kuan Yew’, Channel News 347 Asia (television interview), 12 April 2006. Ibid. ‘Singapore’s Young Challengers Beg to Differ’, International Herald Tribune, 6 May 2006. Constitution of Singapore 1963 (last revised 1999), art. 39. Newspaper and Printing Presses Act 1974, Chapter 206 (revised 2002). Broadcasting Act 1994, Chapter 26 (revised 2003). For detailed analysis of how laws, self-restraints, and other mechanisms work in regulating the media in Singapore, see Cherian George, ‘Calibrated Coercion and the Maintenance of Hegemony in Singapore’, Asia Research Institute, Working Paper Series No.48, September 2005. See also, Tan, supra note 292, at 261–4. George, ibid.

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Civil society, while active, remains small.354 The more prominent ones include MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism), which facilitates programmes for human rights awareness locally and also participates in wider regional discussions with the ASEAN-accredited NGO, the Working Group for an ASEAN Human Rights Mechanism, other NGO networks, and ASEAN-level official engagement.355 The Association of Women for Action and Research (AWARE)356 aims at raising awareness on issues related to women in Singapore and bringing about equality in the Singapore polity through advocacy; Nature Society (Singapore)357 concentrates on nature and wildlife conservation; while Transient Workers Count Too (TWC2)358 is a society concerned with the welfare of foreign migrant workers. On the whole, NGOs, which ‘adopt a lowkey conciliatory approach achieve more in terms of policy impact’ than, say, the Think Centre which ‘aggressively promotes human rights’.359 Singapore also incurred bad press when it banned outdoor protests by international activists on the basis of security when the International Monetary Fund (IMF) meeting was held in September 2006. It was only after World Bank President Paul Wolfowitz criticised this move as ‘authoritarian’ that Singapore provided a small indoor area for protestors.360 At the regional level, in the pre-AICHR years of engagement tentative discussions were held on the viability of having an ASEAN human rights mechanism, where the other four states have at some point shown open support, Singapore had always maintained a more cautious ‘waitand-see’ attitude, preferring to see how the mechanism would take concrete shape before adding its voice.361 Nevertheless, Singapore subsequently expressed quiet support for an ASEAN human rights mechanism in parliament in 2007,362 and was noted to be a great help 354 355

356 357 358 359 360 361

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Mauzy and Milne, supra note 294, at 157–68. MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism) at http://maruah.org. Association of Women for Action and Research (AWARE) at www.aware.org.sg/. Nature Society (Singapore) at www.nss.org.sg. Transient Workers Count Too (TWC2) at www.twc2.org.sg. Thio (2005), supra note 307, at 167. ‘Singapore Shift on IMF activists’, BBC News, 15 September 2006. Interviews with Carlos Medina during the ASEAN-ISIS Colloquium on Human Rights, Manila, 14–15 May 2005. Reply by Foreign Minister George Yeo to questions in parliament on ASEAN by Professor Thio Li-ann, 9 April 2007, at http://app.mfa.gov.sg/2006/press/view_press. asp?post_id=2394.

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in bridging the opposing points of view in ASEAN discussions for the establishment of AICHR.363 On intra-regional human rights concerns, despite concern over the situation in Myanmar, Singapore has never expressed any wish to engage the junta to ease the situation, unlike Indonesia and Malaysia. Singapore prefers to maintain a strict position of non-intervention – not telling neighbours what to do but ‘to achieve high standards in Singapore, and then set an example which others would naturally want to follow’.364 How does this bode for Singapore and human rights then? The mindset of Singapore’s ruling elite undoubtedly greatly influences the country’s attitude towards the setting up of a regional mechanism. While it continues to hold fast to its governance principles, it also realises that it must offer a consultative approach. This phenomenon exists partly because those in higher office (such as in the Cabinet and higher echelons of the civil service) share a heightened sense of Singapore’s vulnerability, balanced by the need to keep the electorate reasonably satisfied. While policies are always undertaken with maintaining multiracial harmony and growing economic prosperity in mind, unpopular decisions tend to be defended on the basis of a ‘survival mentality’.365 This no-nonsense approach applied to all arms of the Singapore polity has created what some have called an ‘entirely centralised and antidemocratic’ structure.366 Of course, while there are valid and pressing questions whether the culture of ‘control’ and self-censorship in Singapore should not ease with the onset of greater national wealth, an educated and more sophisticated citizenry who wishes for a freer society – especially the younger Singaporeans born after independence from Malaysia (dubbed the ‘post-65s’), there is on the other hand undeniably a good part of the population who value pragmatic ‘bread and butter’ issues and a government who can deliver economic wealth. While it is questionable if any relaxation in the current rules for governing Singapore would have such a detrimental effect, the political climate in which the state has a relatively fixed stance and many of the people imbibe the ‘economicsfirst’ principle (desire for political relaxation notwithstanding), it is uncertain when and how human rights would be perceived more amenable to the Singapore polity to the extent of expressing mild but firm support like neighbouring Malaysia. 363 366

364 365 Author’s sources. Ibid. Vasil (2004), supra note 298, at 76–7. Austin (2004), supra note 298, at 17.

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Conclusion Having reviewed the five ASEAN states which are the more active proponents of AICHR, we can see that no one country shares the same outlook with its neighbour. Much of this can be attributed to the nationbuilding experiences and types of political governance each state has gone through. For the states that have regularly vocalised support for human rights in both the domestic and international arenas – Indonesia, the Philippines, and Thailand – we can see that a basic form of ‘rights culture’ has arisen both in the government, among the people, and within civil society. While their expressions of human rights and democracy seldom invoke any international human rights treaty, the norms articulated – the freedoms of speech, association and assembly, right to information, a free media, democratic vote, and the right to employment and fair wages – mirror those entrenched in the UN system. There appears to be a trend that where there has been a series of popular struggles against autocratic regimes and as a result democratic governments were eventually set in place, the people are emboldened to voice their concerns publicly and are unafraid to display civil disobedience, even taking to the streets to protest any injustice. This has happened in Indonesia, the Philippines, and even Thailand, where the public and media are unafraid to criticise the junta, which has banned political gatherings and restricted media coverage. More significant, however, is that these governments have gradually thawed their stance towards human rights, even to the extent of open support. This would of course have been aided by the people’s election for more progressive governments, such as Yudhoyono’s government in Indonesia. For states like Malaysia and Singapore, which have elected the same parties back into government since independence, and have shown a more tentative posture towards human rights, theirs is also a story shaped by its historical and political exigencies. There is always the issue of racial sensitivity, while the national priority of socio-economic development has caused it to be somewhat wary of the possible disturbance human rights could cause to this national policy. This had been roundly argued by both states during the ‘Asian values’ debate. Yet this does not signify that change cannot occur. For more rigid state structures, change comes about more gradually and in a less revolutionary manner. It is inevitable that people do want change and empowerment as their economies and societies develop. To this end, civil society groups and the rise of a middleclass does appear to facilitate this progress. This can be exemplified by

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Malaysia. While it has strict media rules and security laws, its civil society is flourishing with numerous vocal local and international NGOs. Even with regard to sensitive issues like the profession and renunciation of religious creeds and the positive racial discrimination policies, grassroots groups and ordinary citizens are unafraid to raise these issues. The courts have also been brought in to resolve questions of religious profession. In addition, the presence of a national human rights commission must have also contributed to the rights awareness within the country. Even with regard to Singapore, which has no such national mechanism, the demands of the rising civil society and younger generation of ‘post-65s’ that has grown up in prosperous times and been exposed to international views have also slowly helped change Singapore’s outlook on human rights. Finally, it would have been noticeable that actual human rights standards do not correspond to the level of human rights support the state expresses. Indonesia, the Philippines, and Thailand easily have the most room for improvement regarding human rights. They need to curb corruption, curtail the abuses by their security forces, institute the necessary infrastructure for better rights protection and redress, just to name a few. Yet they are the self-same states which have established national human rights commissions, professed to work for the people’s welfare and expressed human rights support on the international stage, to the extent of welcoming the potential advent of a regional mechanism. Conversely, Singapore has a record of good governance and constitutionalism. There is also the practice of due process, low corruption, a disciplined police force, and high socio-economic standards. However, as compared to the other four states, Singapore prefers to take a ‘watch-and-wait’ attitude on regional human rights initiatives, including where AICHR is concerned. Ultimately, as we have seen, Southeast Asian approaches to human rights are not fixed. It relies heavily on the incumbent administration and is shaped by the aspirations of the people and civil society. Every country’s political history is embedded in the citizens’ and governments’ consciousness and naturally colours the way the individual states and societies treat human rights. Moreover, there is also some form of disconnect between the layers of human rights mechanisms – what states support on the international level have not translated to enforcement on the national plane, and even now it is uncertain how the UN human rights treaties will mould the protections safeguarded at the ASEAN regional level by AICHR. It is further unclear if and how the AICHR will seek to effect domestic human rights improvements in ASEAN once

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it begins substantive operations after setting in place its Work Plan, Rules of Procedure, and the ASEAN Human Rights Declaration. Nonetheless, the analysis provided in this chapter will prove useful as we discuss in Chapter 4 the rise of the proposal of a regional human rights mechanism in ASEAN, culminating in the establishment of AICHR in October 2009, and predict how human rights will subsequently be developed nationally with the onset of the ASEAN Charter obligations.

4 Instituting the regional rights regime: the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the role of civil society

Introduction In the previous chapter, we saw the differing attitudes of Indonesia, the Philippines, Thailand, Malaysia, and Singapore towards human rights being shaped by their political experiences during the nation-building phase. As was often the case, the struggle for democracy was followed by the consolidation of power in tumultuous times. This has proven to be so pervasive that it has taken these five states a fairly long time to be convinced of the international human rights movement. Nevertheless, change has begun to happen as the era of ‘strongman’ leadership passes. These five societies have gradually gone towards more openness, democracy, and respect for human rights due to heightened awareness among their civil societies and domestic populations. State leaders inevitably have had to accommodate these powerful internal demands or risk losing electoral support. In the worst case scenario, some risked being overthrown if public dissent reached boiling point. As domestic political culture continues to mature, states like Indonesia and the Philippines have taken such pride in their democratic credentials to become strong regional advocates of human rights and democracy. This exists notwithstanding the continuation of human rights abuses within their societies and the challenges their national human rights commissions face. Leaving aside the open question of whether the remaining Association of Southeast Asian Nations (ASEAN) five states of Brunei, Cambodia, Laos, Myanmar, and Vietnam would have political developments that herald a more open, democratic, and affirmative environment for human rights, especially with the advent of the ASEAN Intergovernmental Commission on Human Rights (AICHR), this chapter examines how the impetus for an ASEAN human rights 139

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mechanism arose and how the differing experiences of the original ‘ASEAN-5’ states have helped to mould this process.1 Since the 1990s, there have been annual discussions as to the establishment of a regional human rights institution and each passing year gradually brought about more concrete expressions of such support. Fortuitously, the ASEAN community-building process accelerated the human rights institutionalisation process in the region. To mark the fortieth anniversary of the founding of ASEAN, the ASEAN Charter,2 which aims to transform the informal regional organisation into a more rules-based institution, was signed in Singapore in 2007.3 Among the changes introduced by the Charter was the express undertaking to establish an ASEAN human rights body,4 and the declaration that democracy would be respected while ‘unconstitutional changes of government’5 would be rejected.6 Moving past the initial fears that the setting up of the ASEAN human rights body would be delayed indefinitely,7 AICHR was finally established in 2009.8 While this breakthrough is commendable, pertinent questions remain. How much resolution is there to move the human rights institutionalisation process forward in a meaningful manner? To what extent can we see it as a sign that substantive measures will actually be taken to build the regional mechanism rather than another diplomatic statement that does not add much value or confidence to the region? It must be remembered that despite the surge of human rights rhetoric surrounding the drafting of the Charter, ASEAN remains adamant

1

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3 4 5

6 7

8

The Association of Southeast Asian Nations (ASEAN) was established upon the signing of the ASEAN Declaration (Bangkok Declaration), 8 August 1967, Bangkok, Thailand, by Indonesia, Malaysia, Philippines, Singapore, and Thailand. These five states are known as the ‘Founding Fathers of ASEAN’ or the ‘ASEAN-5’. See ASEAN Overview at www. aseansec.org/about_ASEAN.html. Charter of the Association of Southeast Asian Nations (ASEAN), 20 November 2007 (entry into force 15 December 2008). Singapore Declaration on the ASEAN Charter, 20 November 2007. ASEAN Charter, supra note 2, art. 14. See Tommy Koh, ‘The Negotiating Process’, in Tommy Koh, Rosario G. Manalo, and Walter Woon (eds.), The Making of the ASEAN Charter (Singapore: World Scientific Publishing, 2009), 47 at 60. ASEAN Charter, supra note 2, art. 2(h). Tan Hsien-Li, ‘The ASEAN Human Rights Body: Incorporating Forgotten Promises for Policy Coherence and Efficacy’, 12 Singapore Year Book of International Law (2008) 239, at 242. Cha-Am Hua Hin Declaration on the Intergovernmental Commission on Human Rights, 23 October 2009.

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that the ‘ASEAN Way’ of consultation and consensus continues. Even with the onset of a greater respect for the adherence to rules, ASEAN is in no way going to transform into a supranational organisation like the European Union (EU), which supersedes the sovereignty of its member states.9 Thus it is uncertain despite all the professions supporting human rights that these states actually recognise the far-reaching changes that will occur when a regional system that is supposed to act in accordance with international standards is put in place, even if a justifiable margin of appreciation for regional particularities were incorporated. The most obvious difficulty would be the tension between human rights and the states’ desire to maintain the principles of strong sovereignty and nonintervention. From the earlier chapters, we have seen that ASEAN states have for the longest time exhibited an aversion to supranationalism and intraregional criticism. They have also been hesitant in adopting a regional human rights mechanism because of potential conflict with national interests vested in maintaining the status quo. While human rights are now discussed at official regional forums, there is the simultaneous declaration of the need to keep certain boundaries and steer clear of external interference in the same breath. The gross violations of human rights in Myanmar went unspoken until international criticism rose to a fevered pitch, the conflict situations of East Timor (now Timor Leste) and Aceh were deemed Indonesia’s internal issues, while the tension simmers in West Papua and Ambon in Indonesia, and the protracted fighting in South Thailand and Mindanao in the Southern Philippines have largely gone unmentioned. Only international human rights observers outside of the region have pressed for resolution of these problems. Moreover, AICHR is unlike the Council of Europe system with legal enforcement powers through the European Court of Human Rights.10 As Thio Li-ann and Maznah Mohamad have already pointed out,

9

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See Simon Chesterman, ‘Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person’, 12 Singapore Year Book of International Law (2008) 199, at 210 (that rather than the EU, the Organization on Security and Cooperation in Europe [OSCE] might be a better comparison with ASEAN). AICHR has a limited mandate with no powers of investigation or to accept individual complaints. Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (TOR-AICHR), 20 July 2009, paras. 4.1–4.14. See also Tan, supra note 7 (discussing AICHR’s diluted powers).

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building a regional human rights system is remarkably difficult and will take a considerable amount of time.11 This is despite the fact that while AICHR has the rubrics of past ASEAN cooperative action and documentation on human rights, it also has to start most of its operations from scratch and work out its active mandate as it goes along. Nonetheless the situation is more dynamic ever since the turn of the twenty-first century and the developments happening now would have been unthinkable in the past. This, I believe, is attributable to two vital factors – the first, the changing political dynamics both internally (the rise of civil society and participation of intellectuals, as well as popular movements as examined in Chapter 3) and externally (the implicit geo-political pressure and human rights influence from international organisations); and the second is the untiring effort of civil society and regional intelligentsia in encouraging, engaging, and persuading governments on human rights and related issues. Given that human rights necessitates the open discussion of issues that are often embarrassing to the state, it is unsure how these conflicting demands will be squared so as to avoid an establishment of a toothless AICHR. ASEAN states have always avoided finger-pointing within the grouping. It remains to be seen if AICHR when operational would creatively exercise its competence based on implied powers such that international human rights standards are upheld, and whether AICHR would be accorded the requisite respect to enable it to work effectively despite the inevitable political constraints.12 On procedural matters, there is the question of what competences AICHR possesses. In the decade of pre-AICHR discussions, there was a spectrum of suggestions, ranging from an overarching body with general human rights foci with or without adversarial adjudicative components, to that of a limited thematic commission for the protection of vulnerable groups such as women and children, and migrant workers. Finally it was decided that there would be an AICHR that would act as the overarching body,13 if and when the separate 11

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Thio Li-ann, ‘Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go Before I Sleep’, 2 Yale Human Rights and Development Law Journal (1999) 1; and Maznah Mohamed, ‘Towards a Human Rights Regime in Southeast Asia: Charting the Course of State Commitment’, 24(2) Contemporary Southeast Asia (2002) 230. Per Professor Vitit Muntarbhorn, 8th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Bangkok, Thailand, 14–15 July 2009, para. 6. See also ‘Toothless in Infancy, but the Victory is in Being Born’, Bangkok Post, 16 July 2009. TOR, supra note 10, para. 6.8.

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institutions for the protection of the rights of women and children,14 and migrant workers,15 were set up. There are also the fiscal and logistical problems of gaining sufficient funds and human resources for AICHR’s operations. Many ASEAN states, with the exception of Singapore, are already saddled with bills for domestic expenditure and foreign debt. The ASEAN Development Fund is expected to contribute towards the projects of regional communitybuilding, including strengthening regional human rights.16 However, it is unclear whether this Fund has set aside plans for AICHR’s activities. Moreover, many questions exist as to ASEAN’s political will towards this end, not to mention the immense need for financial and human resources, the building of civil infrastructure, training of officers, and public education such that AICHR can be effective. Compounding all this is the fact that as AICHR lacks a permanent physical locus but instead holds meetings in various ASEAN states, and that ASEAN often takes a long process to finalise substantive action, realising the human rights protections the Charter envisions will necessitate even more consultation and confidencebuilding processes than the realisation of substantive action in the immediate future. In view of the above, I would first like to discuss the guarded ASEAN attitude towards human rights in more detail, uncovering the reasons for such a stand, and comparing the regional outlook as a whole institution as compared to the individual state views in the previous chapter. Second, the possibility of a ‘norm-change’ in ASEAN to facilitate the development of regional human rights through AICHR will also be looked into. Third, the analysis of how civil society engagement with ASEAN has reaped results with regard to human rights 14

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The ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC) has already been set up. See Terms of Reference of the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (TOR-ACWC), Thailand, 24 October 2009; Speech by Vietnamese Prime Minister Nguyen Tan Dung, at the Inauguration of the ASEAN Commission on Promotion and Protection of the Rights of Women and Children (ACWC), Hanoi, Vietnam, 7 April 2010, at www. aseansec.org/24478.htm. While a commission for the promotion and protection of the rights of migrant workers is not yet established, there is a committee that addresses specifically issues pertaining to migrant workers’ rights. See ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW): Work Plan, Singapore, 15–16 September 2008; ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, Cebu, Philippines, 13 January 2007. Agreement on the Establishment of the ASEAN Development Fund, Vientiane, Laos, 26 July 2005.

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and human security will be carried out. Fourth, we look specifically at the efforts of the Working Group for an ASEAN Human Rights Mechanism and how it has contributed significantly to a melting of frigid ASEAN attitudes towards human rights by engaging member states both at the individual and regional levels. Finally, we examine the transformation that AICHR is likely to bring to ASEAN’s human rights landscape.

The dichotomy between the ASEAN Way and human rights To anyone unfamiliar with ASEAN, its relationship with human rights can be quite perplexing, if not frustrating. On one hand it can express openness to rights which is a more recent phenomenon, but on the other hand, and as is more often the case, it staunchly avows to hold on to the traditional principles of sovereignty and non-interference. Without wanting to defend the ASEAN reticence for human rights or to unfairly apportion blame for its indifference, it is necessary to briefly explain the collective psyche which reinforces what we have already seen in the previous chapters. In Chapters 2 and 3 respectively, the evolution of the international polity and human rights movement as well as the individual nation-building processes have contributed to ASEAN states’ rather slow uptake on human rights. In this chapter, we see how this has translated into the regional mindset and highlight what human rights proponents need to be mindful of and manoeuvre through in trying to move the process forward. When ASEAN was established by Indonesia, Malaysia, the Philippines, Singapore, and Thailand in 1967, intra-regional tensions were very high, almost on the brink of military hostilities.17 Previous attempts to build a regional body such as the Association of Southeast Asia (ASA) comprising the Philippines, Malaysia, and Thailand; and Maphilindo (Malaysia, the Philippines, and Indonesia) had failed due to disagreements over the Philippine claim to North Borneo (Sabah) and the Indonesian konfrontasi in the 1960s.18 Hence the primary reason for ASEAN’s establishment was to foster regional harmony through multilateral cooperation in a socio-economic and cultural community. Although it was never intended to be a security compact, ASEAN naturally had an implicit security 17 18

Supra note 1. Mely Caballero-Anthony, Regional Security in Southeast Asia: Beyond the ASEAN Way (Singapore: ISEAS, 2005), at 52–3; Rodolfo Severino, ASEAN (Singapore: Institute of Southeast Asian Studies, 2008), at 1–2, 10–12.

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and political function to prevent armed confrontations among its members.19 Regional peace and security was deemed to be in the member states’ best interests as inter-state conflict would be an undue burden during a time where the newly formed states were struggling with domestic troubles of communist insurgency and racial unrest.20 Moreover, the governments were trying hard to consolidate political leadership and gain a semblance of working authority and stability. As a former foreign minister for Indonesia, Ali Alatas, noted: ‘It was the convergence in political outlook among the five original members; their shared convictions on national priority objectives [that] impelled them to form ASEAN’.21 In concentrating on nation-building, the shared regional principle of ASEAN was that each state ‘minded its own domestic business’, and commenting on neighbouring affairs was strictly out of line. Over a decade, this unique form of interaction among the five states had crystallised into the regional ideology. Enunciated in the Treaty of Amity and Cooperation of 1976,22 it called for: (1) mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations; (2) the right of every state to lead its national existence free from external interference; (3) non-interference in the internal affairs of one another; (4) settlement of differences or disputes by peaceful means; (5) renunciation of the threat or use of force; and (6) effective cooperation among members through consultation and consensus.23 Although these principles were similar to conventional Westphalian principles regulating international relations, their exercise needed to be understood within the ASEAN context.24 Indeed, they have become 19 20

21 22 23 24

Overview of ASEAN at www.aseansec.org/92.htm. Michael Leifer (edited by Chin Kin Wah and Suryadinata), Selected Works on Southeast Asia (Singapore: ISEAS, 2005), at 82–3, 98–110; and Amitav Acharya, ‘Democratization and the Prospects for Participatory Regionalism in Southeast Asia’, in Kanishka Jayasuriya (ed.), Asian Regional Governance: Crisis and Change, (New York: Routledge, 2004), 127 at 131–2. Supra note 19. Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976. Ibid., art. 2(a)–(f). Amitav Acharya, ‘Regional Institutions and Asian Security Order: Norms, Power, and Prospects for Peaceful Change’, in Muthiah Alagappa (ed.), Asian Security Order: Instrumental and Normative Features (Stanford: Stanford University Press, 2003), 210 at 223–5.

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synonymous with how ASEAN diplomacy is carried out and these norms have been termed the ASEAN Way.25 As human rights were never originally professed to be a fundamental ASEAN concern, schemes for such protection have for a long time been omitted from ASEAN documents. Moreover, the political orientation of its members has never really been an issue. Democratic states like the Philippines and Indonesia co-exist alongside communist Vietnam and even the despotic regime of Myanmar.26 When ‘illiberal’ states join, ASEAN extends its ‘judge not, and be not judged thyself ’ guarantee even in the face of the most egregious violations of human rights. The most obvious case was bringing Myanmar into the fold in 1997 despite international criticism.27 Even at present, the freely democratic Philippines and Indonesia will refrain from commenting on the ‘internal’ matters of fellow ASEAN states even if these issues have regional or international ramifications. Thus, to a great extent, ASEAN has its hands tied in reining in its most recalcitrant member, Myanmar, even if it were willing to comply. The Myanmarese junta has ignored ASEAN overtures, leading to frustration of the other members.28 It has also ignored the bigger players like the US and EU, seeing them as interferers.29 To be sure, the ASEAN Way has not prevented sabre-rattling and unfriendly posturing in bilateral disputes. Strong words were exchanged when the violence in South Thailand escalated, resulting in 133 Muslim ‘refugees’ crossing the border into Malaysia in 2005. While Malaysia and Thailand have pledged to be open to cooperation in resolving the South Thailand conflict, the issues of the refugees and the apparent harbouring of Thai militants in Malaysia remain sensitive.30 More recently, Singapore was the whipping boy for many of its neighbours’ domestic 25

26

27

28

29

30

For more on the ASEAN Way, see Donald E. Weatherbee et al., International Relations in Southeast Asia: The Struggle for Autonomy (Lanham, MD: Rowman and Littlefield Publishers, 2005), at 121; Hiro Katsumata, ‘Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the “ASEAN Way”’, 25(1) Contemporary Southeast Asia (April 2003) 104, at 106. ASEAN membership stands at ten – Singapore, Malaysia, Thailand, the Philippines, Indonesia, Cambodia, Laos, Myanmar, Vietnam and Brunei. Mya Than, Myanmar in ASEAN (Singapore: Institute of Southeast Asian Studies, 2005), at 84. ‘US, Indonesian Leaders say China, India should Do More to Convince Myanmar on Human Rights’, Associated Press, 8 September 2007. ‘Myanmar’s Generals Lash Out at the Meddlesome West and its Local Proxies’, SEAPSNet, 11 September 2007. ‘Continuing Violence in South Thailand and Sensitivities in Malaysia–Thailand Relations’, SEAPSNet, 18 January 2006.

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woes – Thailand accused Singapore of spying through the satellites Temasek Holdings had bought through the Shin Corp sale with a former Thai prime minister, Thaksin Shinawatra; Indonesia banned sand exports to Singapore on the basis of environmental damage (and also said to be a way of expediting the negotiations on the bilateral extradition treaty); and Johor, Malaysia, blamed Singapore for the latter’s land reclamation works that had apparently caused the severe flooding suffered by that state in early 2007.31 However as regional tensions have never escalated into full-blown armed conflict since ASEAN’s inception, the ASEAN Way is deemed to have served its purpose well.32

ASEAN’s rejection of norm change: neither participatory regionalism nor flexible engagement It is precisely this comfortable regional arrangement that makes ASEAN states reluctant to accept norm change, not least with respect to human rights. As Amitav Acharya has noted, ‘Norm persistence reflects a fundamental incompatibility between trans-national norms and the ASEAN Way. [The] absence of “receptor” norms makes international human rights norms difficult to assimilate’.33 This in part explains why, apart from the ‘Asian values’ debate that Singapore and Malaysia were heavily engaged in, and the statements made together with the rest of the Asian nations in the 1993 Bangkok Declaration for the right to development and the call for states to be respected in their understanding and reception of human rights,34 the ASEAN Inter-Parliamentary Organisation (AIPO) felt the need to make a separate statement in the 1993 Kuala Lumpur Declaration on Human Rights to emphasise the views of the ASEAN region.35 This declaration basically combined the points made in the Bangkok Declaration and in the ‘Asian values’ debate, stressing the duty to the state and community, socio-economic rights 31 32

33

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‘Let’s All Bash Singapore’, The Economist, 8 February 2007. Rodolfo C. Severino, ASEAN: Building the Peace in Southeast Asia, paper presented by the ASEAN Secretary-General at the Fourth High-Level Meeting between the UN and Regional Organizations on Cooperation for Peace-Building, New York, 6–7 February 2001, www.aseansec.org/3172.htm. As quoted by Amitav Acharya in Herman Joseph S. Kraft, ‘Human Rights in Southeast Asia: The Search for Regional Norms’, East-West Center Working Paper 4 July 2005, at 6. Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok Declaration), Bangkok, Thailand, 29 March–3 April 1993. ASEAN Inter-Parliamentary Organisation (AIPO) Kuala Lumpur Declaration on Human Rights, 4 Asian Yearbook of International Law (1994) 1, at 496–500.

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over civil-political ones, and the emphasis on the right to development.36 The duties of the individual to the state and community were especially strongly expressed, warranting a separate segment on the basic rights and duties of citizens and states.37 While the ASEAN Way has made it difficult for human rights to penetrate into the region, there have nonetheless been efforts to modify the regional principles. ASEAN is not impervious to forces compelling it to reform, or at least to re-examine its norm-status, but these have consistently failed when weighed against the strong preference for the status quo. External geo-political influences are often beyond the control of ASEAN states and so as to better deal with such exigencies, the institution found itself edging towards ‘participatory regionalism’ at one stage.38 What participatory regionalism entails at the most basic level is the involvement of regional members in one another’s affairs. It hence promotes a less absolute form of sovereignty, allowing neighbourly ‘intrusion’ and ‘scrutiny’ of traditional domestic issues such as human rights. Participatory regionalism also goes one step further in state–society relations, envisioning a more inclusive form of regional governance through civil society participation.39 Participatory regionalism was originally introduced to ASEAN in the 1990s by the then Thai foreign minister and incumbent ASEAN Secretary-General (2008–12), Surin Pitsuwan. In view of the need to maintain amicable regional relations, problems with spill-over effects were often left unresolved so as to avoid giving offence. This however led to the affected states having to minimise the domestic impact and not having any recourse for cooperating with the source state in resolving the root of the problem. Particularly for Thailand, this was a time where it felt it needed to condemn the human rights abuses and oppression in neighbouring Myanmar, as well as the rampant drug trafficking and refugee flows into Thailand that the Myanmarese junta was creating through its policies of minority persecution.40 Additionally, it was felt to be helpful if Thailand had the competence to seek answers pertaining to the annual Indonesian fires and haze problem that affected the whole 36

37 39

For instance, Article 1 of the Kuala Lumpur Declaration states ‘All human beings, individually and collectively, have a responsibility to participate in their total development, taking into account the need for full respect of their human rights as well as their duties to the community . . .’; and Article 4 states ‘Each Member State has the right to development based on its own objectives . . . to decide the ways and means of realising its development without external interference’. Ibid. 38 Ibid., part III. Acharya (2004), supra note 20, at 134. 40 Ibid. Ibid.

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region, as well as the issue of East Timor.41 In view of Thailand’s interests, therefore, Pitsuwan voiced the need for less rigidity in ASEAN relations, saying that there ought to be ‘flexible engagement’ in relation to certain regional matters. Thailand went on to propose that ‘issues affecting each other be brought up and discussed . . . without being perceived as interference’.42 The Philippines subsequently supported Thailand’s suggestion in 1997.43 However, it was unsurprising that the other ASEAN states were opposed to this radical step of modifying the traditional ASEAN norms.44 Besides this internal call for change, external calls for the abolition or at least a reform of the ASEAN Way have often been raised.45 Not only are these ASEAN principles said to obstruct the advancement of human rights in the region, they have also hindered the development of other vital aspects of the regional body, especially in relation to security matters such as drug and human trafficking and other trans-national crime as well as refugee flows. Ideally, a more flexible approach in regional relations would facilitate better security and welfare for the people. Yet no matter how many times the issue of changing the ASEAN Way has been advocated, actual norm change has never occurred as this is perceived as detrimental to sovereignty and state interests. These principles have now been enshrined as part of the international law generated by ASEAN in its Charter of 2007.46 Katsumata summarises the collective outlook accurately, saying that ASEAN is unready to relinquish its mode of diplomacy honed through the decades, as sovereignty and domestic stability remain high on the agenda of member states.47 In choosing the ASEAN Way, member states show their unwillingness to expose themselves to intra-regional critique, much less open themselves up to international scrutiny. This has been illustrated in the way the norm of non-interference and respect for state sovereignty have prevailed over human rights abuses in Aceh, East Timor, West Papua, south Thailand, and Myanmar – human rights violations were met with silence from ASEAN and the particular member states involved insisted that the ‘domestic’ nature of the problem was such that it should be free from external interference. 41 43 45

46 47

42 Ibid. Katsumata, supra note 25, at 105. 44 Kraft, supra note 33, at 4. Ibid.; and Acharya (2004), supra note 20, at 135. See e.g., Ju¨rgen Haacke, ASEAN’s Diplomatic and Security Culture: Origins, Development and Prospects (London: Routledge, 2003); Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order (Oxon/New York: Routledge, 2009); Caballero-Anthony, supra note 18. See ASEAN Charter, supra note 2, Preamble; arts. 2(2)(a)–(g) and 20. Katsumata, supra note 25, at 104–5.

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Another observation that can be made regarding participatory regionalism is that it was voiced in the late 1990s and supported by the Philippines and Thailand (which was then in the process of democratisation). It would seem that the support for participatory regionalism would be bolstered in proportion to the official support for democracy and the degree to which a state was affected by its neighbour’s affairs. Take the case of Indonesia. Ever since democratic elections were held successfully and Susilo Bambang Yudhoyono was voted into power in 2004, Indonesia has taken prominent pride in its democratic transition and has initiated an active foreign policy with ‘rogue’ states like Iran and North Korea. Within the region, it has attempted to build ties with Myanmar. It also stated that, as a democratic country, Indonesia would try to share some of its lessons and help Myanmar on the road to democracy, and Yudhoyono visited Myanmar in 2006.48 It can be attested, therefore, that support for human rights from each society depends heavily on the incumbent leadership, the activeness of civil society groups and public intellectuals, as well as the awareness and desire for rights by the public. The likelihood of a state becoming more rights-conscious in the region increases if domestic progress has been made. It might be that as the ASEAN states continue to mature and democratise, especially the ASEAN-5, these states would be willing to reconsider modifying the ASEAN Way (or at least the interpretation and practice of it) in handling regional issues. However, there are always exceptions to the norm as none of the above factors can stand alone by itself. While it may be commonly observed that the domestic transition to democracy usually heralds the increasing acceptance of a ‘human rights-based set of norms’ in ASEAN states, aberrations do exist.49 This point has been noted by Kraft who states that ‘there is no linear causality for domestic political change and the rise of an ASEAN regional mechanism or norm change’.50 He cites the example of Thailand whose democratic consciousness has grown since the political revolution of the 1990s. Under Chuan Leekpai’s leadership during the turbulent reform, democracy and rights were encouraged. However, when Thaksin took over political freedoms were set back and gross abuses of human rights took place.51 The situation worsened under a junta-led Thailand. While the civil society and domestic population are keen to have their democratic rights restored in the new constitution 48 49 50

See Chapter 3. Katsumata, supra note 25, at 250; and Kraft, supra note 33, at 4. 51 Kraft, ibid., at 4. Ibid., at 5.

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during the administration of Abhisit Vejjajiva, which is purported to be more liberal, the domestic impasse Thailand faces continues.52 The new ASEAN Secretary-General, Surin Pitsuwan, who had originally suggested flexible engagement, has acknowledged that things will not change so rapidly in ASEAN, saying, ‘ASEAN needs some restructuring and re-engineering in order to face new sets of challenges that are different from forty years ago’.53 However, as the ten members are at different stages of development, changes have to be incremental due to the need to wait for consensus. All members must ‘be comfortable with the direction, with the pace, with the speed’ in order to move in the same direction.54

How ASEAN softened its stance on human rights Even while the attempt to introduce participatory regionalism from within ASEAN has stalled and AICHR’s efficacy continues to be looked upon with some reservation, it is important to acknowledge that ASEAN has made significant progress towards human rights acceptance, even if much more work needs to be done. When observed carefully, a curious phenomenon was taking place within the same timeframe of the ‘Asian values’ debate and the defiant posturing during the drafting of the Bangkok Declaration in 1993. At that time, ASEAN member states had already begun to take tentative steps towards the idea of instituting human rights on a regional level, in line with ‘universal’ ideals embodied by United Nations (UN) norms, while at the same time respecting cultural subjectivities. As early as 1993, during the 26th ASEAN Ministerial Meeting, the ASEAN foreign ministers declared that the regional grouping should ‘consider the establishment of an appropriate regional mechanism on human rights’55 to support the Vienna World Declaration on Human Rights concluded that same year.56 52 53 54

55

56

See Chapter 3. ‘The Next Asean Secretary-General: Surin Pitsuwan’, Channel News Asia, 28 August 2007. ‘Next ASEAN Secretary-General Surin Pitsuwan Maps Out New Challenges’, Channel News Asia, 28 August 2007. Joint Communique´ of the Twenty-Sixth ASEAN Ministerial Meeting, Singapore, 23–4 July 1993, para.16. This announcement was likely to have been made to appease international criticism of the ‘Asian values’ argument as ASEAN did not follow up on the substantive protection and promotion of human rights till much later. Vienna Declaration and Programme of Action, 12 July 1993, UN Doc. A/CONF.157/23 (1993) (document resulting from the World Conference on Human Rights, Vienna, 14–25 June 1993).

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In an ASEAN’s blueprint for the future – the ASEAN Vision 2020 – announced during the Second Informal ASEAN Summit in December 1997, socio-economic initiatives related to human rights could be inferred from the avowal to make ASEAN ‘a community of caring societies’ and to ‘address issues of unequal economic development, poverty and socio-economic disparities’ by 2020.57 While admittedly this was not in human rights language, the concern for human welfare and the resolve to rectify unjust situations did signify a greater awareness for human rights through human security exigencies. The human rights agenda was made more explicit merely a year later in the 1998 Hanoi Plan of Action (HPA).58 The HPA was a six-year plan of action undertaken by ASEAN to realise ASEAN Vision 2020. Targeting mainly development and poverty eradication, it also denoted specific measures to protect women and children through the ASEAN Plan of Action for Children 1993, the tackling of human trafficking, and curbing violence against women and children.59 Recognition of international obligations in human rights also figured prominently with the express decision to ‘work towards the full implementation of the CRC [Convention on the Rights of the Child] and CEDAW [Convention on the Elimination of All Forms of Discrimination against Women]’ and improving the exchange of human rights information among member states to uphold the principles of the UN Charter, the Universal Declaration of Human Rights 1948, and the Vienna Declaration 1993.60 Incidentally, 1998 also witnessed the ASEAN foreign ministers recalling the pledge made in 1993 to look into the establishment of a regional rights mechanism. The ministers also lauded the Working Group for an ASEAN Human Rights Mechanism (hereinafter the ‘Working Group’) for its work in this area. This was because when the Working Group was established in 1996, it sought regular dialogue with the ASEAN states to promote the regional human rights agenda.61 Through its consistent effort and patience, ASEAN officials were gradually put at ease with the idea of regional human rights. It was no small affirmation, therefore, when the ASEAN ministers commended the effort of the Working Group towards this aspiration through the latter’s 57 58 59 61

ASEAN Vision 2020, Kuala Lumpur, Malaysia, 15 December 1997. Hanoi Plan of Action (HPA), Vietnam, 15 December 1998. 60 Ibid., section IV. Ibid., sections II.4 and IV. Carlos P. Medina, Background of the Working Group for an ASEAN Human Rights Mechanism, at www.hrnow.org/asean/ahrm.htm.

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independent initiatives as well as its regular engagement with ASEAN officials.62 At every ASEAN Ministerial Meeting (AMM) thereafter, the foreign ministers have expressly recognised the merits of continued dialogue with the Working Group towards the eventual establishment of a regional mechanism in their communique´s.63 On the whole, 1998 could be considered a turning point of sorts for ASEAN as it was the inaugural year in which the term ‘human rights’ was expressly used in official diplomacy where previously anything remotely related to this subject was stated in implicit terms. As human rights consciousness grew in ASEAN, so did its collective human rights-related undertakings. Again, these usually took the form of human security and development measures. In addition to its longstanding determination to eradicate poverty and bring about development, ASEAN also added measures needed to tackle the new challenges like those of natural disasters, external economic shocks, and domestic political pressures that arise unexpectedly. For instance, recognising that the 1997 Asian financial crisis devastated not only economies but the socio-economic and even the political structures of many member states, ASEAN has through the years consolidated its efforts in trying to alleviate such negative impacts such as a surveillance initiative and cooperation with China, Japan, and the Republic of Korea.64 Moreover, work plans for social welfare, development, and disaster management have also been set in place, together with programmes for labour, health, rural development, and poverty eradication.65 In the area of healthcare, in addition to discussing the healthcare for the elderly and the rising costs of medical services, avian flu, tuberculosis control, HIV/AIDS, and disease prevention have also been actively pursued.66 In particular, given the ratification of the CEDAW and CRC by all ASEAN member states, the regional protections for women and children have since bolstered. There has been the signing of the 2001 Declaration on the Commitments for Children in ASEAN,67 the 2004 Declaration against Trafficking in Persons Particularly Women and

62

63 64 65 67

Joint Communique´ of the 31st ASEAN Ministerial Meeting, Manila, Philippines, 24–5 July 1998, para.28. AMM Joint Communique´s at www.aseansec.org/17374.htm. ASEAN Response to the Financial Crisis at www.aseansec.org/7660.htm. 66 Social Development in ASEAN at www.aseansec.org/8558.htm. Ibid. Declaration on the Commitments for Children in ASEAN, Singapore, 2 August 2001.

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Children,68 and the Declaration on the Elimination of Violence against Women in the ASEAN Region 2004,69 as well as UNICEF collaborations with ASEAN for long-term cooperation on welfare of children and young persons.70 These actions paved the way for further ASEAN human rights initiatives for women and children, culminating in the establishment of the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC) in 2009.71 However, while these contributed to the overall acceptance of human rights within ASEAN, the real turning point for human rights in ASEAN was spelt out in the Vientiane Action Programme (VAP) in November 2004.72 This was because a year earlier in 2003, when ASEAN unveiled its plans during the signing of the Bali Concord II to forge a stronger ASEAN Community by 2020 through the establishment of the three pillars of ASEAN – the Security Community, Economic Community, and SocioCultural Community – no human rights theme was ever mentioned.73 It was hence widely assumed that if a human rights agenda were ever to arise in ASEAN it would most likely emerge from the third pillar because the socio-economic goals it was tasked to encompass correlated with the human security and development initiatives that had erstwhile been carried out in ASEAN. However, as the three different communities were tasked to arise more or less unilaterally, one could be sure that the establishment of the first (security) and second (economic development) pillars would precede any priority of the third pillar (socio-cultural), and human rights development would be a low priority in ASEAN. With the VAP pronouncement that human rights were to be firmly placed within the political development segment of the ASEAN Security Community, low expectations for ASEAN human rights dissipated.74 In light of ASEAN’s overriding priority of security, this was a huge concession for human rights, a radical promotion from the third to first pillar so to speak. 68

69

70 72

73 74

ASEAN Declaration against Trafficking in Persons Particularly Women and Children, Vientiane, Laos, 29 November 2004. Declaration on the Elimination of Violence against Women in the ASEAN Region, Jakarta, Indonesia, 30 June 2004. 71 Social Development in ASEAN, supra note 65. See supra note 14. Vientiane Action Programme (VAP), Laos, 29 November 2004, para. 1.1(iii), and Annex 1, para. 1.1.4. The VAP was the follow-up six-year plan of action to the HPA which had run its course by 2004. Where the HPA concentrated much on socio-development, commitments to improving the lives of women, children and youth, and the need for information exchange, the VAP’s dictates were much broader in scope. Declaration of ASEAN Concord II (Bali Concord II), Indonesia, 7 October 2003. VAP, supra note 72, para. 1.1(iii).

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The promotion of human rights in the ASEAN Security Community was to encompass: (1) completion of a stock-taking of existing human rights mechanisms and equivalent bodies, including sectoral bodies promoting the rights of women and children; (2) formulation and adoption of a Memorandum of Understanding (MOU) to establish a network among existing human rights mechanisms; (3) formulation of a work programme of the network; (4) promotion of education and public awareness on human rights; (5) establishment of a network of cooperation among existing human rights mechanisms; (6) elaboration of an ASEAN instrument on the protection and promotion of the rights of migrant workers; and (7) establishment of an ASEAN commission on the promotion and protection of the rights of women and children.75 There was also a wide range of social development initiatives with human rights impacts enunciated in the framework for building the ASEAN Socio-Cultural Community in the VAP.76 It is clear then that what the VAP advocated for human rights went beyond previous ASEAN assertions. Over and above the preference for a strong socioeconomic-developmental focus and the duty of the citizenry – such as the continuing concern for vulnerable groups, especially women, children, and the elderly, the improvement of educational standards, job creation, social and labour protections, equitable economic growth, and healthcare mirrored in the themes of ASEAN Vision 2020 – the actual groundwork to build a regional human rights mechanism was raised.77 Subsequently, ASEAN member states expressed an inclination to consolidate the regional network of human rights mechanisms, put in place protections for vulnerable groups including women, children, people with disabilities, and migrant workers, and begin human rights education in the ASEAN Security Community Plan of Action.78 Unfortunately, however, these plans were not activated and ASEAN human rights institutionalisation stagnated. Meanwhile, preparations for the establishment of the ASEAN Charter began,79 and momentum for human rights institutionalisation picked 75 78 79

76 77 VAP, supra note 72, Annex 1, para. 1.1.4. Ibid., Annex 3, para. 3.1. Ibid. ASEAN Security Community Plan of Action, 2005, Annex, para. I.2. Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, Malaysia, 12 December 2005.

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up in earnest again in 2007 after the ASEAN states decided to accelerate the establishment of the ASEAN Community by 2015.80 The Charter drafting process was fraught with difficulties,81 including that of the insertion of the clause for the establishment of an ASEAN human rights body.82 While the ASEAN Charter was signed promptly in November 2007, its ratification process was more problematic.83 After much foot-dragging, Myanmar finally acquiesced (theoretically) to the establishment of a regional human rights body as stipulated in the Charter, with the foreign minister, Nyan Win, presenting his ASEAN counterparts with Myanmar’s Instrument of Ratification at the 41st ASEAN Ministerial Meeting in Singapore in July 2008.84 This action was accompanied by the statement that insisted that there was to be no interference in the internal affairs of member states by the ASEAN human rights body.85 Although the former president of the Philippines, Gloria Macapagal-Arroyo, drew a hard-line stance at the 2007 ASEAN Summit declaring that her country would not ratify the document until Daw Aung San Suu Kyi was released,86 the Philippine Senate ratified the Charter on 7 October 2008.87 Furthermore, the Indonesian parliament was adamant that human rights and

80

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Cebu Declaration on the Acceleration of the Establishment of an ASEAN Community by 2015, Philippines, 13 January 2007. See also the Eminent Persons Group (EPG) on the ASEAN Charter (2006) at www.aseansec.org/21833.htm; High Level Task Force (HLTF) on the Drafting of the ASEAN Charter (2007) at www.aseansec.org/21831.htm. See particularly, Koh, supra note 5; Ong Keng Yong, ‘At Close Quarters with the Drafting of the ASEAN Charter’, in Koh, Manalo, and Woon (eds.), supra note 5, 107–16. Termsak Chalermpalanupap, Director of the Political and Security Directorate of the ASEAN Secretariat, noted in his chapter, ‘In Defence of the ASEAN Charter’, in Koh, Manalo, and Woon (eds.), supra note 5, 117, at 126–7: It should also be pointed out that the drafters (with guidance of ASEAN Foreign Ministers) even outdid the [Eminent Persons Group, EPG] members by coming up with the provision for the establishment of an ASEAN human rights body as a new ASEAN organ in Chapter IV, Article 14 [of the Charter]. The EPG members found the issue too hot to handle and thus did not attempt to work out any specific recommendation.

83 84

85 86

87

See supra note 3. ‘Myanmar Regime Ratifies ASEAN Charter Including Human Rights Body’, Straits Times, 21 July 2008. ‘Myanmar Opposes Investigative Powers’, Washington Times, 22 July 2008. ‘Singapore Taunts Indonesia, Philippines and Thailand over Charter’, Jakarta Post, 22 July 2008. ‘Philippines Deposits Instrument of Ratification of the ASEAN Charter’, ASEAN Press Release, 12 November 2008.

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democracy should play a more visible part in ASEAN’s transformation into a rule of law organisation, refusing to ratify the ASEAN Charter on the grounds that the human rights body articulated in Article 14 was ineffectual.88 This impasse was overcome when Indonesia eventually ratified the Charter on 21 October 2008 on the condition that human rights institutionalisation would continue to be strengthened and democratic rule would be encouraged in member states like Myanmar.89 With that last ratification, the ASEAN Charter entered into force on 15 December 2008.90 By 20 July 2009, Terms of Reference (TOR) of the AICHR was endorsed by the ASEAN foreign ministers.91 Subsequently, AICHR was established on 23 October 2009.92

The promotion and protection of human rights by AICHR By virtue of being a treaty, the ASEAN Charter gives legal force to ASEAN’s express desire to establish a human rights body in Article 14, the rest of the regional mandate for human rights is, for the time being, without impact of the law. The TOR, which maps the parameters and structure of AICHR, and the ASEAN Political-Security and SocioCultural Community Blueprints, which elaborate ASEAN’s substantive human rights objectives by 2015, are all soft law without enforcement mechanisms or penalties.93 The AICHR Rules of Procedure being drafted and the soon-to-be drafted ASEAN Declaration on Human Rights will also have the same recommendatory status. As to the powers that AICHR possesses, what AICHR professes to do is somewhat contradictory. On one hand, it has an express purpose to promote and protect human rights and fundamental freedoms of ASEAN peoples and uphold international human rights standards as prescribed by the Universal Declaration of Human Rights (UDHR), the 1993 Vienna Declaration and Programme of Action, and other 88

89

90 91 93

See the exchange between Jakarta Post writers Kornelius Purba and Tony Hotland, ‘As a Good Neighbour, Indonesia should Ratify the ASEAN Charter’, Jakarta Post, 21 July 2008 and Rizal Sukma, ‘To be responsible, Indonesia should not ratify the ASEAN Charter’, Jakarta Post, 21 July 2008. ‘ASEAN Embarks on New Era – ASEAN Charter Fully Ratified’, ASEAN Press Release, 21 October 2008. ASEAN Charter, at www.aseansec.org/21861.htm. 92 Supra note 10. Supra note 8. ASEAN Political-Security Community Blueprint, Thailand, 1 March 2009; ASEAN SocioCultural Community Blueprint, Thailand, 1 March 2009.

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international human rights instruments to which ASEAN member states are parties.94 On the other hand, it is constricted by having to (only) ‘promote human rights within the regional context, bearing in mind national and regional particularities’,95 maintain respect for different historical, cultural, and religious backgrounds, and also strike the right balance between rights and responsibilities.96 Additionally, AICHR’s adherence to the ASEAN Way was reiterated,97 that it would pursue a non-confrontational agenda, and adopt an ‘evolutionary approach that would contribute to the development of human rights norms and standards in ASEAN’.98 AICHR’s mandate specified in the TOR for its first five-year term of operation seems unduly limited.99 As mentioned previously, AICHR has no powers of investigation or to accept individual petitions. It is instead to develop an ASEAN Human Rights Declaration,100 enhance capacity building and public awareness of human rights through education, research, and dissemination of information,101 provide advisory services and technical assistance,102 and carry out thematic studies of human rights issues in ASEAN.103 To gain a fuller understanding of the tangible deliverables AICHR is to achieve by 2015 for the establishment of the ASEAN Community, the TOR has to be read alongside the Blueprints for the ASEAN PoliticalSecurity and Socio-Cultural Communities.104 In the Political-Security Community Blueprint, ASEAN professes to promote and protect human rights as enshrined in the Charter,105 and stresses seven key actions to this end, including AICHR’s establishment, the systematic stock-taking of existing human rights mechanisms and strengthening the networks among them, improving the human rights information exchange among ASEAN states, and enhancing human rights education and public awareness, as well as working towards sector-specific developments such as a regional instrument for the rights of migrant workers and the establishment of an ASEAN commission on the promotion and protection of the rights of women and children.106 These to a large extent repeat the 94 95 98 100 102 104

105 106

TOR, supra note 10, paras. 1.1 and 1.6. 96 97 Ibid., para. 1.4. Ibid. Ibid., paras. 2.1 and 6.1. 99 Ibid., paras. 2.4 and 2.5. Ibid., paras. 4.1–4.14. 101 Ibid., para. 4.2. Ibid., paras. 4.2 and 4.3. 103 Ibid., para. 4.7. Ibid., para. 4.12. Supra note 93. Note also that the ASEAN Economic Community Blueprint does not mention human rights at all. See ASEAN Economic Community Blueprint, Singapore, 20 November 2007. ASEAN Political-Security Community Blueprint, supra note 93, paras. 7, 12, and 15. Ibid., para. A.1.5(i)–(vii).

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initiatives mooted in the VAP and ASEAN Security Community Plan of Action. The Socio-Cultural Community Blueprint further elaborated ASEAN’s human rights objectives, stating that ASEAN prioritised safeguarding the rights and welfare of women, children, the elderly, persons with disabilities, and migrant workers through better information gathering and sharing, the execution of existing ASEAN initiatives, and supporting various activities (including access to remedies and justice) to promote the rights for these vulnerable groups.107 Acknowledging the need for human rights promotion and protection in the private sector, the Socio-Cultural Community Blueprint also sought to highlight the nexus between business and human rights.108 As an initial step to ensure that these objectives are attained, AICHR has met on several occasions to draft its Rules of Procedure and Work Plan. It is believed that these documents will be completed soon and include primarily: (1) drafting of the ASEAN Declaration of Human Rights to enunciate the specific protections for all ASEAN peoples; (2) stock-taking of existing human rights initiatives in ASEAN; (3) building of information networks; and (4) carrying out two thematic studies on (i) business and human rights and (ii) migration.109 While the tasks for AICHR might sound rather promising, considering that ASEAN is building AICHR from scratch, the crux of the matter for many critics is that AICHR aims too low – the promotional aspect of human rights while absolutely necessary should not eclipse crucial human rights protections that AICHR must uphold.110 Moreover, now that AICHR has a long list of deliverables, it is important to ask how it intends to achieve them and to what extent AICHR can actually uphold international standards of human rights. It was probably unavoidable that the strong connections ASEAN states have with respect to AICHR, that it is a consultative intergovernmental body residing within the ASEAN organisational structure,111 were 107 108 110

111

ASEAN Socio-Cultural Community Blueprint, supra note 93, paras. 27–8. 109 Ibid., para. 29. Author’s sources. See e.g., Andrea Durbach, Catherine Renshaw, and Andrew Byrnes, ‘“Tongue and No Teeth?” The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region’, 31 Sydney Law Review (2009) 211; Yuval Ginbar, ‘Human Rights in ASEAN – Setting Sail or Treading Water?’, 10(3) Human Rights Law Review (2010) 504. See an unabashed defence of this stand by Termsak Chalermpalanupap, 10 Facts about ASEAN Human Rights Cooperation, 2009, at www.aseansec.org/HLP-OtherDoc-1.pdf.

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explicitly stated in the TOR.112 Furthermore, with AICHR headed by the representative of the ASEAN state chairing ASEAN that year, the speed and scope of AICHR’s operations would vary according to that state’s priority for human rights.113 AICHR would likely take more incisive action when chaired by Indonesia, the Philippines, and Thailand, but be more subdued when other members chair. As AICHR is to achieve consensus on all decisions, decisions which cannot be concluded are to be referred to the ASEAN foreign ministers for final resolution.114 In light of heavy state involvement, good governance factors like ‘independence’ and ‘transparency’ were omitted from the TOR. Instead, AICHR representatives are to act impartially when discharging his/her duties.115 This was exemplified in the manner by which most of the ASEAN states chose their AICHR representatives. The selection process of AICHR representatives was, to a large extent, neither consultative nor transparent. Many of the AICHR representatives chosen had little experience in working on human rights issues and moreover had previously held official positions.116 The exceptions were Indonesia and Thailand who appointed experienced civil society leaders, Rafendi Djamin and Sriprapha Petcharamesree respectively, to AICHR. All this does not instil great confidence, yet there are glimmers of hope for generational change. As AICHR is only in its first five-year period of operation, it is recognised that the TOR and Blueprints presently set the minimum standard, with greater expansion of powers as AICHR evolves.117 As the official stand is that the ASEAN human rights process is an advancing one, there is room to push for greater powers and higher standards.118 Nongovernmental organisations (NGOs) have already made it clear on several occasions that the establishment of AICHR is only the first step to greater human rights protection in the region, and continue to suggest improvements.119 Vitit Muntarbhorn has also remarked that there are other 112 113 116

117 118

119

TOR, supra note 10, para. 3. 114 115 Ibid., para. 5.9. Ibid., para. 9.8. Ibid., para. 5.7. ‘Rights Groups Condemn ASEAN’, Bangkok Post, 20 October 2009. See also, ‘A Difficult Birth for ASEAN Human Rights’, Bangkok Post, 25 October 2009. TOR, supra note 10, para. 9.6. ‘Southeast Asian Rights Groups Call for Better Dialogue with ASEAN Leaders’, VOA, 9 October 2009. See Tan, supra note 7, for a discussion on the position papers tabled by NGOs to ASEAN when the TOR was being drafted. It is likely that the NGOs will engage AICHR and work until the aspirations detailed within these position papers (e.g., establishment of an ASEAN Convention on Human Rights and an ASEAN Human Rights Court) are fulfilled. Tan, ibid. See also SAPA Task Force on ASEAN Human Rights, AICHR Must Ensure Effective Rules of Procedure in Dealing with Human Rights Violations, 22 March 2010.

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ASEAN mechanisms and documents that can be employed to promote and protect human rights in the region. These are, namely, civil society, the ASEAN Secretary-General, the Councils of the three ASEAN Community pillars, and ASEAN Summits.120 Moreover, it is important to stress that there exist creative avenues for AICHR to carry out protective functions not expressly mandated, that what the TOR ‘does not prohibit is not forbidden’.121 It would, however, take time to see if and how AICHR shrugs off the ‘intergovernmental’ mantle and evolves into a stronger institution which can accept individual complaints and investigate state violations of human rights. In the first year since its establishment, AICHR’s record has not been too impressive. While it was undoubtedly preparing the procedures it needed to function efficiently – drafting the Work Plan and Rules of Procedure and planning the substantive actions to take – it has not appeared to be effective in promoting or protecting human rights. Longstanding human rights violations existing in the ASEAN region have not been commented upon and AICHR also remained silent in the face of abuses that arose suddenly, such as the Maguinadanao massacre of 2009 and the high civilian casualty rate in the use of force by state forces during the Bangkok democracy protests in 2010. AICHR did not condemn or inquire into the matters, though the AICHR representatives from Thailand and Indonesia did so.122 120 121

122

‘Toothless in Infancy, but the Victory is in Being Born’, Bangkok Post, 16 July 2009. Per Professor Vitit Muntarbhorn, supra note 12. ‘What the TOR does not expressly prohibit is not forbidden’ is a common (and generally accepted) refrain heard among the ASEAN human rights community – both official (state) and civil society members – and seen as part of the evolutionary process of the AICHR. Rafendi Djamin, the Indonesian AICHR representative and a strong civil society leader, was reported to have replied to the families of the massacre victims who were petitioning the AICHR to take up investigation of the case as saying: ‘With all due respect to your families, of course, if it were up to me, I will take it up immediately. But AICHR is composed of ten countries. This will have to be discussed, especially how we are going to deal with the complaints. I can only say that I will do my best to really strengthen the position of AICHR– our power and mandate. It will take a bit long time. I’m really sorry about that.’ See ‘ASEAN Human Rights Body Fails Kin of Massacred Journalists’, ABS-CBN, 29 March 2010. The Thai AICHR representative, Sriprapha Petcharamesree, wrote a public letter stating that the Abhisit government had ‘breached the commitments and pledges made to international community and the United Nations as well as violated the obligations of the Thai government towards the ICCPR to which Thailand is party since 1996’. She also advocated that an independent investigation panel comprising regional and/or international members should be established to look into the human rights violations committed during the April and May 2010 repressions. See ‘Advocates Ask Government to Stop Using Force’, Bangkok Post, 17 May 2010.

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In view of the thematic mechanisms of ACWC to protect the rights of women and children and ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW), and these institutions’ relationships with respect to AICHR, AICHR holds that it ‘is the overarching human rights institution in ASEAN with overall responsibility for the promotion and protection of human rights in ASEAN’.123 In particular, AICHR and ACWC have continued to struggle in finding the optimum synergy to coordinate their respective competences. A clear separation of duties and powers between them is necessary to ensure that while AICHR is the ‘overarching’ or ‘umbrella’ mechanism, AICHR’s weaker mandate should in no way impede ACWC’s mandate to uphold international standards of CEDAW and CRC – international obligations which all ten ASEAN member states have ratified and the adherence to which is rightly under the purview of the ACWC.124 The ACWC has enough to contend with, as it is, with the reservations that ASEAN states have made to both conventions.125 As to the ACMW, while there is already the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers,126 progress on the draft ASEAN Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers has been stymied because of Malaysia’s opposition to use ‘the International Labour Organization’s definition of migrant workers, to include documented and undocumented migrant workers, and to include migrant workers’ families’ in the ASEAN framework instrument.127 Migrant labour is a sensitive issue among ASEAN states as sending states (notably Indonesia and the Philippines) are rightly adamant about procuring the essential human rights protections for their nationals working abroad. Nevertheless, despite AICHR’s slow start, ASEAN has come a long way since its opposition to human rights and with continued transformation within the state, among the ASEAN peoples, and in civil society, human rights transformation will continue to pick up speed, and AICHR, the ACWC, and ACMW could succeed despite the very real obstacles. 123

124 125

126 127

TOR, supra note 10, para. 6.8. ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW), supra note 15. TOR-ACWC, supra note 14, paras. 2.5, 3.2, 3.4, and 5.11. Suzannah Linton, ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed ASEAN Commission on Women and Children’, 30 Human Rights Quarterly (2008) 436. Supra note 15. ‘Draft Deadlocked over Key Issues’, Jakarta Post, 28 January 2010.

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Track 2 and 3 influences on human rights Having seen how ASEAN gradually accepted human rights from 1993, a question that begs to be answered now is how the sea-change in the ASEAN attitude was procured. Recalling that the call for participatory regionalism was rejected and norm change of the ASEAN Way at that juncture would rock the fundamental basis of ASEAN’s existence and be too radical a step for the member states to consider, I believe that in addition to internal democratisation, external influences have also helped to ease ASEAN’s aversion to human rights. Non-state initiatives at the Track 2 and Track 3 levels (see below) have found ways and means to circumvent these obstacles. More generally, though, through the development of a less polemical and more intellectual discourse on human rights, a gradual softening of stances on both the East and West sides occurred as the myths of universalism and particularism eroded. Increased academic discussion has further helped to expose the shortfalls of universalist and particularist fundamentalism.128 Greater sociological understanding of diverse societies has also justified certain compromise between the two schools of thought, and states began to understand the truths in the opposing standpoints.129 From a staunch adherence to ASEAN as an elite grouping of high level governmental officials, ASEAN seemed more ready to include a few other voices, at least within the human rights sector. In particular, Track 2 diplomacy has had certain success in widening ASEAN’s scope of action. Persistent engagement and encouragement have elicited positive responses. In regular international relations terminology, Track 2 diplomacy describes a system of ‘informal networking activities, unofficial channels of communication and people-to-people diplomacy’ usually between officials and other stakeholders; while Track 3 actions operate mainly at the level of civil society.130 Within the ASEAN context, Track 2 diplomacy usually refers to ASEAN-ISIS interactions.131 The ASEAN-ISIS is a grouping of institutes of strategic and international studies (ISIS) in ASEAN states.132 Through meetings with 128 129

130

131 132

See Chapter 1. Randall Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debates about Values in Asia’, 14 Indiana International and Comparative Law Review (2003) 1. Brian L. Job, ‘Track 2 Diplomacy: Ideational Contribution to the Evolving Asia Security Order’, in Alagappa (ed.), supra note 25, 241 at 246–7. Per Herman Kraft in Job, ibid., at 258. Overview of the ASEAN-ISIS network at www.siiaonline.org/asean-isis_network.

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ASEAN foreign ministers and senior governmental officials, it has managed to make its suggestions heard at the Track 1 governmental level especially for security matters. The ASEAN-ISIS holds considerably more influence than other Track 2 institutions within the region and may sometimes have links to the states or leading politicians.133 The ASEAN-ISIS network has played a significant role in mitigating the wariness ASEAN has towards human rights and other rights-related subjects in terms of regional security – the traditional mainstay of ASEAN-ISIS work.134 By expanding the ambit of traditional military security to include ‘soft’ security issues pertaining to the human person, the ASEAN-ISIS has heightened awareness among ASEAN member states that a more comprehensive approach must be taken to safeguard regional security and stability. Already concerned about socio-economic growth and stability, the introduction of human security enabled ASEAN to see issues such as poverty, development, standard of living, mortality rates, employment, and labour as factors that could severely detriment the internal security of the state. Notions of non-traditional security gradually paved the way for a more congenial assessment of human rights. As Dewi Fortuna Anwar suggested, ‘Human security is the flipside of human rights’.135 More particularly, ASEAN-ISIS has also been involved in human rights matters in the region, conducting the annual ASEAN-ISIS Colloquium on Human Rights (AICOHR) since 1993. This forum discusses various human rights issues pertaining to women, children, and development in ASEAN.136 In more recent times, AICOHR has focused energies on the potential establishment of an ASEAN regional human rights system.137 Endeavouring to nurture greater civil society (Track 3) involvement in the region and picking up on the ASEAN Vision 2020 promise to build a ‘community of caring societies’,138 the 1998 ASEANISIS Report of the Eighth Southeast Asia Forum interpreted this broadly 133

134

135

136 137

138

Kim Beng Phar, ‘Asia’s Informal Diplomacy: Track Two Discussion and Regionalism’, 23(1) Harvard International Review (2001) 38. See e.g. Conflict Prevention and Peace-Building in Southeast Asia: Regional Mechanisms, Best Practices and ASEAN-UN Cooperation in the 21st Century, Manila, the Philippines, 19–22 February 2002, at www.aseansec.org/un_manila.htm. Dewi Fortuna Anwar, ‘Human Security: An Intractable Problem in Asia’, in Alagappa (ed.), supra note 25, 530 at 538 and 540–2. Proceedings and documents of AICOHR meetings on hand with author. See e.g., 14th AICOHR: A Regional Human Rights Mechanism as an Imperative for Building an ASEAN Security Community, Manila, 4–5 May 2007. Supra note 57.

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to include human security priorities such as the need to tackle socioeconomic problems that globalisation and the then-Asian financial crisis had created, the scourge of human trafficking and exploitation of illegal migrants, HIV/AIDS, and environmental degradation.139 Among these suggestions was the call for the civil society to be involved in regional issues.140 As momentum for a Track 3 forum grew within the ASEAN-ISIS, the latter mooted the idea of an ASEAN People’s Assembly (APA) where regional NGOs could come together to propose suggestions to ASEAN. The objectives of APA were to bring about greater awareness and cohesiveness in the building of the ASEAN Community so as to bring in alternative views from civil society on how regional human insecurities could be managed.141 Understandably, the suggestion of civil society involvement through APA was not welcomed by the ASEAN states that were used to their exclusive elite grouping. APA finally got off the ground with its first meeting in Indonesia in 2000.142 The issues raised included the positive and negative effects of globalisation, poverty, environmental management, the human rights violations in Myanmar and East Timor, female empowerment, and the possibility of establishing a human rights mechanism.143 Subsequent APA meetings debated issues such as terrorism, peace and social conflict, media and press freedom in Southeast Asia, democratisation in Southeast Asia, labour migration, humanitarian intervention, human development and poverty, and security sector reform.144 Although APA was criticised as a forum of discordant voices without a common purpose, or just another platform for the ASEAN-ISIS initiatives, a ‘multi-sectoral regional mechanism . . . comprising different actors who were finding their relevant niches in and contribution to regional society’ could be seen emerging.145 Joining these initiatives was the ASEAN Inter-Parliamentary Assembly (AIPA) that was formed in 1977.146 It comprises the respective legislatures and the parliamentarians of the ASEAN member states.147 Coming 139

140 142 144

145 146 147

A list of the topics discussed at the Forum can be found at www.jcie.or.jp/drm/Feb99/ track2.html. 141 Ibid. Caballero-Anthony, supra note 18, at 240. 143 Ibid., at 242. Ibid., at 243. 5th ASEAN People’s Assembly, Manila, the Philippines, 8–10 December 2006 at www. asean-isis-aseanpeoplesassembly.net. Caballero-Anthony, supra note 18, at 245. ASEAN Inter-Parliamentary Assembly (AIPA) at www.aipasecretariat.org. AIPA was originally called the ASEAN Inter-Parliamentary Organisation (AIPO) from 1977–2007.

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up with the Kuala Lumpur Declaration in 1993,148 its recent meeting discussed the harmonisation of domestic legislation to tackle piracy, transnational crime, and human trafficking, as well as measures to safeguard energy security, the environment, and the rights and protections for migrant workers, women, and children.149 It takes time and effort to gain the trust of ASEAN states to make any headway in contributing non-state proposals in the region. While independent Track 3 efforts have also been encouraging, progress (or the lack thereof) must be viewed with patience because of the complexities of the ASEAN environment. Track 3 organisations seldom get the chance to interact directly with official Track 1 bodies. Nonetheless, NGOs such as Forum Asia,150 Focus on the Global South,151 and Third World Network,152 have gained recognition; they have been invited to add diversity to Track 2 discussions such as at AICOHR. However, one Track 3 organisation in particular – the Working Group for an ASEAN Human Rights Mechanism – has had certain success in engaging ASEAN on human rights.153 Starting out as an NGO with the aim of lobbying for a regional mechanism, it has gained so much standing within ASEAN that the latter expressly states that the Working Group is to help facilitate the setting up of the regional mechanism. To that effect, ASEAN acknowledged that the Working Group was an official stakeholder in the ASEAN community-building process.154 To date, the Working Group remains the sole human rights NGO accredited by ASEAN. Through the years, the Working Group appears to have been transformed from a Track 3 to an ‘implicit’ Track 2 body which has more participation with Track 1 officials.155 By analysing the proposals put forth by the Working Group, it can be seen that these have been co-opted almost wholesale into ASEAN declarations and agreements. It can be assumed with a high degree of certainty that the Working Group has 148 149

150

151 152 153 154 155

Kuala Lumpur Declaration, supra note 35. 28th ASEAN Inter-Parliamentary Assembly, Kuala Lumpur, Malaysia, 18–24 August 2007, at www.aipamalaysia.org/agenda.htm. Asian Forum for Human Rights and Development (FORUM-ASIA) at www.forum-asia. org. Focus on the Global South at www.focusweb.org. Third World Network at www.twnside.org.sg. Working Group for an ASEAN Human Rights Mechanism at www.aseanhrmech.org. ASEAN Charter, supra note 90, Annex 2, Part V. Carlos Medina, Secretary-General of the Working Group for an ASEAN Human Rights Mechanism, in his presentation, The Role of Track Two in Human Rights Promotion in the ASEAN Security Community, at the 13th AICOHR, Manila, the Philippines, 15–16 May 2006.

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influenced the ASEAN construct of human rights to a very high degree. This achievement was not gained overnight but through years of sustained engagement with individual ASEAN states and collectively with the regional grouping. The Working Group has also seen its fair share of setbacks, rejections, and revisions of its own agenda to arrive at its present status of stakeholder. Given the substantial influence the Working Group has had in moulding the ASEAN vision of human rights, and the establishment of a regional mechanism, I would like to focus on the Working Group’s efforts in the following section. This will show first, that ASEAN is not impervious to external recommendations on human rights; second, the reasons behind the metamorphosis of ASEAN’s primary security agenda to include human rights; and third, a discussion of what NGOs like the Working Group ought to do when AICHR is fully operational.

Consolidation of the Working Group’s initiatives with that of the VAP The advent of the Working Group in 1995 was a turning point in the relationship between human rights and ASEAN. Formed by a group of lawyers, academics, parliamentarians, and NGO representatives,156 to pursue the realisation of the regional human rights mechanism broached by ASEAN in 1993,157 it was the first human rights NGO from within the ASEAN region that proactively worked towards the establishment of an ASEAN human rights mechanism. In this respect, the Working Group was the forerunner in testing ASEAN receptivity to human rights. The confidence-building process was painstaking. Suspicious of the Working Group’s agenda, ASEAN states initially sent junior officials without human rights experience to engage with the Working Group.158 With warming relations and greater trust, ASEAN foreign ministers for 156

157

Supra note 153. The Working Group’s founding members include Carlos Medina, incumbent Secretary-General of the Working Group and Executive Director of the Ateneo Human Rights Center at the Ateneo de Manila University; Vitit Muntarbhorn, Professor of Law at Chulalongkorn University and UN Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea; and Marzuki Darusman, former Attorney-General of Indonesia and current UN Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea. Darusman has also led the independent UN investigation into the assassination of former Pakistani Prime Minister Benazir Bhutto and will lead the UN panel on investigating the alleged war crimes committed in Sri Lanka during the civil war. 158 Supra note 55. Author’s sources.

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the first time publicly commended the Working Group at the 31st ASEAN Ministerial Meeting (AMM) in 1998 and continued to do so thereafter.159 In 2000, ASEAN states expressly supported the participation by senior officials in discussions with the Working Group.160 Despite these milestones, these discussions did not yield substantive results until 2001. The pace for reform quickened and more concrete proposals were tabled that year onwards when the four national human rights commissions in ASEAN – Indonesia, Malaysia, the Philippines, and Thailand – cooperated with their foreign ministries and the Working Group to host annual conferences to discuss the ways in which an ASEAN human rights mechanism could be set up.161 The first Workshop for an ASEAN Regional Mechanism on Human Rights, co-hosted by the Indonesian Foreign Affairs Department, the Indonesian National Human Rights Commission (Komnas HAM), and the Working Group, was held in July 2001.162 In this meeting, a list of extraordinarily bold suggestions (when compared against ASEAN’s conservative outlook on human rights) that emulated the supranational structure of the European human rights model was proposed.163 The Working Group proposed that the ASEAN human rights mechanism could model itself on any of the seven options, namely: (1) (2) (3) (4)

an ASEAN Human Rights Commission; an ASEAN Human Rights Court; a Commission and a Court; a Commission and an ASEAN Human Rights Committee of Ministers or Assembly of Head of Governments; (5) a Commission, Court, and Committee of Ministers or Assembly of Head of Governments; 159

160

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Joint Communique´ of the 31st ASEAN Ministerial Meeting, Manila, Philippines, 24–5 July 1998, para. 28. See also supra note 63. Joint Communique´ of the 33rd ASEAN Ministerial Meeting, Bangkok, Thailand, 24–5 July 2000, para. 33. As of 2010, 8 Workshops have been hosted in Indonesia, Malaysia, the Philippines, Thailand, and Singapore. As Singapore does not have an NHRI, the Workshop was hosted by the Working Group, Singapore Ministry of Foreign Affairs, MARUAH and the Singapore Institute of International Affairs in 2008. See Conferences, Workshops, and Missions, at www.aseanhrmech.org/conferences/index.html. Working Group for an ASEAN Human Rights Mechanism, 1st Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Jakarta, Indonesia, 5–6 July 2001. For a comparison of other international and regional human rights mechanisms, see Chapter 2.

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(6) the establishment of National Human Rights Commissions and a formal network of their activities; or (7) the promotion of regional human rights activities with the end goal of establishing a Commission.164 Unsurprisingly, the response was muted as the proposition of such intense ‘Western-style’ scrutiny was at odds with the ASEAN Way. The realisation that these suggestions might have been too much, too soon, the Working Group scaled back on its expressed ambitions at the next Workshop in the Philippines.165 Changing tack, the Working Group took on the softer approach welcomed by ASEAN by propounding plans of continued dialogue and cooperation among members states, national human rights institutions (NHRIs), ASEAN-ISIS, and other civil society groups toward the establishment of a regional human rights commission.166 It also proposed that national working groups be created in all ASEAN states such that there would be better coordination towards the goal of establishing a regional mechanism.167 Instead of supranational scrutiny, human rights development in ASEAN was slated to arise from internal change and through domestic institutions.168 The third Workshop, held in Thailand in 2003, furthered this conciliatory stance.169 Presenting his ‘Roadmap for an ASEAN Human Rights Mechanism’, Muntarbhorn reviewed means by which incremental steps towards an ASEAN human rights mechanism could be taken.170 He noted the developments and efforts towards the institution of the ASEAN human rights mechanism and advocated that, instead of an immediate establishment of an adjudicative-adversarial machinery, the mechanism could be an ASEAN human rights commission that possessed recommendatory and investigative powers.171 The Commission would come into being when a minimum of three ASEAN states had ratified the treaty establishing the Commission.172 Moreover, 164 165

166 169

170

171

Working Group, 1st Workshop Proceedings, para. 12(l). Working Group for an ASEAN Human Rights Mechanism, 2nd Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Manila, the Philippines, 14–15 June 2002. 167 168 Ibid., para. 31. Ibid., para. 32. Ibid., para. 17. Working Group for an ASEAN Human Rights Mechanism, 3rd Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Bangkok, Thailand, 28–9 May 2003. Vitit Muntarbhorn, Roadmap for an ASEAN Human Rights Mechanism, 28–9 May 2003, at www.fnnote org.ph/liberallibrary/roadmap.htm. 172 Ibid. Ibid.

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the Commission was propounded to be a means of last resort when domestic remedies were exhausted.173 Acknowledging ASEAN’s trepidation about adopting a regional human rights mechanism, Muntarbhorn also offered practical ways by which to circumvent political inaction while simultaneously furthering the long-term goal of having a regional rights body. These included the review of human rights policies and functional cooperation within ASEAN to identify the next steps of regional cooperation for the advancement of regional human rights.174 It was also agreed at this meeting that a ‘step-by-step, multi-track approach towards a regional human rights mechanism in line with ASEAN Vision 2020 and ASEAN Plans of Action’ would be helpful in boosting support for a regional mechanism. In addition, the involvement of the UN and other international agencies would prevent disparate action and assist in streamlining the human rights-building process. The suggestions of having an Eminent Persons Group and a focal point within ASEAN regarding regional human rights to spearhead the process were also mooted.175 Other practical steps focused on the domestic level – the improvement of the synergy among the NHRIs of Indonesia, Malaysia, the Philippines, and Thailand, spearheading human rights public education, creating more NHRIs, national working groups, and national human rights plans of actions.176 Most notably, Muntarbhorn stressed that as the establishment of a regional human rights commission was important and as ASEAN states were party to the CEDAW and CRC, he suggested that the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children could be established first since ASEAN cooperation on women and children’s issues were already underway.177 This thematic commission would then act as a precursor of an overall ASEAN commission on human rights.178 While the fourth Workshop in Indonesia covered similar ground pertaining to the stocktaking of efforts towards an ASEAN Human Rights Mechanism, the meeting did not run through the whole gamut of potential measures that could be taken to build a regional mechanism.179 Rather, the participants raised the novel suggestion of having the ASEAN Security Community commit itself to regional 173 179

174 175 176 177 178 Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Working Group for an ASEAN Human Rights Mechanism, 4th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Jakarta, Indonesia, 17–18 June 2004.

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human rights,180 the protection of vulnerable groups was enlarged to encompass migrant workers as well as women and children,181 and mooted plausible avenues for human rights education.182 The meeting concluded with several recommendations for ASEAN governments to strengthen the domestic foundational structures necessary for a human rights mechanism to function.183 What was notable about the 2004 meeting was that it set the groundwork for building a regional mechanism by setting in place clear timeframes in which the progression of work should materialise. This moved the topic of an ASEAN human rights mechanism beyond the merely aspirational stage to one which would become reality in the future. In the short term, the plans included the follow-up of ASEAN Vision 2020 and its accompanying plans of action, as well as the exchange of human rights information and best practices among the states. Medium term plans called for arrangements for the rights of women and children, and also for migrant workers. In the long term, the establishment of national human rights commissions was to be worked towards, while on the regional level an ASEAN Charter entrenching the rights and obligations of the people was desirable.184 Regarding the impact that these Working Group-organised discussions had on ASEAN and human rights, it was probably more than a coincidence that when the VAP was revealed in November 2004, it enunciated practically verbatim the points of discussion from the 2004 Workshop.185 In July 2005, the same themes were reiterated when the Working Group discussed with ASEAN senior officials how to implement the VAP.186 ASEAN gave a positive response and offered the Working Group ‘the opportunity to provide its expertise and services towards the implementation of the VAP’s human rights provisions, in particular, the establishment of an ASEAN Commission Promoting and Protecting the Rights of Women and Children, elaboration of an instrument that promotes the rights of migrant workers, the promotion of education and public awareness on human rights, and networking 180 181 183

184 185

186

Ibid., paras. 5 and 13. 182 Ibid., paras. 7, 11, 28–9, and 31. Ibid., para. 22. 5th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Kuala Lumpur, Malaysia, 29–30 June 2006. Ibid., para. 29. Compare the VAP initiatives for human rights in ASEAN, supra note 72, with the agendas of the Working Group’s Workshops. ‘Working Group and ASEAN to Work Together to Promote Human Rights’, Working Group News Release, 25 July 2005, at www.aseanhrmech.org/news/work-together-topromote-human-rights.html.

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among existing national human rights institutions’.187 The pace quickened later that year when the Working Group engaged the Malaysian Ministry of Foreign Affairs to discuss the VAP’s implementation. Tan Sri Ahmad Fuzi expressed Malaysia’s continued support of the future creation of an ASEAN human rights commission, reiterating that Malaysia had supported this proposal since plans for building the ASEAN Security Community began. The Working Group queried whether ASEAN could fund the implementation of the human rights provisions of the VAP, particularly the establishment of a commission on women and children, elaboration of an ASEAN instrument on migrant workers, and the promotion of education and public awareness on human rights in the region. The Malaysian Foreign Ministry responded that there was insufficient money in the ASEAN Development Fund.188 In December 2005, the Working Group approached the Indonesian Department of Foreign Affairs to follow-up on the human rights aspects of the VAP. Again, the issues raised pertained to human rights public education, the need for a commission for women and children, the protection of migrant workers’ rights, and the importance of having national human rights plans of action in every ASEAN state to facilitate closer regional cooperation, as well as the need for detailed analyses of human rights in every member state, and the necessity to engage the Eminent Persons Group for an ASEAN Charter to take note of human rights concerns. The agenda also discussed the possibility of the establishment of an ASEAN commission on women’s and children’s rights.189 The Sixth Workshop in 2006 was quite nondescript. It continued to discuss more practical aspects of the proposed ASEAN human rights mechanism.190 In particular, questions on the potential formation of the ASEAN commission on the rights of women and children were raised – whether ASEAN was ready for this commitment and the type of structure the commission should take. In addition, the founding document for the establishment of such a commission, the types of rights to be 187 188

189

190

Ibid. ‘Malaysian Ministry of Foreign Affairs Extends Support to Working Group’, Working Group News Release, 17 November 2005, at www.aseanhrmech.org/nwgs/malaysia/ malaysian-ministry-of-foreign-affiars.html. Roundtable on the Vientiane Action Programme: Proceedings, Bali, Indonesia, 19–20 December 2005. Working Group for an ASEAN Human Rights Mechanism, 6th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Bali, Indonesia, 16–17 July 2006.

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protected, mandate, and funding were also panelled.191 ASEAN’s commitment to the rights of migrant workers was similarly tabled, as were the plans for regional human rights public education.192 Special commendation was also given to the functional networking efforts of the four existing national human rights commissions, as well as the ongoing efforts to form one in Cambodia. The network of national commissions was exhorted to adopt a ‘more inclusive approach’ so as to enable ASEAN states without national commissions to participate, hence learning from their best practices and expertise.193 After the ASEAN Charter was signed, the Workshops took on a more proactive stand in trying to flesh out the qualities, functions, and powers the ASEAN Human Rights Body as enunciated in Article 14 would have. The Seventh Workshop in 2008, held for the first time in Singapore, opened with a strong, cautionary yet hopeful note on the future establishment of the regional human rights institution.194 Raymond Lim, Singapore’s minister for transport and the second minister for foreign affairs, in his keynote address,195 stated: First, any new ASEAN institution must have the support of all ten member states. To do so, it must recognise the complex history of our region, the diversity of political systems in ASEAN and the realities that this imposes on ASEAN in all fields. This does not mean that we should lack ambition. But our policies must take cognisance of ASEAN’s established traditions and procedures. Second, advancing the human rights agenda within ASEAN will best be achieved through an evolutionary approach. The fact is that while universality is an ideal that we must aspire to, the interpretation of most rights is still essentially contested concepts. A few years ago, it would have been difficult to imagine that ASEAN would commit itself to establishing a human rights body of any kind. But we have clearly moved ahead. Perceptions and policies towards human rights in ASEAN countries will continue to develop over time. So we should allow the functions of this human rights body to evolve. Too much ambition can as easily scuttle this important project as too little. Third, we must not set artificial deadlines for the creation of a new institution or create an institution simply to be able to say that we have 191 194

195

192 193 Ibid., para. 8. Ibid., paras. 10–11. Ibid., paras. 23–5. Working Group for an ASEAN Human Rights Mechanism, 7th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Singapore, 12–13 June 2008. Raymond Lim, Singapore Minister for Transport and the Second Minister for Foreign Affairs, Keynote Address at the 7th Workshop on the ASEAN Regional Mechanism on Human Rights, Singapore, 12 June 2008, at www.iseas.edu.sg/aseanstudiescentre/ascp8– 08.pdf.

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instituting the regional rights regime established one. We must ensure that this ASEAN human rights body is credible and meaningful to its members. We must be realistic. However, a direction has been set from which there is no turning back. Thus, as we feel our way forward, realism and the need to establish consensus should not be an excuse for inaction. An important responsibility has been placed on ASEAN and we should not be found wanting.196

To this, human rights and civil society proponents argued strongly that human rights would always hold political ramifications, that the proposed human rights body should be independent and have the powers to investigate and report, and ASEAN states should not view this as interference in their domestic matters.197 Other NGO participants called for the establishment of a human rights council and court within the ASEAN human rights mechanism, that there should always be open consultation with civil society, and that ASEAN allowed space for the review and amendment of powers of the human rights body in a positive and progressive manner.198 These points were repeated in the Eighth Workshop,199 which also urged the further development of the ACWC and the ACMW and their alignment within the overall ASEAN human rights structure.200 In these workshops, it is noticeable how the Working Group has streamlined its proposals from the more ideological in 2001, to take on more practical aspects in subsequent years. These measures respect ASEAN exigencies and modus operandi while simultaneously taking firm steps towards advancing regional human rights. This marks a departure from the more ambitious proposals submitted in the earlier years. In 2002, Simon Tay commented on the Working Group’s initial proposals for an ASEAN human rights mechanism.201 He cautioned against the wholesale imitation of the European system as it would be counterproductive. Tay felt that drastic implementation in giving the proposed ASEAN Human Rights Commission far-reaching powers akin to those 196 197

198 199

200 201

Ibid., paras. 6–8. Per Dato’ Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers. See Working Group, 7th Workshop Proceedings, supra note 194, para. 8. Ibid., paras. 11 and 25. Working Group for an ASEAN Human Rights Mechanism, 8th Workshop on the ASEAN Regional Mechanism on Human Rights: Summary of Proceedings, Bangkok, Thailand, 14–15 July 2009. Ibid., para. 32. Simon S. C. Tay, Comparing Apples with Mangoes and Durian: Human Rights Systems in Europe and Southeast Asia, paper presented at the Human Rights Conference, Manila, the Philippines, 12–15 June 2002.

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of the European Commission of Human Rights would be inimical with the institutional norms of ASEAN – principles like non-intervention, dialogue and consensus, and peaceful co-existence. Moreover, given the ASEAN ‘preference for officials in each member state to control the inter-state process by a network of meetings and dialogues’ rather than vesting powers in a supra-national body, ASEAN would never acquiesce to such an intrusion readily.202 Therefore, the Working Group’s change of tack in taking intermediate steps towards the goal of realising an ASEAN human rights mechanism has merited much, albeit qualified, success. ‘Soft’ engagement approaches have obviously disposed it more amenably to ASEAN member states as national sovereignty is less affronted. Moreover, by promoting a less adversarial form of an ASEAN Human Rights Commission has enabled the Working Group to influence ASEAN human rights initiatives to a large extent. The ASEAN proposals in the VAP, TOR, and the two Blueprints detailing plans to take stock of existing human rights mechanisms, the establishment of a network among such mechanisms, conducting human rights public education, and taking further steps towards the rights of migrant workers, women, and children, mirror the Working Group’s proposals sustained through the years. This is probably more than a mere coincidence and could be taken as evidence that persistent amicable dialogue in a consultative manner, yet that is bold enough to challenge boundaries, bears fruit in the ASEAN context. Nonetheless, it would be naı¨ve to over-emphasise the openness ASEAN has towards external human rights proposals. The Working Group is only one human rights NGO among many others existing in ASEAN, yet it is the sole organisation that ASEAN has formally acknowledged as a stakeholder in the regional human rights building process despite ASEAN’s declarations that there would be more open consultation on AICHR’s development with civil society. Moreover, for the time being and the foreseeable future, ASEAN will still act as a grouping of sovereign states – the drafting of the TOR and selection of AICHR representatives were largely not transparent or consultative. Even when civil society tabled their input, insisting on independence, powers of enforcement and investigation, and the inclusion of international law, these proposals were not taken discussed, much less taken onboard.203 ASEAN, in drafting the TOR and the two Blueprints, included what it 202

Ibid., at 10–11.

203

Tan, supra note 7.

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felt expedient for its purposes – and that included ensuring that the terms enunciated for AICHR were amenable enough so that the lesssupportive ASEAN states would agree to AICHR’s establishment. Hence the impact that the Working Group would or could have on AICHR in the future remains to be seen. One thing is certain, however, that given the good standing and trust the Working Group has with ASEAN, it should continually urge AICHR to promote and protect human rights consistent with international standards. It is also necessary that other NGOs hold ASEAN to its promise of open engagement and use these opportunities wisely to further develop AICHR.

The next phase: regional human rights transformation through AICHR Even if AICHR for the time being hits below the mark, the manner in which human rights has progressed in ASEAN has undeniably been quite remarkable. From being perceived as a ‘Western’ concept that was unwelcome on the ASEAN agenda, human rights have gone through a long and difficult process to be recognised as universal and placed alongside ASEAN’s professed priorities of regional political development and democracy as well as actually being worked into policy. If human rights and democracy are seen as intrinsic to the safeguarding of regional peace and security, we might expect greater commitment to these principles over time as AICHR develops and human rights consciousness grows within ASEAN. In the short term, AICHR is supposed to take stock of existing human rights initiatives in ASEAN, build information networks, carry out two thematic studies on (1) business and human rights and (2) migration, and draft the ASEAN Declaration of Human Rights to enunciate the specific protections for all ASEAN peoples.204 As a first step, the task to finally realise the proposals mooted in the VAP, Working Group Workshops, and the Blueprints on the matter of increasing information networks and linkages of national systems is very welcome as it is long overdue. This mapping exercise of collating all the possible informal regional human rights tools and the ASEAN documents on human rights and human rights-related issues, although basic and perhaps somewhat obvious, is a very important part of strengthening AICHR as there is a dearth of this information in the region. Country records of 204

See above at 15, supra note 109.

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human rights published by the state or regional bodies are rare, especially when compared with the regularly updated and comprehensive reports by the US State Department, Amnesty International, and Human Rights Watch – all of which are the more commonly available resources at present. As there is a general lack of knowledge of the human rights issues and methodologies used to rectify rights violations, there is naturally a severe lack of sharing of best practices among and within ASEAN states. Regional cooperation is further exacerbated by administrative and resource constraints such as language barriers and difficulties in accessing websites and obtaining up-to-date information. Even the specialised bodies most in need of such fundamental support, the four national human rights commissions, also experience these difficulties. To counter the problem, Komnas HAM of Indonesia, SUHAKAM of Malaysia, the Commission on Human Rights of the Philippines (CHRP), and the National Human Rights Commission of Thailand (NHRCT), signed a Declaration of Cooperation to jointly formulate strategies for the exchange of information and best practices so as to better promote and protect human rights.205 The other immediate task for AICHR is to draft the ASEAN Declaration on Human Rights. It must be noted that this document, like all the other ASEAN human rights documents, have only declaratory status. I.e. they are soft law, are not binding, and have only recommendatory effect.206 Be that as it may, given that AICHR has promised to 205

206

Declaration of Cooperation by National Human Rights Institutions of Indonesia, Malaysia, Philippines, and Thailand, Bali, Indonesia, 28 June 2007. See also Position Paper of the National Human Rights Institutions of Indonesia, Malaysia, Philippines, and Thailand on Human Rights Aspects of the ASEAN Charter, Bali, Indonesia, 26 June 2007. ASEAN has not generated much law apart from its founding treaty – the Bangkok Declaration, the ASEAN Charter, and some economic and security agreements. For the most part, the status of many ASEAN agreements is unclear. Termed agreements, declarations, treaties, memoranda of understanding, etc., the names of these documents is not indicative of the extent of the binding nature of the text within. I.e. some treaties act more like soft law, while some declarations (e.g., the Bangkok Declaration) have the nature of treaties. There is currently a major project undertaken by the Centre for International Law, National University of Singapore, to map the ASEAN agreements and investigate their legal nature, status, and level of state adherence to find out the extent to which the rule of law exists in ASEAN and the degree to which international law is being generated in the region, bringing about integration through the law, at http://cil.nus.edu.sg/research-projects/asean. See also Simon Chesterman, ‘Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person’, 12 Singapore Year Book of International Law (2008) 199; Eugene Tan, ‘The ASEAN Charter as “Legs to Go Places”: Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia’, 12 Singapore Year Book of International Law (2008) 171.

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look into ASEAN and international human rights documents to ensure the proper promotion and protection of human rights in the region,207 it is important for AICHR to incorporate as much international human rights law from the nine core human rights treaties as possible.208 To ensure the highest standards within the regional limitations, nonratification of these treaties should not preclude the inclusion of the particular provisions which ASEAN states are amenable to from these international conventions. Moreover, it should not be the case that the regional human rights mechanism holds ASEAN member states to varying standards according to the international human rights treaties that they have signed. Neither should it be the case that AICHR permits a lowering of standards in the region, to hold ASEAN member states to the ‘lowest common denominator’ of human rights that they agree upon. AICHR should, insofar as is possible, ensure that international standards are set and practised, and not allow misguided interpretations of the ASEAN Way or ‘Asian values’ which contradict the dictates of natural justice and universal human rights to prevail. In the longer term as AICHR progresses and a human rights culture develops in ASEAN, one can be confident that AICHR would eventually become stronger. As was seen in Chapters 2 and 3, once human rights institutions are established and societies develop, human rights progress, however slow, always moves relentlessly forwards along with the peoples’ 207 208

TOR, supra note 10, para. 1.6. These treaties are: International Convention on the Elimination of All Forms of Racial Discrimination (CERD), GA Res. 2106 (XX), Annex, UN Doc. A/6014 (1966), 21 December 1965 (entry into force 4 January 1969); International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200A (XXI), UN Doc. A/6316 (1966), 16 December 1966 (entry into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights (ICESCR), GA Res. 2200A (XXI), UN Doc. A/6316 (1966), 16 December 1966 (entry into force 3 January 1976); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), GA Res. 34/180, UN Doc. A/34/46 (1979), 18 December 1979 (entry into force 3 September 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), GA Res. 39/46, UN Doc. A/39/51 (1984), 10 December 1984 (entry into force 26 June 1987); Convention on the Rights of the Child (CRC), GA Res. 44/25, Annex, UN Doc. A/44/49 (1989), 20 November 1989 (entry into force 2 September 1990); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), GA Res. 45/158, Annex, UN Doc. A/45/49 (1990), 18 December 1990 (entry into force 1 July 2003); International Convention for the Protection of All Persons from Enforced Disappearance, GA Res. 61/177, UN Doc. A/RES/61/177 (2006), 20 December 2006; International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CPD), GA Res. 61/106, Annex I, UN Doc. A/61/49 (2006), 13 December 2006 (entry into force 3 May 2008). More information on the international human rights treaties and the treaty bodies at www.ohchr.org/english/law/index.htm.

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desire to exercise their rights. Therefore, AICHR ought to be bold in carrying out its mandate and act decisively and creatively in interpreting the TOR and executing the Blueprints. Since it is a mammoth task to build the regional human rights mechanism and AICHR representatives face limited resources and expertise, the Working Group, civil society at large, and NHRIs would do well to engage, propose, and push the human rights development process in a positive direction. For ASEAN states without NHRIs, civil societies must work harder with the national AICHR representative to achieve the necessary promotion and protection of human rights. On its part, AICHR representatives should be open to such direct engagement and be responsible for the peoples’ human rights and not see themselves as adjutants for ASEAN states’ interests. To further deepen the impact that AICHR would have on national societies in ASEAN, AICHR initiatives might work better in the four states with NHRIs. For seamless coordination of regional and national human rights programmes, AICHR should heed the NHRIs’ position that: The Commission should work in partnership with such NHRIs, particularly in monitoring human rights situation and treaty compliance at the national level. In addition, the Commission should coordinate with and involve the NHRIs in its activities at the national level.209

With every five-year review of AICHR, civil society should, in keeping with their ideal that an ASEAN regional mechanism for human rights meets international standards, keep petitioning for investigation and enforcement powers to be added to AICHR’s mandate.210 As the human rights culture develops domestically and regionally, it is not unforeseeable that such competences be added in due course. Furthermore, even while ASEAN member states insist that AICHR’s modalities suit regional exigencies, human rights stakeholders in ASEAN should persist in proposing that AICHR develops into a system comparable to the three other regional human rights institutions, complete with a human rights convention, commission, and court.211 This would entail the formalisation of the ASEAN Declaration on Human Rights into the ASEAN Convention on Human Rights, the ASEAN Intergovernmental 209

210 211

ASEAN NHRI Forum, Position Paper on the Terms of Reference of the ASEAN Human Rights Body, 20 March 2009. TOR, supra note 10, para. 9.6. MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism), Position Paper on the Proposed ASEAN Human Rights Body, 9 September 2008.

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Commission on Human Rights into the ASEAN Commission on Human Rights, and the establishment of the ASEAN Court of Human Rights such that international human rights law is firmly established within ASEAN. When that occurs, the institutional transformation of a largely political and soft legal process pertaining to human rights into positive hard law with concomitant enforcement effects would be complete in ASEAN.

5 Human rights understanding between the ASEAN region and the United Nations: convergence, regional cohesion, and national responsibility Introduction In the previous two chapters, we saw that the thawing attitude towards human rights in the Association of Southeast Asian Nations (ASEAN) was gained through persistent persuasion by the Working Group for an ASEAN Human Rights Mechanism (‘Working Group’). Other important factors like the growth of a more vibrant civil society as well as the widening of public awareness also provided the concomitant impetus for states to realise that necessary space within society must be given to political, media, and information freedom over and above the emphasis on socio-economic rights. Even as ASEAN becomes more accepting of human rights, building the ASEAN Intergovernmental Commission on Human Rights (AICHR) into a fully fledged regional mechanism is yet to be fully welcomed by its member states. To improve this situation, United Nations (UN) support would be very valuable. While the process to establish a human rights mechanism moved at the ASEAN level from the 1990s, another phenomenon at the international level was observed. In this chapter, we discover that, although AICHR for the time being does not meet international thresholds for promoting and protecting human rights, the gap has closed considerably between ASEAN human rights milestones and the programmes initiated by the UN Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region (‘UN Regional Arrangements for the Asia-Pacific’).1 It may be observed that the similarity in wording and in the type of measures proposed to advance human rights 1

See e.g., Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, UN Doc. A/RES/41/153 (1986); Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, UN Doc. A/RES/43/140 (1988); Boutros Boutros-Ghali, Regional Arrangements for the Promotion and Protection of Human Rights: Report of the Secretary-General, UN Doc. A/51/480 (1996).

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may exemplify a closer common understanding of universal human rights enshrined in international law. No longer is the duality or duplicity of various types of human rights – for instance, an ‘Eastern’ or a ‘Western’ notion – tenable. In most respects, evidence shows that ASEAN and the UN Regional Arrangements for the Asia-Pacific are gradually forging a closer path, albeit with differences and difficulties. This may surprise many, including the ASEAN states themselves, because such similarities have not been previously recorded. Whether or not this can be attributed to the conscientious efforts of the Working Group or unconsciously transposed from the UN meetings to those at the ASEAN level, and vice versa, it is helpful to see that the direction that ASEAN is moving on human rights is not diverging from general international currents, and greater emphasis is given to how the UN offices can facilitate more actively in upholding human rights in ASEAN. In time, greater standards as set by the global human rights framework could eventually emerge. The first part of this chapter will trace the convergent paths of ASEAN initiatives with those of the UN Regional Arrangements for Asia-Pacific and culminate with an examination of the proceedings of the ASEANlevel First Regional Conference on Building Networks to Strengthen ASEAN Human Rights Cooperation in April 2006 (‘First Regional Conference on Building Networks’).2 This meeting is of special importance as it goes a step further than previous ASEAN–UN meetings that concentrated merely on engagement. Not only was this the first time the four national human rights institutions (NHRIs) in the ASEAN region came together to discuss tackling the regional human rights problems, it also marked the modality change as participating states and the UN discussed suitable practical measures for the achievement of human rights. Programmes and policies for human rights development have no positive effect unless the ASEAN peoples experience them in their national societies. Therefore, the second part of the chapter will examine how domestic measures can heighten this actual impact of human rights. This will encompass the related issues of the rightful roles and duties of NHRIs, how they can be made more effective given their relationship with the state, civil society, and the UN, as well as how states can be encouraged to establish NHRIs. Given also the united emphasis for 2

First Regional Conference on Building Networks to Strengthen ASEAN Human Rights Cooperation: Summary of Proceedings, Manila, Philippines, 3–6 April 2006.

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human rights education and increased public awareness, the means and methods through foreign non-governmental organisations (NGOs) and local civil society groups, NHRIs, and other mechanisms shall be looked into. It will be seen that human rights education covers many levels. It goes beyond general knowledge of the treaties and laws, into the actual empowerment of people such that they have recourse to remedies if violations occur. Moreover, it is not limited to the school curriculum or the young but necessitates the training of official personnel such as the police and judiciary and those who are meant to equip the general population with human rights awareness. Finally, the chapter will conclude with suggestions of how these regional plans can be bolstered by individual country action like NHRIs, national human rights plans of action, and public education.

Convergence of UN and ASEAN agendas on human rights issues International meetings of the UN If we look back at Chapter 2, the disparity between ‘Eastern’ and ‘Western’ notions of human rights appeared to be insurmountable during the 1990s. States were coming up with many models of human rights based on regional and cultural particularities rather than adhering to a universal prototype with justifiable modifications. The tide appears to have turned with the growth of the development discourse and increased emphasis on human security at the UN level. There has been noticeable convergence in the understanding of human rights prompted by the dominant (Western) rights discourse being more accepting of the developing world’s concerns. In the 1993 Bangkok Declaration, ASEAN states echoed the general Asian position that the principles of national sovereignty, territorial integrity, and non-interference in internal affairs must continue to hold even with the onset of human rights.3 When exploring how regional arrangements for human rights could be established in Asia, it was insisted that this would be best left to the states’ discretion.4 Moreover, to prevent perceived subjugation or hypocritical practices in the name of human rights, Asian states declared that double standards were totally unacceptable – any implementation of human rights needed 3

4

Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok Declaration), Bangkok, Thailand, 29 March–3 April 1993, paras. 5 and 13. Ibid., para. 24.

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consultation and respect of other political systems and cultures. There was not to be any confrontation or imposition of incompatible values.5 Moreover, development assistance was not to be conditional upon human rights standards.6 With a strong preference for economic, social, and cultural rights, the Bangkok Declaration also reiterated the indivisibility between such rights and civil-political rights, and that democracy without development was meaningless.7 Although the terms in the Bangkok Declaration could be read as a defiant gesture that threatened to stall the Vienna World Conference on Human Rights, things perhaps can be viewed from another perspective. Here, Asian states might not have been trying to pre-empt the onset of human rights; rather, they might have been attempting to make their longstanding human rights concerns known. After all, it was true that poverty hindered the enjoyment of human rights to a large extent, and resolution of the matter lay with macroeconomics and the existing North–South poverty gap.8 Moreover, Asian states had at Bangkok admitted the need to play their part in providing human rights training and education to overcome the lack of public awareness, as well as the necessity to increase the protections of women and children.9 Subsequently, the Vienna Declaration and Programme of Action took into account these Asian concerns.10 Like the Bangkok Declaration, it stated that democracy, development, and respect for human rights were interdependent and mutually reinforcing. It also reaffirmed the right to development, expressing that the human person must be the central subject of development.11 To prevent the abuse of the right to development and other human rights, the Vienna Declaration highlighted that the lack of development could never justify the ‘abridgement of internationally recognised human rights’.12 The Declaration also spelt out definitive measures and responsibilities for developing and developed states such as a holistic programme of national development policies and equitable economic relations at the international level.13 In addition, as poverty was recognised to inhibit the enjoyment of human rights, the international community was called upon to alleviate the external debt burden of developing countries in a bid towards the attainment of 5 8 10

11

6 7 Ibid., paras. 3, 6, and 7. Ibid., para. 4. Ibid., para. 10. 9 Ibid., paras. 17–19. Ibid., paras. 22–3. Vienna Declaration and Programme of Action, 12 July 1993, UN Doc. A/CONF.157/23 (1993) (document resulting from the World Conference on Human Rights, Vienna, 14–25 June 1993). 12 13 Ibid., para. I.8. Ibid., para. I.10. Ibid.

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economic, social, and cultural rights, as well as civil and political rights.14 There was also the recognition that the practice of terrorism and its connections to the international vice trade, such as drug trafficking, destroyed human rights.15 Vulnerable groups such as women, children, and migrant workers were to be actively protected through national measures such as education, health, and social support.16 To strengthen domestic capabilities, the establishment of NHRIs, public education initiatives, training of public officials, and the strengthening of the legal system were strongly encouraged.17 The Vienna Declaration was realistic also in that it admitted the problem of adequate resources to implement the necessary policies.18 Even if the Vienna Declaration sounded like a grudging acquiescence of the concerns of the caucus of developing nations that had been voiced during the formation of the International Bill of Rights after the Second World War, the post-Vienna Declaration years showed an increasing understanding and support for the developing world’s cause.19 Indeed, by the time the Millennium Declaration was inked, it appeared as if the international community had done an about-turn in professing solidarity in achieving the Millennium Development Goals (MDGs).20 In so doing, it seemed that the international community had become more congenial towards the developing world’s priorities, such as the imperative that globalisation be made inclusive and equitable to correspond to the needs of developing economies, and that there was to be a shared responsibility for managing global socio-economic development and peace and security.21 Poverty and the right to development were also forefront on the Millennium Development agenda, as was the crucial increase in economic, social, and cultural rights such as access to food, water, and primary education.22 There was a marked emphasis on minority rights, the rights of women and children and the vulnerable, as well as inclusive political processes to increase the voice of these vulnerable groups.23 There also was a strong stand to combat terrorism, transnational crime, and drug trafficking.24 Good governance at the international and national levels, the rule of law, and transparency in the financial systems were critical to achieving all these aspirations.25 14 16 18 20 21 24

15 Ibid., paras. I.12–14. Ibid., para. I.17. 17 Ibid., paras. I.18–21, II.B.3, and II.B.2.33–5. Ibid., paras. I.36–7 and II.A.9–12. 19 Ibid., paras. II.C and D. See Chapter 2. United Nations Millennium Declaration, GA Res. 55/2, UN Doc. A/RES/55/2 (2000). 22 23 Ibid., paras. 5–6. Ibid., paras. 11and 19. Ibid., paras. 25–6. 25 Ibid., para. 9. Ibid., paras. 13 and 24.

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The emphasis on human rights was further underscored when then UN Secretary-General, Kofi Annan, commissioned the High Level Panel on Threats, Challenges, and Change to study how the UN could be reformed to address contemporary international crises more effectively. The resulting report, ‘A More Secure World: Our Shared Responsibility’, advocated a paradigm shift.26 It put the interests of the human person over and above all other considerations, even traditional bulwarks like state sovereignty and interests were of secondary importance. It also sought to eradicate poverty, seeing it as a threat to international peace and security.27 Shortly after, in March 2005, the follow-up report to the outcome of the Millennium Summit, ‘In Larger Freedom: Towards Development, Security, and Human Rights for All’, again expressed the challenges to world security as rooted in extreme poverty, power imbalances, conflict, and pandemic health threats like HIV/AIDS.28 More pointedly, it declared that ‘development, security and human rights go hand in hand’ as a person who can exercise the democratic vote to choose his leaders is not truly free if ‘on the brink of starvation’; or that even with the basic necessities of life, a person without a voice in how his country is governed lacks essential freedom.29 This report thereby stated in no uncertain terms the necessity of both civil-political rights and socio-economic and developmental rights in procuring the three necessary freedoms – the freedoms from fear and want and the freedom to live in dignity.30 These principles (except for the mitigation of the primacy of sovereignty) reflected the erstwhile priorities of ASEAN and other developing states.

UN meetings in the Asia-Pacific Admittedly, the above propositions have not been enthusiastically accepted by the international community – particularly the calls for reduced primacy of state sovereignty and that socio-economic rights and development are necessary for the full enjoyment of human rights. Nevertheless, the latter direction resembled the original intentions for 26

27

28

29

Report of the UN High-Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565 (2004). Ibid. See also Anne-Marie Slaughter, ‘Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform’, 99(3) American Journal of International Law (2005) 615. Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (2005). 30 Ibid., paras. 14–15. Ibid., sections II–IV.

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human rights enunciated after the Second World War: that civil-political and socio-economic rights were to be indivisible and of equal standing.31 Thankfully, the above avowals have not been relegated to being mere lofty aspirations. They have translated into programmes like the UN Regional Arrangements for the Asia-Pacific, which Asian states, including ASEAN members (in their individual capacities and not as the ASEAN entity), have regularly attended. Many of the initiatives mooted in the Vientiane Action Programme,32 Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights,33 and the ASEAN Political-Security and Socio-Cultural Community Blueprints,34 are similar to the plans outlined in these UN regional meetings.35 Despite the fact that this UN initiative has not fostered a regional mechanism in the Asia-Pacific, the conclusions of these UN meetings coincide and reinforce what ASEAN states wish to achieve as a sub-region.36 Moreover, while human rights initiatives must lead the way in transforming the national societies, they cannot be radical beyond the states’ understanding, capacity, and acceptance lest the whole process is derailed by governments walking away from the discussion table. Therefore, although often overlooked, the UN Asia-Pacific meetings can provide a helpful platform for the countries’ legitimate priorities and concerns. Although the first meeting was held in 1982 in Colombo,37 it was not until the 1996 meeting at Kathmandu that regular annual meetings were scheduled to help realise the goals of strengthening human rights in the Asia-Pacific region.38 The 1997 Amman meeting was a significant turning point as the participating states for the first time agreed 31 32 33

34

35 36

37

38

See Chapter 2. Vientiane Action Programme (VAP), Laos, 29 November 2004. Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (TORAICHR), 20 July 2009. ASEAN Political-Security Community Blueprint, Thailand, 1 March 2009; ASEAN SocioCultural Community Blueprint, Thailand, 1 March 2009. See Chapter 4. It has to be noted that the author thinks that the UN Asia-Pacific discussions may be over-ambitious in scope and territorial area. It is unlikely that an all-encompassing human rights mechanism spanning the Asia-Pacific will ever be realised. In the 2005 meeting in Beijing, the idea that perhaps sub-regional mechanisms could be established instead drew a negative response. David Geddes, National, Local, and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region: Background Paper (Sydney: The Law Association for Asia and the Western Pacific, 1982). Fourth Workshop on Regional Human Rights Arrangements in the Asian and Pacific Region: Report, Kathmandu, 26–8 February 1996 (New York: United Nations, 1996).

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upon some vital working principles. These were that in working towards regional human rights arrangements, a ‘step by step’ and ‘building blocks’ approach must be adopted together with proper consultation with governments.39 Any regional organisation that was proposed to be established ‘must emerge from and directed to the needs and priorities set by governments of the region’.40 These have been the guiding principles of this UN programme ever since and describe the AICHR establishment process accurately. The Amman meeting further initiated certain goals through which human rights could be strengthened in the national setting. These included the development and strengthening of national capacities for human rights promotion and protection; the recommendation of a regional technical cooperation programme to spearhead actual activity; the encouragement of independent NHRIs; and the reaffirmation of indivisible civil, political, economic, social, cultural, and developmental human rights.41 The Tehran meeting in 1998 attempted to substantiate the Amman goals by adopting a framework for regional cooperation to develop the four sectors of: (1) national plans of action to promote and protect human rights and strengthen national capacities; (2) exploring possibilities of human rights education; (3) The establishment of national institutions to advance human rights; and (4) developing strategies to realise economic, social, cultural, and development rights.42 On the more practical aspects, it was also realised that there needed to be an increase in the allocation of resources from UN funds to enable advisory services and technical assistance, as well as the sharing of experience of national practices in human rights education, plans of action, legislative reform, the strengthening of national institutions, the 39

40 42

Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission, Report of the Secretary-General on Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, UN Doc. E/CN.4/1997/44 (1997), paras. 3 and 11. 41 Ibid., Annex, para. 1. Ibid., paras. 2–6. Conclusions of the Sixth Workshop on Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region, Tehran, Iran, 28 February– 2 March 1998, UN Doc. E/CN.4/1998/50 (1998), Annex I.

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ratification of international human rights treaties, technical cooperation, and the provision of remedies for victims.43 While the annual sessions continued discussions in largely the same pattern, more substantive issues with specific goals of developing the four Amman goals were carried out in the inter-sessional workshops. On developing national plans of action for the promotion and protection of human rights and the strengthening of domestic human rights capacities, workshops were held in Bangkok in 1999 and 2001.44 These sought to show how the development and implementation of national human rights plans of action could significantly advance protections in a substantive manner. To achieve their human rights avowals, all governments were thus encouraged to develop such plans of action that respected the indivisibility of human rights and prompt ratification of human rights treaties, the importance of human rights education and training, keeping close tabs on prevailing domestic human rights conditions, and encouraging the participation of civil society.45 The importance of good governance was clearly spelt out, impressing upon countries that real change could only come about through the necessary legislative reforms, rule of law, and the establishment of clear timeframes for systematic progression in human rights protection.46 In particular, as national plans of action embodied governmental commitment to adhere to international human rights, such plans of action were urged to be ‘action-oriented’ and be widely available to the public, or else they would be meaningless.47 With reference to the Southeast Asian region, the Philippines, Indonesia, and Thailand were commended for having plans of action.48 However, given the low profile of these action plans and 43

44

45

46 47

48

Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of the Work of the Commission, UN Doc. E/CN.4/1998/50 (1998). Inter-sessional Workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights in the Asia-Pacific Region, Bangkok, 5–7 July 1999, UN Doc. E/CN.4/1999/94 (1999). Bill Barker, Human Rights International, Ninth Workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region: National Plans of Action for the Promotion and Protection of Human Rights and the Strengthening of National Human Rights Capacities, Bangkok, 28 February–2 March 2001. Ibid. National Plans of Action for the Promotion and Protection of Human Rights at www2. ohchr.org/english/issues/plan_actions/index.htm. Supra note 45.

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the lack of implementation or follow-up, it is uncertain if they are actually effective even if they proliferate.49 As to the need for human rights education, the meeting in Tokyo in 2000 urged that human rights education must reflect and respect a holistic view of the different types of rights, as well as a balance between rights and responsibilities.50 This is reminiscent of the debate during the drafting of the Universal Declaration on Human Rights.51 The Tokyo meeting recognised that ‘participatory, pluralistic, and non-discriminatory human rights education provided a foundation for the realisation of all rights and freedoms for everyone’ and this needed the cooperation of the state agencies such that it could be integrated into all levels of formal education from the elementary to the tertiary levels;52 the training of professionals, especially for those in the offices of civil service and justice administration; policy and legislative reform; and public awareness campaigns.53 Of especial importance to the Asia-Pacific region, the right to development and economic, social and cultural rights were discussed at length in Yemen (2000) and Kuala Lumpur (2001). These concentrated on the right to development and stressed the need for ‘effective policies at the national level, equitable economic relations, and a favourable economic environment at the international level’, as stressed in the Millennium Declaration.54 It was criticised that as the right to development and socio-economic and cultural rights have remained mainly conceptual and theoretical, practical strategies and meaningful public participation by women, civil society, and the private sector were needed. In particular, the ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) was strongly encouraged to boost rights protection.55 The Kuala Lumpur workshop went on to examine the specific impact of globalisation on economic, social, and 49

50

51 54

55

Office of the High Commissioner for Human Rights (OHCHR), Summary of Recommendations Made and Progress Achieved under the Framework on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region (Geneva: OHCHR, 2010), at 10. Inter-sessional Workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights in the Asia-Pacific Region, Tokyo, 17–19 January 2000. 52 53 See Chapter 2. Ibid. Ibid. Conclusions of the Inter-sessional Workshop on Economic, Social and Cultural Rights and the Right to Development in the Asia-Pacific Region, Yemen, 5–7 February 2000. Background Note by the Secretariat: Enhancing National Capacities for the Promotion and Protection of Human Rights in the Asia-Pacific Region, Inter-sessional Workshop on Economic, Social and Cultural Rights and the Right to Development in the Asia-Pacific Region, Yemen, 5–7 February 2000. See also Andre Frankovits, Background Paper, at www.fao.org/righttofood/kc/downloads/vl/docs/Frankovitch_ESCR.doc.

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cultural rights and the right to development. The background paper also warned that ‘increasing social and economic insecurity due to volatility of capital flows, affecting a range of economic and social rights such as the right to an adequate standard of living, the right to work being undermined by movement of large corporations from country to country, limits to collective bargaining due to competitive global environment’. This meeting also focused on the issues of labour, migration, and children’s and women’s rights,56 mirroring the themes of ASEAN human rights meetings.57 All these developments culminated in the 2005 Workshop in Beijing. This was the most comprehensive meeting to date for the Asia-Pacific workshops.58 Reviewing the progress of the four pillars set up by the Tehran Framework 1998, it did a stock-take of the progress since Tehran and summed up what action needed to be taken in the future to realise the original intentions of an Asia-Pacific regional framework. The meeting noted that of the four pillars – national plans of action, NHRIs, human rights education, and the advancement of economic, social, cultural, and developmental rights – the establishment of NHRIs held a lot of potential, thus would benefit by the support of the Asia-Pacific Forum of National Human Rights Institutions (APF) in partnership and cooperation with the UN Office of the High Commissioner on Human Rights (OHCHR).59 Effort must also go into developing human rights education, good governance, the rule of law, and other institutional practices to facilitate greater protection of rights.60 On the international level, fair and equitable globalisation as well as inclusive gender perspectives needed to come into play. In particular, the workshop brought to the forefront for the very first time the problem of human trafficking in Asia, naming it as a fundamental factor in the exploitation of persons and the denial of rights.61 Interestingly enough, it was suggested that human rights could perhaps be better promoted through activities at the sub-regional level so as to achieve an Asia-Pacific framework. Unfortunately, however, this was vetoed, as many states felt that they were 56

57 58

59

Workshop on the Impact of Globalisation on the Full Enjoyment of Economic, Social, and Cultural Rights and the Right to Development, Kuala Lumpur, 8–10 May 2001. See Chapter 4. Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements, Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region: Report of the Secretary-General, UN Doc. E/CN.4/2006/100 (2005). 60 61 Ibid., paras. 10–11. Ibid., Annex. Ibid., paras. 13–15.

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unready to move on to establishing regional arrangements at either regional or sub-regional level in the Asia-Pacific.62

Relating UN initiatives to ASEAN: maximising domestic impact The four Tehran pillars, calls for substantive action, and greater funding, were themes already mirrored in ASEAN human rights discussions. Moreover, the 2005 thematic discussion on how to eradicate human trafficking reflected ASEAN’s longstanding concern on the matter. While these UN Regional Arrangements for the Asia-Pacific discussions showed there existed an in-principle alignment of aspirations, it did not mean that there were substantive results despite the substantial funds allocated to these meetings.63 With AICHR’s establishment, how then should ASEAN states and the UN cooperate to improve the AICHR system and ensure the promotion and protection of human rights of the ASEAN peoples? In his incisive assessment of these regional initiatives, Vitit Muntarbhorn pointed out that these schemes – the presence of national plans of action, human rights education, focusing on economic, social, cultural, and development rights, and the establishment of NHRIs – while worthy, had not realised their real potential. It was imperative that these proposals were realised through substantive action to achieve direct effects at the national level.64 As such, the true value-added of such schemes necessitated sustainable programmes within the domestic framework. Muntarbhorn observed: [S]everal activities have been ad hoc rather than sustainable or sustained. A classic example is the tendency to organize inter-sessional/sub-regional workshops with little or no follow up . . . The approach of workshops has had to be rethought to avoid ad hoc activities [and] more commitment to sustained action in building the human rights protection system at the national level; the OHCHR should target more capacity building and the placement of national consultants advisers to help reforms at the national level in addition to establishing an OHCHR office in the Asia-Pacific region.65

To that end, the role of UN bodies in encouraging rights-based approaches and practices should not be underestimated as they had 62 63

64

Ibid., para. 19. Vitit Muntarbhorn, In Search of the Rights Track: Evolving a Regional Framework for the Promotion and Protection of Human Rights in the Asia-Pacific Region, OHCHR Discussion Paper, June 2005, at 16. 65 Ibid., at 15. Ibid., at 17.

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direct impact by having the mandate to carry out country programmes. Muntarbhorn commented that the UN’s presence in human rights could be increased in the Asia-Pacific through the United Nations Country Teams (UNCT), United Nations Educational, Scientific and Cultural Organization (UNESCO), and United Nations Development Programme (UNDP), which were already present in some Asia-Pacific states.66 In particular, Muntarbhorn noted that the ‘most successful building block’ of the Amman pillars was the setting up of national human rights institutions and their activities and this has been aided by the OHCHR office in the Asia-Pacific.67 Given that building the network of human rights mechanisms in the ASEAN region has often been prioritised, we now turn to assessing the four NHRIs in the ASEAN region and the urgency of creating closer networks between them to share experiences, best practices, and means of increasing effectiveness and efficiency; the protection of vulnerable groups such as children, women, and migrant workers; and human rights education to raise public awareness at all levels. Official cooperation to link the four NHRIs in the ASEAN region occurred in 2006 and 2007, especially after the First Regional Conference on Building Networks in April 2006.68 Based on the outcome of this meeting, the signing of a Declaration of Cooperation by the National Human Rights Commission of Indonesia (Komnas HAM), Human Rights Commission of Malaysia (SUHAKAM), Commission on Human Rights of the Philippines (CHRP), and the National Human Rights Commission of Thailand (NHRCT) resulted in June 2007.69 In the 2006 meeting, the NHRI grouping pledged to develop a framework to concretely address the five key areas of common concern: (1) international terrorism; (2) migration; (3) human trafficking; (4) human rights education; and (5) economic, social, and cultural rights and the right to development. While admittedly numerous ASEAN agreements were signed to tackle issues of human trafficking and terrorism, the human rights dimension was often absent from these plans as they focused on security implications and human welfare rather than using rights-based 66 68

69

67 Ibid., at 15. Ibid., at 14. First Regional Conference on Building Networks to Strengthen ASEAN Human Rights Cooperation: Summary of Proceedings, Manila, Philippines, 3–6 April 2006, paras. 4 and 11. Declaration of Cooperation by the National Human Rights Institutions of Indonesia, Malaysia, Philippines, and Thailand, Bali, Indonesia, 28 June 2007.

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frameworks.70 This was where the NHRIs took the opportunity to provide the necessary expertise while simultaneously deepening human rights practices in the region. The importance of this initial step for networking among the four NHRIs cannot be overlooked as domestic institutions cannot adequately deal with the transnational cause and effect of such problems. Of course, it is questionable the extent to which a network of four institutions can facilitate on issues that affect national sovereignty, especially when the other six ASEAN states have not yet established NHRIs. Nonetheless, what made the First Regional Conference on Building Networks unique was that it showed the intent that the four NHRIs in Southeast Asia possessed in tackling those issues. Moreover, the NHRI grouping formalised their partnership by calling themselves the ‘ASEAN NHRI Forum’ and tabled their propositions for the drafting of the Terms of Reference for the ASEAN Intergovernmental Commission on Human Rights in 2009.71 At the 2006 conference, incremental yet substantive proposals were voiced, signalling potential progress from merely a declaratory stance to substantive action. This would have enhanced efficacy if cooperation with AICHR were undertaken.72 Each of the four NHRIs expounded on their comprehensive studies of how regional cooperation among the NHRIs could occur. On human trafficking, the Philippines Commission on Human Rights stressed that domestic and transnational networks were needed to motivate local and regional stakeholders like governments, NHRIs, and civil society groups to encourage the ratification of human rights treaties, reform of municipal laws, and implement human rights education.73 Specifically, this entailed the need for ‘anti-trafficking legislation, reform of immigration laws, establishment of a uniform standard of procedures, compilation of statistical data, and international and regional cooperative action to tackle root causes, corruption, and protect vulnerable groups’.74 National Plans of Action were also encouraged to be brought forward to ASEAN such that a regional plan could be drafted to provide ‘protection and assistance for victims of 70 71

72

73

ASEAN and Social Development at www.aseansec.org/8558.htm. ASEAN NHRI Forum, Position Paper on the Terms of Reference of the ASEAN Human Rights Body, 20 March 2009. It must be noted that there is an uneasy relationship between some AICHR representatives and the ASEAN NHRI Forum, where the former view the latter as contending for the same sphere of influence. Per Amara Pongsapich, Chair of the National Human Rights Commission of Thailand, Regional Dialogue on UN Engagement with the ASEAN Human Rights System: Report, Bangkok, Thailand, 6 September 2010, at 8. 74 First Regional Conference, supra note 68, para. I.13. Ibid., paras. I.13 and I.19.

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human trafficking, establish closer cooperation between and among different immigration systems, and create a proper registration system within ASEAN’.75 As to migrant labour, SUHAKAM of Malaysia exhorted the need for sending and receiving states in ASEAN to accede to the International Convention on the Protection of Migrant Workers. It also urged the ASEAN NHRIs to put into effect the actions recommended in the 1999 Bangkok Declaration on Irregular Migration.76 While root causes such as ‘poor living standards in countries of origin’ were acknowledged to cause labour migration, the situation was exacerbated by the absence of a coordinating and communication mechanism at all levels of governance and the scant respect for international human rights standards with respect to migrant labour by both the sending and receiving countries. Recognising that discrimination against migrant labour persisted77 because of ‘the lack of understanding, awareness, and differences in the perception of the problem and benefits of migrant workers by governments, NHRIs, civil society, the business sector, and general public’,78 it was suggested that the NHRIs should: Promote international standards for migration and refugees [by conducting] forums that bring together governments, NGOs and [other] stakeholders in the migrant worker sector . . . to develop a common understanding of the issues at the national and regional levels.79

In its exposition on regional terrorism, Indonesia’s Komnas HAM stressed the ‘need to respect human rights in anti-terrorism measures and the need for international cooperation to address the problem’.80 This was very relevant to Indonesia, as well as other ASEAN states, as it continued to crack down on terrorist suspects and carries out trials against those accused of bombings, conspiracy, and other terror activities. Regional cooperation was needed to track down suspects and cells, stop illegal activities, and facilitate the oft-tenuous extradition process. It was noted that enforcement agencies lacked the requisite capacity to counter terrorism effectively or to implement international 75 76 77

78 79

Ibid., para. III.13. Ibid., para. I.15. Bangkok Declaration on Irregular Migration, Thailand, 23 April 1999. For e.g., tensions between sender and receiving countries of migrant labour have often erupted among ASEAN states. Friction between Indonesia and Malaysia has increased as more Indonesian illegal migrants seek jobs in Malaysia. See ‘RI-Malaysia Migrant Worker Talks Stall on Passport Issue’, Jakarta Post, 26 August 2010. First Regional Conference, supra note 68, para. I.21. 80 Ibid., para. III.15. Ibid., para. I.14.

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counter-terrorism treaties.81 The non-membership of some ASEAN states to anti-terror conventions further crippled any potential regional cooperation.82 To make up for the lack of regional resources, NHRIs were exhorted to ‘undertake joint research on the roots of international terrorism . . . and intensify regional cooperation, coordination, and information-sharing’.83 Economic, social, and cultural rights and the right to development were discussed by the National Human Rights Commission of Thailand which supported heightened regional cooperation through the sharing of best practices and experiences, research cooperation, and regular discussion on common issues of concern.84 However, topmost priority was given to the need to develop rights-based approaches in accordance with the achievement of the Millennium Development Goals, stressing that ‘national efforts must be focused on the implementation’ of these goals, especially poverty reduction, mortality rate, and gender equality.85 It can be noted that these suggestions for regional cohesion and cooperation were geared towards effective action and avoiding executional overlaps. Moreover, the repeated emphasis for the need for better access to communal information as well as a network for sharing best practices – such as ‘the establishment of a hotline and use of the internet . . . for quick action and ready reference’ – illustrate the dearth of requisite resources that the ASEAN NHRIs and governments need to effectively deal with the above problems.86 Recognising that national and regional initiatives needed to be supported by external institutions, the efforts of the Working Group were acknowledged and it was agreed that cooperation with it would continue towards the establishment of an ASEAN Human Rights Mechanism.87 The OHCHR’s technical and advisory assistance regarding ‘the establishment of regional human rights mechanisms, administration of justice, legislative reforms, capacity building, and human rights education’ were acknowledged.88 In addition, with respect to the establishment of new NHRIs in ASEAN states, the support of the Asia-Pacific Forum, OHCHR, the existing four 81 85

86 88

82 83 84 Ibid., para. I.20. Ibid. Ibid., para. III.14. Ibid., para. I.16. Ibid., paras. I.22 and III.11. See also Chapter 6 for detailed discussion on Southeast Asia and the Millennium Development Goals. 87 First Regional Conference, supra note 68, para. III.15. Ibid., para. I.21. Ibid., para. I.20. Sonia Cardenas feels that the UN contribution in these respects have been invaluable, so much so that progress would not have been made without it. See Sonia Cardenas, ‘Emerging Global Actors: The United Nations and National Human Rights Institutions’, 9 Global Governance (2003) 23.

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NHRIs, and other partners was needed to ‘mobilise resources’, draft action plans, and offer technical pointers. It was agreed that a steady and gradual approach was necessary to persuade governments to establish effective and independent NHRIs.89

Moving forward: establishing NHRIs in ASEAN states This movement for heightened networking among the four NHRIs in ASEAN is a step in the right direction and must be continued because national initiatives are indispensable to regional cooperation, adding value to AICHR and ensuring that violations are not carried out with impunity at the domestic level. In order for human rights to improve and gain credence in the ASEAN region, institutional building needs to take place not only at the regional level but also on the domestic front, with links between the two. As experience has shown, ASEAN states with NHRIs tend to be more favourable to the idea of a regional human rights institution, even if the domestic violations remain intractable. Human rights proponents like the UN and the Working Group have advocated that more NHRIs established in accordance with the Paris Principles and working towards a common vision while sharing information and best practices would strengthen and quicken the pace of the growth of human rights in ASEAN. However, two crucial questions remain. First, how can the remaining ASEAN states be convinced or muster enough political will to establish national human rights commissions? Primary impetus must come from within the state before external expertise can be rendered, as no international actor can compel a state to do so against its will. It is encouraging to note that Cambodia is preparing to establish its national commission, though no firm deadline has been given.90 Vietnam, too, has vowed that it will not be the last ASEAN member to establish an NHRI.91 Second, how are these NHRIs to maintain the independence necessary for real effectiveness? ASEAN states must realise that the establishment of such commissions is not to be relegated as a public relations stunt but real power must be given. As seen in Chapter 4, the 89 90

91

First Regional Conference, supra note 68, paras. III.17 and III.18. ‘Cambodian Joint Working Group Commits to Undertake Serious Work for an Independent NHRI’, ASEAN NHRI Forum News Release, 26 May 2010. ‘First Deputy Minister of Foreign Affairs Le Cong Phung: Viet Nam Won’t Be Last in ASEAN to Set Up a National Human Rights Commission’, 29 June 2007, at www. aseanhrmech.org.

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four NHRIs of Indonesia, Malaysia, the Philippines, and Thailand are frequently hampered in their course of duty due to competing obligations, state restrictions, and political difficulties.92 Unsurprisingly, they are criticised by both the government and non-governmental groups for failing to meet the respective sides’ expectations. For instance, the ousted Thai premier, Thaksin Shinawatra, condemned Thailand’s human rights commission for its scathing report of the brutal ‘war on drugs’ carried out in the southern provinces during his term of administration.93 Conversely, in Indonesia, while acknowledging the shortcomings of the national commission, the South Asia Human Rights Documentation Center (SAHRDC) has faulted NGOs for not recognising the merits achieved by Komnas HAM.94 In order for NHRIs to work properly, the ASEAN states must understand and respect the requisite powers and autonomy of these bodies. This is vital if national remedies – local courts and/or the domestic human rights commission – are to be exhausted before recourse to any regional mechanism; in this case, AICHR. However, a key problem to the functioning of NHRIs is that despite being ‘the essential accessory for a government concerned to promote and protect human rights or at least to give that appearance’,95 there remains no clear definition to what such a body should be.96 While the UN describes the NHRI as ‘a body which is established by a Government under the constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights’,97 experts like Richard Carver prefer to use a looser description, that any ‘autonomous official institution that includes human rights within its mandate’ would be considered 92 93 94

95

96

97

See Chapter 4. ‘Thailand’s National Human Rights Commission’, Human Rights Features, 8 May 2003. ‘Komnas HAM – The Indonesian Human Rights Commission: A Long Way to Go’, Human Rights Features, 6 December 2000. Richard Carver, ‘Review Article of “Birgit Lindsnaes, Lone Lindhole and Kristine Yigen, National Human Rights Institutions: Articles and Working Papers” (Danish Centre for Human Rights, Copenhagen, 2000)’, 70 Nordic Journal of International Law (2001) 267, at 267. Linda Reif, ‘Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection’, 13 Harvard Human Rights Journal (2000) 1, at 5. OHCHR, National Human Rights Institutions: A Handbook for the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, OHCHR Professional Training Series No. 4, UN Doc. HR/P/PT4, at para. 39, quoted in Reif, ibid., at 5–6.

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an NHRI.98 To a large extent, the general scope of what constitutes an NHRI was agreed upon by the UN General Assembly in December 1993 in its resolution setting forth the Principles relating to the Status of National Institutions (‘The Paris Principles’).99 These include a broad, independent, and free legal mandate (vested either in the constitution or legislation) to promote and protect human rights, be competent to submit reports or opinions to the state on domestic human rights situations that need to be addressed, and to ensure the harmonisation of national laws and policies with international human rights treaties to which the state is a party and their effective implementation.100 Briefly, NHRIs have been observed to be established when a state moves from a conflict situation to democracy, there is internal democratic consolidation, or for the improvement of its international reputation – being perceived as proactively rectifying serious human rights abuses.101 NHRIs tend to take three common forms – a commission, ombudsman, or a hybrid of the two;102 and cover a wide range of duties such as investigating alleged human rights abuses in the public and private sectors, giving non-binding advice and recommendations to rectify problems, helping human rights victims seek redress (legal or otherwise), providing research and reports on human rights issues and international norms, enabling a forum in which human rights issues can be discussed between the state and public, assisting in drafting national human rights plans of action and human rights education, and supporting the national courts in upholding protections.103 Whatever form the 98 99

100 101

102

103

Carver, supra note 95, at 268. Principles Relating to the Status of National Institutions (The Paris Principles), GA Res. 48/134, UN Doc. A/RES/48/134 (1993). Ibid., paras. 1–3. Anne Smith, ‘The Unique Position of National Human Rights Institutions: A Mixed Blessing?’, 28 Human Rights Quarterly (2006) 904, at 905. The difference between a commission and an ombudsman is that the former is usually mandated to scrutinise human rights abuses committed by both the governmental and/ or private sectors in the fields of civil-political and/or socio-economic and cultural rights, while the latter is traditionally viewed as a device to ensure fairness in public administration. Hybrids, as the name suggests, are a cross between the office of a commission and an ombudsman, taking on aspects of human rights promotion and protection as well as scrutiny of public administration. The degree to which it resembles either mechanism will depend on its mandate. See Reif, supra note 96, at 9–11; and Cardenas, supra note 88, at 25. This list is non-exhaustive. For greater exposition of the work of NHRIs, see Cardenas, supra note 88, at 25–7, especially at 26 where NHRI functions are delineated according to regulative and constitutive aspects and in the capacity it works with various government departments and the international community; and Reif, supra note 96, at 6–7.

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NHRI takes, whether it is a commission, an ombudsman, or a hybrid, the most important criterion is that it must be ‘autonomous in both decision-making and organisational resources’ so that it can carry out its mandate uncompromised.104 However, this is not so easy to achieve as NHRIs straddle the contentious position between civil society and the state. As Smith pointed out: NHRIs are statutory bodies and are usually state-sponsored and statefunded, set up whether under an act of parliament, the constitution, or by decree with specific powers and a mandate to promote and protect human rights [thus] there is a perception in a number of countries that they are government bodies.105

On the other hand, NHRIs are also expected to engage with civil society to provide NGOs with effective channels to the state authorities. The common view is that NHRIs’ proximity to the government ‘should help them [gain easier access] to information and documents that NGOs may not easily be able to obtain and a closer engagement with government officials [and other institutions]’.106 Theoretically, the middle ground that NHRIs stand on is meant to conduct a bridging function between the government and civil society.107 Unfortunately, caught between a rock and a hard place, the NHRIs tend to face suspicion by both sides instead. The NHRI can be written off as a state apologist if it is viewed to be working on the government’s payroll and for its agenda. The converse is true if the government thinks that the NHRI is overly supportive of the NGO sector.108 It is hence vital that the NHRI must strive to be impartial and ‘protect itself from excessive interference’ from the government or civil society.109 From Chapter 4, we have seen that the reasons of establishment of the Indonesian, Malaysian, Philippine, and Thai NHRIs correspond to a blend of the above reasons in wanting to deal with the excesses of former dictatorships as well as to project a human rights-friendly attitude to the international community. Furthermore, the ASEAN states have tended to prefer the ‘commission’ model for monitoring human rights, although the Philippines also has a separate ombudsman office.110 As 104

105 108 110

Cardenas, supra note 88, at 25. See, generally, Kamal Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices: National Experiences throughout the World (The Hague: Kluwer Law International, 2000). 106 107 Smith, supra note 101, at 909. Ibid. Ibid. 109 Ibid., at 910. Ibid., at 911. The Philippine Office of the Ombudsman is charged with five major functions – public assistance, graft prevention, investigation, prosecution, and administrative adjudication, at www.ombudsman.gov.ph.

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expected, also, the four NHRIs of Indonesia, Malaysia, the Philippines, and Thailand are prone to the pitfalls described above. Despite striving to adhere to the Paris Principles, they continue to face a slew of procedural, technical, and substantive obstacles stemming largely from the government and the limitation within their own mandate, thereby effectively mitigating the real powers they were to possess if the Paris Principles were strictly upheld. ASEAN states do not seem to have quite grasped the basic requirements spelt out in the Paris Principles.111 In the Philippines, the president has the sole power to appoint human rights commissioners and tenure is seen as a ‘political reward’ for those with connections to the ruling party.112 Similarly in Malaysia, the SUHAKAM struggles under the state’s heavy hand as the prime minister wields power over the appointment to the commission.113 Tenure for commissioners is for only two years and re-appointment will then be reviewed. As such, commissioners may feel implicit pressure to ‘toe the line’ or face the cut. Moreover, the term of office is too short to make a real difference in human rights reform in Malaysia. To compound matters, its independence continues to be curtailed. SUHAKAM began operating from the Ministry of Foreign Affairs (MFA) premises and had to answer to the MFA and Malaysian Treasury for the execution of its budget. From 2004, SUHAKAM then came directly under the Prime Minister’s Office.114 Given the proximity and ‘direct’ executive influence, it is hard to imagine the liberty SUHAKAM has to properly exercise its already-restricted office without censure.115 Widespread disrespect of NHRIs by governments is not limited to SUHAKAM. In Indonesia, Komnas HAM was harassed by the Indonesian 111

112

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114

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Paris Principles, supra note 99, paras. 1–3 on ‘Composition and Guarantees of Independence and Pluralism’. ‘The Philippines Commission: Stymied by Its Character’, Human Rights Features (August/September 2005). Asian Forum for Human Rights and Development (Forum-Asia), Performance of National Human Rights Institutions in Asia 2006: Cooperation with NGOs and Relationship with Governments (Bangkok: Forum-Asia, 2006), at 38. For a general (though not so recent) overview of NHRIs in Southeast Asia, see Philip Eldridge, ‘Emerging Roles of National Human Rights Institutions in Southeast Asia’, 14(3) Pacifica Review (2002) 209. SUHAKAM’s history at www.suhakam.org.my/en/about_history.asp; ‘SUHAKAM: The Malaysian Human Rights Commission Finding Its Feet’, Human Rights Features, 2 July 2001. For a comprehensive review of SUHAKAM’s operations and limitations, see Amanda Whiting, ‘Situating SUHAKAM: Human Rights Debates and Malaysia’s National Human Rights Commission’, 39(1) Stanford Journal of International Law (2003) 59–98.

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army while carrying out its duties in Aceh during 2004, and the implementation of the National Plan of Action failed to be implemented due to the lack of cooperation between the Commission and the Ministries for Foreign Affairs and Justice and Human Rights.116 As for the Thai Commission, Commissioner Pradit Chareonthaitawee was labelled traitorous and threatened with impeachment by former premier Thaksin after he consistently voiced concerns over the extrajudicial methods the security forces used to crack down on drug suspects.117 On top of governmental opposition, there has been criticism of incompetence for the improper functioning of NHRIs. The Philippine Commission has been rebuked for having an unwieldy website and not giving helpful information to the public – the most remarkable of which was the lack of basic information of how to file a complaint with the Commission.118 While the Philippine Commission describes at length the numerous programmes that it conducts – human rights education and training, barangay-level centres (grassroots-level/local government units), legal aid, and so on, there has not been any public release of its annual reports, making it hard to assess the progress the Commission has made.119

Conclusion As such, much remains to be done at the national level within ASEAN. Over and above the general regional and domestic reform, specific offices like national human rights commissions can help to better spearhead, facilitate, and coordinate changes – if and only if they are given the required autonomy. It is imperative that ASEAN states understand that the purpose of having NHRIs is more than window-dressing or paying lip-service to the Paris Principles. As it stands, the Paris Principles are merely minimum standards, yet NHRIs in the ASEAN region are not meeting the mark.120 Over the course of her research, Reif advocated that NHRIs needed to exist in a democracy where their independence was firmly assured. They also need proper areas of jurisdiction, including adequate powers of scrutiny and space to address the claimants whose human rights have been violated. Governmental departments and courts therefore have a duty to cooperate with NHRIs instead of obstructing the exercise of their mandate. Normal modes of good governance and 116 119

120

117 118 Forum-Asia, supra note 113, at 33. Supra note 93. Supra note 112. Ibid. See also the Philippine Commission’s programmes and services at www.chr.gov.ph/ MAIN%20PAGES/services/progs_services.htm. ‘More Power to the Paris Principles’, Human Rights Features (August/September 2005).

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transparency must also apply to NHRIs so that operational efficiency and public accountability can be upheld. This will give NHRIs the crucial legitimacy in the eyes of the public that their complaints are not subsumed into bipartisan compromise between the state and civil society.121 Jurists like Raj Kumar have noted that elsewhere in the world, the work scope of NHRIs is expanding beyond the common base of civil and political rights to encompass economic and social rights.122 He has also observed how the presence of NHRIs helps to boost the country’s good governance, mainstream human rights, and complement the judicial functions.123 On another level of human rights institutionalisation is human rights education undertaken by the state and NHRIs. While widely agreed to be a revolutionary tool, it has tended to be more rhetoric than sustained reform, more actively undertaken by civil society than the government.124 Apart from dissemination of information and some training programmes, carrying out comprehensive human rights education at all levels, including school curricula, has not been witnessed worldwide.125 International practices on human rights education are only now beginning to cohere enough for systematic data collection and analysis.126 These additional functions are for now beyond the ambit of the four NHRIs in the ASEAN region, as well as those slated to be established. 121 122

123

124

125 126

Reif, supra note 96, at 24–8. C. Raj Kumar, ‘National Human Rights Institutions and Economic, Social and Cultural Rights: Toward the Institutionalisation and Developmentalisation of Human Rights’, 28 Human Rights Quarterly (2006) 755. C. Raj Kumar, ‘National Human Rights Institutions: Good Governance Perspectives on Institutionalisation of Human Rights, 19 American University International Law Review (2003) 259. Sonia Cardenas, ‘Constructing Rights? Human Rights Education and the State’, 26(4) International Political Science Review (2005) 363. UN action on human rights education, at www.ohchr.org/english/issues/education/training. Cardenas, ibid., at 364. See e.g., Volker Lenhart and Kaisa Savolainen, ‘Human Rights Education as a Field of Practice and of Theoretical Reflection’, 48 International Review of Education (2002) 145; Felisa Tibbitts, ‘Understanding What We Do: Emerging Models for Human Rights Education’, 48 International Review of Education (2002) 159; Sabine Hornberg, ‘Human Rights Education as an Integral Part of General Education’, 48 International Review of Education (2002) 187; Claudia Lohrenscheit, ‘International Approaches in Human Rights Education’, 48 International Review of Education (2002) 173; Stefanie Lessmann, ‘Databases on Human Rights Education’, 48 International Review of Education (2002) 145. For human rights education in the Asia-Pacific, see Edelweiss Silan et al., Reclaiming Voices: A Study on Participatory Human Rights Education Methodologies in the Asia Pacific (Bangkok: Asia-Pacific Regional Resource Center for Human Rights Education, 2004).

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The task at hand for human rights proponents is to continue to encourage and provide technical support for the establishment of NHRIs within the region. In light of the ASEAN Way, it is hard to imagine how member states comfortable with the status quo will gain enough impetus to want to set up a national commission. For those who do, UN and other external assistance in human rights institution-building may be invaluable in providing technical know-how and sharing best practices.127 This would include the formation of national human rights plans of action which the OHCHR strongly promotes. Coordination between UN and third parties with ASEAN states may be facilitated by the Working Group which has gained much trust in ASEAN on human rights.128 Moreover, there is strength in numbers and in greater cooperation with the UN bodies. While the four NHRIs of Indonesia, Malaysia, the Philippines, and Thailand have already formed the ASEAN NHRI Forum, this grouping can be further empowered to help AICHR achieve international standards more rapidly by continuing to participate in the Asia-Pacific Forum of National Human Rights Institutions (APF).129 Not only would these NHRIs be better equipped to ‘resist being captured . . . by states antagonistic to the universality of human rights by maintaining full membership of the APF network’,130 the APF also: Provides the opportunity for the sharing of best practices, and consequently enhances NHRI performance and compliance with international standards [and] also incrementally initiates and builds transnational human rights programmes of collaboration via their various activities with human rights commissions, national governments, and NGOs. This ‘transnational horizontal network’ [thereby] executes an effective form of ‘human rights diplomacy’ and may arguably present an . . . aid to the development of a regional human rights body. [The] APF’s activities often take it ‘closer to the ground’, allowing it to be ‘conversant with local conditions’, and well-placed to translate domestic and local concerns into ‘strategies for human rights protection’.131 127 129

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128 Cardenas, supra note 88, at 34–5. OHCHR, supra note 97. Asia Pacific Forum of National Human Rights Institutions (APF) at www.asiapacificforum.net. A study is being conducted by the Australian Research Council and APF to study APF’s role in promoting human rights throughout the Asia-Pacific. The Project is based at the Australian Human Rights Centre at the Faculty of Law, University of New South Wales, Sydney. See www.ahrcentre.org/APFproject.html for the project outline. Andrea Durbach, Catherine Renshaw, and Andrew Byrnes, ‘A Tongue but No Teeth? The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region’, 31 Sydney Law Review (2009) 211, at 229. Ibid., at 237.

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If this course of action is pursued, the NHRIs in the ASEAN region would be better placed to uphold the promotion and protection of human rights within their own societies while providing the necessary support to AICHR in carrying out its mandate. In due course, as human rights awareness grows, these NHRIs would be well-placed to encourage the respective AICHR representatives to set up NHRIs in their home states where there was none.

6 The unexplored aspect of human rights: what ASEAN needs to understand about the right to development Introduction Where the previous chapters dealt with how the more traditional aspects of human rights have been transforming the Association of Southeast Asian Nations (ASEAN) region, this chapter will deal with a relatively unexplored dimension – the interplay between Southeast Asia and the right to development. Although the term ‘right to development’ has been bandied about by many developing states, including those from ASEAN, not enough consideration has gone into defining what it really consists of or how it is to play a role in the international human rights discourse. Given the purported importance of socio-economic, cultural, and development rights to ASEAN states, it is important to elucidate the exact parameters of the right to development so as to see how it can take shape and be exercised within the region. For much of the international community, human rights remains largely centred on the so-called first and second generations of civilpolitical and economic, social, and cultural rights respectively. Nonetheless, this third generation – development rights – is taking mincing steps towards a more tangible persona in the global arena through the development discourse’s adoption of rights-based programmes and methodologies. It is gradually shedding its unflattering tag of a right that aims to encompass all human rights but in actuality does not consist of anything tangible. As the name suggests, the right to development revolves around the mutual engagement of human rights and development. On one hand, the human rights discourse has advanced the right to development as a right which synthesises and enhances all other human rights (civilpolitical, socio-economic, and cultural) so as to enable the legitimate nation-building aspirations of developing states. On the other hand, the development discourse has also begun to co-opt human rights. The 206

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human rights in development project heralds the introduction of civilpolitical, socio-economic, and cultural rights to state and social development, poverty reduction, and macro-economics. Therefore democratic accountability, good governance, rights-based approaches, human rights in development, and equitable outcomes have become mainstays in human rights and development terminology. As rights-based approaches in development projects are increasingly applied, a whole new dimension to the erstwhile categories of civil-political and socio-economic rights is being constructed by raising the status of the latter to a plane equal to the civil-political. Generally, the right to development deals with peoplecentred, participatory, and environmentally sound non-discriminatory policies, involve equitable distribution of wealth in attaining economic growth, and the enhancement of people’s capabilities to ensure them choice, empowerment, and freedom.1 In exploring the human rights–development nexus, we shall find that the right to development project has not yet been operationalised. Its parameters are only now just beginning to take firmer shape, although the Declaration on the Right to Development was adopted by the UN General Assembly as early as 19862 and reaffirmed by consensus in the 1993 Vienna Declaration.3 Subsequently, the human rights and development theme has been accorded even more priority with the international community’s solidarity in striving towards the Millennium Development Goals (MDGs).4 This global campaign aims at eliminating poverty, raising education standards, supporting gender equality, and increasing the obligations of developed nations to aid the growth of developing states thereby bringing about a more equitable world.5 1 2

Development – Right to Development, at www2.ohchr.org/english/issues/development. Declaration on the Right to Development, 4 December 1986, A/RES/41/128 (1986). Art.1 states: The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realised.

3

4 5

Vienna Declaration and Programme of Action, 12 July 1993, UN Doc. A/CONF.157/23 (1993) (document resulting from the World Conference on Human Rights, Vienna, 14–25 June 1993) para. 10. United Nations Millennium Declaration, 18 September 2000, UN Doc. A/RES/55/2 (2000). Ibid. For a summary, see What are the Millennium Development Goals?, at www.undp.org/ mdg/basics.shtml.

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As can be expected of the interaction between the two distinct discourses of human rights and development, clashes regularly arise on points of international economics, trade, and poverty reduction methods. Not only is there theoretical difficulty but there are substantive hurdles as to how human rights and development operations are carried out in the field. At the same time, the international community – states and organisations – is familiarising itself with the right to development’s emerging mode of operations and obligations. To help overcome the teething problems within the United Nations (UN), the Office of the High Commissioner for Human Rights (OHCHR) has a large responsibility to mainstream human rights into UN activities.6 More specifically, the United Nations Development Group (UNDG) has been engaged to facilitate the objectives of the right to development.7 This has translated to policy vehicles like United Nations Development Assistance Framework (UNDAF) through common country assessments (CCAs),8 as well as the adoption by the UNDG of the Common Understanding among UN Agencies on the Human Rights Based Approach to Development Cooperation in 2003 to ensure consistent programming practices at the global and national levels.9 In addition, the World Bank is also modifying the way it interprets its Articles of Agreement to enable human rights-friendly policies to be carried out.10 It is important to note that the international right to development outlined above is a far cry from the ‘development before human rights and democracy’ theory argued by ‘Asian values’ proponents. The right to development insists that every member of the international community – developed and developing states, international and non-governmental organisations alike – do their part in fulfilling the right to development. It is neither an unlimited claim by developing states against the 6

7 8

9

10

Mainstreaming Human Rights, at www.ohchr.org/EN/ABOUTUS/Pages/WhatWeDo.aspx. See particularly, ‘Development (Good Governance and Debt)’ and ‘Economic, Social and Cultural Rights’ in List of Issues, at www.ohchr.org/EN/Issues/Pages/ListOfIssues.aspx. For a discussion on human rights and development within UN activities, see Mac Darrow and Louise Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the United Nations’, 103 American Journal of International Law (2009) 446. Human Rights-Based Approach, at www.undg.org/index.cfm?P=221. Common Country Assessment (CCA)/United Nations Development Assistance Framework (UNDAF)/ Poverty Reduction Strategy Papers (PRSP), at www.un.org/special-rep/ohrlls/ ohrlls/cca_undaf_prsp.htm. The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding among UN Agencies, at www.undg.org/index.cfm?P=221. Ana Palacio, ‘The Way Forward: Human Rights and the World Bank’, World Bank Development Outreach (October 2006).

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developed ones, nor one which allows wanton pursuit of economic development to the exclusion of human rights. What this chapter aims to do, therefore, is to show what the right to development really means in today’s context and what implications this has for ASEAN states individually as well as for the ASEAN Intergovernmental Commission on Human Rights (AICHR) as it eventually takes on the oversight duties for the human rights vested in development. Remembering that Singapore and Malaysia were most vocal about the priority status development should have in human rights, and that Indonesia, Thailand, and the Philippines have been equally keen to claim the right to development, an exposition of this right will hopefully divest the ASEAN states of onerous claims from developed nations for development assistance so that they can help to frame realistic expectations instead.11 It is also hoped that a proper understanding of the right to development will lead to the execution of rights and obligations so as to lead to equitable economic prosperity and stronger democratic societies in the ASEAN region.

The ‘generational theory of human rights’ and the ‘right to development’: mere terms of art? Although the right to development is only just starting to raise its profile, it is not a latter-day concept. The advent of development principles in human rights arose alongside the institution of the international human rights discourse. After the Second World War, the bipolar world caused an artificial bifurcation between what was intended to be a body of indivisible and equal rights.12 However, with the capitalist West favouring the civil-political rights, and socialist and developing states supporting the economic, social, and cultural rights, a ‘generational’ theory of human rights inadvertently came about.13 Despite the rival bloc’s protests, the capitalist powers through sheer hegemonic influence managed to portray civil and political rights as the ‘real’ human rights. This led to the myth that socio-economic and cultural rights were not of the same importance, the perception that they were the ‘second generation of human rights’ as compared to the

11 12 13

See Chapters 3 and 4. For a re-cap of the evolution of human rights, see Chapter 3. See Chapter 2.

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‘first generation’ of civil-political rights, and the false separation of ‘negative’ and ‘positive’ human rights.14 Not until the demise of communism did socio-economic and cultural rights gain gradual acceptance, but shadows of this bias unfortunately still remain. As Brigitte Hamm stated: The so-called second generation rights have led a kind of shadow life until the late 1980s. This is more or less still true for cultural rights . . . In contrast, economic and social rights have become part of the mainstream human rights discussion, although they have not yet received equal treatment as compared with political rights and civil liberties.15

In spite of the precedence of civil and political rights, calls for the fulfilment of socio-economic and cultural rights continued unabated by the newly independent states. They demanded through the UN General Assembly the establishment of a just and equitable international society to enable the development and prosperity of their own states.16 They achieved their aim just after the completion of the two International Covenants in 1966. The Proclamation of Tehran 1968 declared that: The widening gap between the economically developed and developing countries [impeded] the realisation of human rights in the international community and that since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights [was] impossible.17

This was further elaborated in the 1969 Declaration on Social Progress and Development which spelt out the practical terms of social progress like living standards, education, employment, and the discretion of

14

15

16 17

The falsity of generational theory of human rights has been argued by Asbjorn Eide and Allan Rosas, ‘Economic, Social and Cultural Rights: A Universal Challenge’, in Asbjorn Eide, Catarina Krause, and Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (Dordrecht; Boston: Martinus Nijhoff Publishers, 1995), 3 at 16. Brigitte I. Hamm, ‘A Human Rights Approach to Development’, 23 Human Rights Quarterly (2001) 1,005, at 1,006. See also Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen; New York: Intersentia, 2003). See Chapter 2. Proclamation of Tehran, Final Act of the International Conference on Human Rights, Tehran, 22 April–13 May 1968, UN Doc. A/CONF. 32/41 (1968), at paras. 12–13. For a concise history of the right to development, see N. J. Udombana, ‘The Third World and the Right to Development: Agenda for the Next Millennium’, 22(3) Human Rights Quarterly (2000) 753, at 764.

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states to take charge of their development policies.18 Momentum for the articulation for the right to development grew in the 1970s as developing nations clamoured for a ‘New International Economic Order’.19 They strove for more parity in trading terms, increased aid, technological transfers, and other socio-economic packages that rich developed nations (especially former imperialist states) were ‘obligated’ to give.20 Finally, the third world caucus met certain success in 1979 when the UN Commission on Human Rights asked the UN Secretary-General to undertake a comprehensive study to establish what the right to development constituted.21 In 1986, the right to development was formally recognised by the General Assembly.22 What the Declaration on the Right to Development essentially did was to crystallise the debate of the preceding years. Summarily, the right to development was reiterated as an inalienable right for every human person and a means by which economic, social, cultural, civil and political rights would be fully realised.23 Again, the indivisibility and interdependency of the different types of human rights were explicitly stressed. States were exhorted to eliminate every obstacle to development stemming from the failure to respect civil, political, social, economic, and cultural rights. No one type of right was to be superior or pursued in favour over another.24 Heeding the developing nations’ demands, states were vested with the ‘primary responsibility’ to create favourable national and international conditions for the promotion of a new international economic order.25 In practical terms at the domestic level, this translated to the need for national governments to ensure gender equality and fair access for all persons to basic resources, education, health services, food, housing, employment, and just wages.26 As the right to development was seen as a concerted global effort, terms of responsibility were also spelt out for the international community. 18

19

20

21 22 23 25

Declaration on Social Progress and Development, 11 December 1969, GA Res. 2542 (XXIV), UN Doc. A/7630 (1969). See also Adeoye Akinsanya and Arthur Davies, ‘Third World Quest for a New International Economic Order: An Overview’, 33(1) International and Comparative Law Quarterly (1984) 208. Arjun Sengupta, ‘On the Theory and Practice of the Right to Development’, 24 Human Rights Quarterly (2002) 837, at 839. Philip Alston, ‘Revitalising United Nations Work on Human Rights and Development’, 18 Melbourne University Law Review (1991) 216, in Udombana, supra note 17, at 763. Sengupta, supra note 19, at 840. Declaration on the Right to Development, supra note 2. 24 Ibid., arts. 1(1) and 2(1). Ibid., arts. 6(2) and (3). 26 Ibid., arts. 3(1) and (3). Ibid., art. 8(1).

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Moreover, in order to complement the efforts of the developing states, the international community was called upon to formulate international development policies’. In particular, rich nations were encouraged to sustain efforts in providing ‘appropriate means and facilities’ for the developing nations’ continued growth.27 While the right to development has been clearly spelt out since 1986, it is unsurprising that states did not catch on to the idea to successfully convert it to an international obligation. The Declaration remains a non-binding agreement today. Continued aversion to the right to development will continue if developing states continue to labour under misconceptions like ‘development first’ theories or expect it to be an unfettered right to aid and other international benefits from the developed world. Although the right to development was supported by 146 states, 8 industrialised nations (including Denmark, Sweden, Japan, and the UK) abstained. Unsurprisingly, the US voted against it.28 As contentions on the right to development abound, it remains a right that states are unwilling to endorse and thus unable to possess binding force either by treaty or custom. Nonetheless, there is much support for human rights and development even from the ‘detractors’ of this selfsame right. Despite their abstention, Danish and Swedish efforts in development and human rights have been very active all these years. With respect to the US, Stephen Marks has noted with irony that despite viewing the right to development with suspicion, modern American development programmes are ‘strikingly similar to the international right to development model’.29 Plainly, the right to development is a work in progress and cannot be activated as a ‘right’ in the international legal sense just yet. If this right is to be someday actuated, fulfilling current global expectations for the growth of human rights in development, then there must be an alternative way around this impasse. As Hamm noted somewhat pointedly, the protection of civil-political rights is a must as is the rightful focus on socio-economic rights. There should not be the favouring of one type of right over another, for example, neglecting civil-political rights in the 27 28

29

Ibid., arts. 4(1) and (2). Voting Record of the Declaration on the Right to Development (UN Doc. A/RES/41/ 128), United Nations Dag Hammarskjo¨ld Library, Voting Record Collection, at http:// unbisnet.un.org. For an account of the US position on the right to development, see Stephen Marks, ‘The Human Right to Development: Between Rhetoric and Reality’, 17 Harvard Human rights Law Journal (2004) 137.

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quest to achieve socio-economic, cultural, and development rights. Hamm also stressed the need for strengthening the right to development’s justiciability as it ‘cannot function as a substitute for a human rights approach to development, because of its vagueness, lack of legal obligation laid down in an international treaty, and lack of consensus’.30 This shortfall of the right to development has clearly been recognised. Yet the international community sees enough value in the diversity and compatibility of the human rights–development relationship to merit efforts to bridge both discourses.31 Rights-based approaches may well be the vehicle through which the right to development can be realised.

Meeting each other half way: the development discourse adopting human rights practices Compared to the right to development when human rights integrated development themes, reciprocal action from the development discourse did not occur till much later. The post-World War Two reconstruction concerned itself with rebuilding devastated societies and economies as rapidly as possible. Reflecting the developing nations’ desire for international equity, development then diversified in the 1970s by adopting multi-disciplines with social concerns such as the ‘basic needs’ strategy, poverty, women, neo-Marxist, and socialist themes.32 However, global interest in ‘social sectors and micro-orientation’ waned during the 1980s as World Bank programmes carried out strident ‘structural adjustment, economic efficiency, and macro-regulation’ programmes that placed the weakest state economies effectively under its directives.33 It was only in the 1990s that there was a resurgence in greater social awareness in development operations by the UN and other international organisations. This was partly aided by active gender mainstreaming and the onset of children’s rights in the 1989 Convention on the Rights of the Child (CRC). For example, the United Nations Children’s Fund (UNICEF) actively promoted children’s development through 30 31

32

33

Hamm, supra note 15, at 1,010. United Nations Development Programme (UNDP), Human Development Report 2000: Human Rights and Human Development (New York, Oxford: Oxford University Press, 2000), at 19. Hans-Otto Sano, ‘Development and Human Rights: The Necessary but Partial Integration of Human Rights and Development’, 22(3) Human Rights Quarterly (2000) 734, at 739. Ibid., at 740.

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the CRC.34 In addition, the General Assembly declared the period 1997 to 2006 as the ‘First UN Decade for the Eradication of Poverty’ in 1995.35 Serious efforts for the adoption of human rights into the development framework only really began in 1997 when the then UN SecretaryGeneral, Kofi Annan, propounded human rights mainstreaming as part of UN reform.36 This was buttressed by the United Nations Development Programme’s (UNDP) ‘Human Development Report 2000: Human Rights and Human Development’ which promoted human rights as an ‘intrinsic part of development’. Vice versa, development was framed as ‘a means of realising human rights’.37 This was followed by the UN Millennium Declaration, where world leaders recognised their ‘collective responsibility to uphold the principles of human dignity, equality, and equity at the global level’ by working for peace, security, and disarmament; development and poverty eradication; environmental protection; human rights, democracy, and good governance; the protection of the vulnerable; and the meeting of Africa’s needs.38 These themes were reiterated in the UN Secretary-General’s High Level Panel on Threats, Challenges, and Change report that explored plausible means for UN reform.39 This was again re-emphasised in the 2005 World Summit where the implementation of the Millennium Declaration was assessed. At the summit, Annan put forth a comprehensive strategy for global development and security through the respect of human rights in his report, ‘In Larger Freedom: Towards Development, Security, and Human Rights for All’.40 34

35

36

37 39

40

Philip Alston and Mary Robinson, ‘The Challenges of Ensuring the Mutuality of Human Rights and Development Endeavours’, in Philip Alston and Mary Robinson (eds.), Human Rights and Development: Towards Mutual Reinforcement (Oxford: Oxford University Press, 2005), 1 at 2. First UN Decade for the Eradication of Poverty, UN Doc. A/RES/51/178 (1996). For other documents and a summary of the achievements of the decade, see UN Department of Economic and Social Affairs (UNDESA), Poverty Eradication, at www.un.org/esa/socdev/ social/poverty/index.html. Kofi Annan, Renewing the United Nations: A Programme for Reform, Report of the Secretary-General, UN Doc. A/51/950 (1997). 38 UNDP, HDR 2000, supra note 31. UN Millennium Declaration, supra note 4. The importance of human rights and development for international security and the especial consideration of human welfare was the tone of the Report of the UN High Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565 (2004). For further exposition of how concern for the human person looks set to replace the prerogative of the sovereign state in international relations, see Anne-Marie Slaughter, ‘Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform’, 99(3) American Journal of International Law (2005) 619. Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (2005).

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Increasing numbers of development actors have since followed up on these political statements by adopting rights-based approaches. These include international organisations like the UNDP and UNICEF in the UN family; the Organisation for Economic Cooperation and Development (OECD); and non-governmental organisations (NGOs) like Care, Oxfam, and Forum-Asia; and developed nations such as the UK, Germany, Canada, Sweden, and other Nordic states in their foreign aid initiatives.41 International financial institutions (IFIs) like the World Bank Institutions, which formerly did not profess any overt human rights policy on development, have also become more amenable such operations, given the increasing calls for global responsibility and accountability. The World Bank and International Monetary Fund (IMF) have collaborated with states and other development partners to draft poverty reduction strategy papers (PRSPs) to encourage growth through macro-economic, structural and social policies.42 However, much confusion remains as to the form rights-based approaches to development actually take.43 The common criticism is that more is not done to translate rhetoric into action; that the use of human rights terminology is nothing more than window-dressing to perpetuate the inequitable status quo.44 The High Level Panel on Threats, Challenges and Change commented that ‘international institutions and States [had] not organised themselves to address the problems of development in a coherent, integrated way’, while the international organisations’ methods ‘mirror[ed] the fragmented sectoral approaches of Governments’.45 This has been reinforced by another UN high-level 41

42

43

44

45

For a non-exhaustive list of organisations and states which have (and have not) adopted human rights in their development programmes, see Organisation for Economic Cooperation and Development (OECD), Integrating Human Rights into Development: Donor Approaches, Experiences and Challenges (Paris: OECD Publishing, 2006), at 27. Developed nations’ sustainable development programmes integrating human rights can be found in their foreign policies. See e.g., British human rights policy, at www.fco.gov. uk/en/global-issues/human-rights. See e.g., Dana L. Clark, ‘The World Bank and Human Rights: The Need for Greater Accountability’, 15 Harvard Human Rights Journal (2002) 205; Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary Fund, and International Human Rights Law (Portland, Oregon: Hart Publishing, 2003). A comprehensive review of the contentions of human rights approaches to development is beyond the scope of this chapter. For insight into the integration problems, see Mary Robinson, ‘What Rights Can Add to Good Development Practice’, in Alston and Robinson (eds.), supra note 34, 25; and HDR 2000, supra note 31. Peter Uvin, ‘On High Moral Ground: The Incorporation of Human Rights by the Development Enterprise’, 17 Praxis: Fletcher Journal of Development Studies (2002) 1. UN High Level Panel, A More Secure World, supra note 39, para. 55.

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panel calling for the streamlining of UN processes to curtail wasteful practices in sustainable development programmes.46 The human rights in development undertaking therefore runs a real risk of stalling ‘when the powerful and rich voluntarily set out to collaborate and redefine the conditions of misery and exploitation for the rest of the world and fund the resulting solutions’.47 The synthesis of human rights into development operations demands nothing short of a radical overhaul of the whole development system by way of resource partners (both state and NGO), funding, projects, and internal administration.48 It must also be recognised that development’s exercise of human rights methodologies is fraught with difficulty. For instance, human rights’ absolutism easily triggers apparent rights ‘violations’ when compromise is part and parcel of development activity; it would be more feasible, therefore, to have a less sensitive threshold in carrying out human rights–development operations.49 In addition, Uvin has highlighted that the common practice of using human rights conditionality in exchange for aid has thoroughly failed. Not only has it not been properly implemented, it is plainly unethical in merely perpetuating great power imbalances and ‘destroy[ing] what it [seeks] to achieve’.50 Nevertheless, there is no doubt that human rights provides a framework for improving the development system if real effort and funding went into integrating the two.51 OHCHR has also published a handbook to clarify the doubts of UN development practitioners.52 Admittedly, there is no universally agreed rights-based approach as development actors are given significant leeway in policy formulation. However, there exist basic constituent elements which must be incorporated and the 2003 Common Understanding among UN Agencies has been lauded as a step in the right direction.53 It declares that programmes which only 46

47 48

49

50 52

53

Report of the Secretary-General’s High-level Panel on UN System-wide Coherence in Areas of Development, Humanitarian Assistance, and the Environment, Delivering as One, 9 November 2006. Uvin, supra note 44. Per Peter Uvin, Human Rights and Development (US: Kumarian Press, 2004), in Alston and Robinson, supra note 34, at 2. Peter Uvin, ‘Can Human Rights Make Aid Agencies More Accountable?’, Overseas Development Institute Spring Meeting Series 2005, 31 January 2005, paras. 6–7. 51 Ibid., para. 5. Ibid., paras. 8–12. OHCHR, Frequently Asked Questions on a Human Rights-based Approach to Development Cooperation (New York and Geneva: United Nations, 2006). Mac Darrow and Amparo Tomas, ‘Power, Capture, and Conflict: A Call for Human Rights Accountability in Development Cooperation’, 27 Human Rights Quarterly (2005) 471, at 516–36.

meeting each other half way

217

incidentally contribute to the realisation of human rights do ‘not necessarily constitute a human rights-based approach to programming’.54 To be worthy of the name, human rights approaches in development must help to realise the rights enshrined in the Universal Declaration of Human Rights and other international human rights treaties. The fundamental precept is the encouragement of real empowerment and autonomy of persons – development is no longer to be seen as international alms-giving. Thus, ‘duty-bearers’ must be helped to satisfy their obligations while ‘rights-holders’ enabled to realise their claims through strategic programmes.55 To ensure adherence to international human rights standards, programmes must be monitored throughout the implementation process and outcomes evaluated.56 As observed, a key theme of human rights in development is the need for accountability and enforcement to enable the exercise of obligations and claims. To facilitate this, rights-based approaches are to be thoroughly weaved throughout the governance structure – laws, policies, courts, and other means of non-judicial redress, the legislature, and community-based mechanisms – to render the highest efficacy. Translated into real terms, this entails making socio-economic rights such as the right to housing, health, food, and education justiciable.57 While there is much to be said for this, the fact remains that only a small minority of national courts like those in South Africa, India, and the Philippines have enforced economic, social, and cultural rights.58 For the large part, redress for socio-economic rights violations remains theoretical given the difficulty in persuading states to accept an expanded scope 54 55 57

58

Common Understanding among UN Agencies, supra note 9, at 1. 56 Ibid., at 3. Ibid. The justiciability of socio-economic rights such as food, health, and education has been strongly advocated. See e.g., Siddiqur Rahman Osmani, ‘Human Rights to Food, Health, and Education’, 1(2) Journal of Human Development (2000) 273; Sigrun Skogly, ‘Is There a Right Not to be Poor?’, 2(1) Human Rights Law Review (2002) 59; Michael J. Dennis and David P. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’, 98(3) American Journal of International Law (2004) 462; and Jackbeth K. Mapulanga-Hulston, ‘Examining the Justiciability of Economic, Social and Cultural Rights’, 6(4) International Journal of Human Rights (2002) 29. Also, Jean Dreze, ‘Democracy and the Right to Food’, at 45–64; and Varun Gauri, ‘Social Rights and Economics: Claims to Healthcare and Education in Developing Countries’, in Alston and Robinson (eds.), supra note 34, at 65–86. Other countries that have ruled on socio-economic rights include Canada, Venezuela, and Colombia. For the compilation of case-law, see International Network for Economic, Social, and Cultural Rights case-law database at www.escr-net.org/caselaw.

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of justiciable rights. Even for developing states, like ASEAN members, for instance, the justiciability of economic, social, and cultural rights is difficult primarily because of a comparative lack of a litigious culture as well as the absence of a strong rule of law framework. States are not the only ones who are finding difficulty in adjusting to rights-based approaches. International human rights organisations can sometimes be reluctant to defend socio-economic rights. The Executive Director of Human Rights Watch (HRW), Kenneth Roth, has voiced the practical hurdles his organisation faces, arguing that HRW’s specialisation is in civil and political rights and the present modalities of ‘name, shame, and blame’ are not given to defending socio-economic rights as effectively.59 If rights-based development approaches are causing so much strife at the policy and decision-making level, then transposing the human rights–development dimension onto Southeast Asia can only complicate the whole equation. Notwithstanding AICHR’s establishment and avowal to uphold socio-economic, cultural, and development rights, the human rights culture and rule of law in the region remains inexorably weak. There is at the domestic level unfamiliarity with the language of human rights and lack of working knowledge as to obligations, claims, enforcement, and accountability.60 The regional aversion to adversarial approaches in resolving human rights abuses compounds the problem and may even pre-empt state support for rights-based approaches in development. As a rule, the ratification of human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) or even the presence of similar constitutional provisions, is no indicator of a willingness to adjudicate on such rights.61 Although the

59

60 61

Kenneth Roth, ‘Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization’, 26(1) Human Rights Quarterly (2004) 63. An exchange on the topic ensued, see Leonard S. Rubenstein, ‘Response by Leonard S. Rubenstein’, 26(4) Human Rights Quarterly (2004) 879; Kenneth Roth, ‘Response to Leonard S. Rubenstein’, 26(4) Human Rights Quarterly (2004) 873; Mary Robinson, ‘Advancing Economic, Social, and Cultural Rights: The Way Forward’, 26(4) Human Rights Quarterly (2004) 866; and Katarina Tomasevski, ‘Un-asked Questions about Economic, Social and Cultural Rights from the Experience of the Special Rapporteur on the Right to Education (1998–2004): A Response to Kenneth Roth, Leonard S. Rubenstein, and Mary Robinson’, 27(2) Human Rights Quarterly (2005) 709. See also, Stephen J. Malby, ‘Education and Health: A Role for Private Actors in Meeting Human Rights Obligations?’, 6(3) International Journal of Human Rights (2002) 1. See Chapters 3, 4, and 5. International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966 (entry into force 3 January 1976), GA Res. 2200A (XXI), UN Doc. A/6316 (1966).

meeting each other half way

219

Philippines has begun the litigious route for socio-economic rights, it is unlikely that Indonesia, Thailand, or any other ASEAN state would follow suit in the near future.62 Another dilemma is posed if states oppose the implementation of rights-based development projects especially if they are not signatories of the corresponding human rights treaties. For instance, Malaysia has not ratified the ICESCR and in the current political climate it is unthinkable that the courts would even venture into ruling on similar areas. Simply put, the ASEAN states’ idea on what constitutes development does not correspond to the international understanding on the right to development or human rights in development. Be that as it may, the integration of human rights and development is an undeniable reality for ASEAN states and what AICHR will one day have to contend with. Indeed, this process has already been set in motion. In signing up to the Millennium Declaration, the UN General Assembly explicitly renewed their commitment for human rights and development, avowing to strive towards the attainment of the eight MDGs.63 The formulation of the MDGs was a deliberate attempt to prioritise definitive development objectives in a measurable and timebound format, as opposed to continuing in the vague fashion of ‘progressive realisation’.64 Moreover, the relationship between the MDGs and human rights is a close one, necessitating the use of ‘human rights norms and techniques . . . to promote the Goals’ lest the rhetoric of the . . . mainstreaming of human rights into development efforts [comes] too little’.65 Even more radically, some of the MDGs are said 62

63

64

65

This is based on the findings of the first phase of research on the business-related human rights issues in the ASEAN region. The author is part of the research team at the Lee Kuan Yew School of Public Policy, Centre on Asia and Globalisation, working on ‘Access to Remedies for Corporate-related Human Rights Impacts in Southeast Asia: The Role of Non-judicial Grievance Mechanisms in Dispute Resolution and Provision of Redress’ in collaboration with the Corporate Social Responsibility Initiative at the Kennedy School of Government, Harvard University. The research team has found that, in many ASEAN states, there is little redress for violations of economic, social, cultural, and development rights in the name of economic development. See Business and Human Rights in Southeast Asia, at www.caglkyschool.com/content/business-and-human-rights-southeast-asia. UN Millennium Declaration, supra note 4, Parts III (Development and Poverty Eradication) and V (Human Rights, Democracy, and Good Governance). Philip Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals’, 27(3) Human Rights Quarterly (2005) 755, at 756. See also About the MDGs: Basics, at www.undp.org/mdg/basics.shtml. Alston, ibid., at 757.

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to possess the force of customary international law.66 The OHCHR has emphasised this, going so far as to suggest that the MDGs should be seen as ‘part of a broader integrated framework of international human rights entitlements and obligations . . . although ensuring accountability for human rights requires a more extensive set of laws and institutions’.67 Based on the above premise that the right to development will gain standing among the existing body of human rights, it will thus be expedient to use the MDGs as a common benchmark to measure the progress of human rights in development in Southeast Asia. As before, the ASEAN countries surveyed will be limited to Indonesia, Malaysia, the Philippines, Singapore, and Thailand.

The five ASEAN states and the Millennium Development Goals What are the MDGs and how do they pertain to the five Southeast Asian states? They are essentially eight goals comprising eighteen subsidiary targets that strive to rectify the world’s most pressing development problems by 2015. In short, the MDGs are: Goal 1: Eradicate extreme poverty and hunger  Target 1: Reduce by half the proportion of people living on less that US$1 a day  Target 2: Reduce by half the proportion of people who suffer from hunger Goal 2: Achieve universal primary education  Target 3: Ensure that all boys and girls complete a full course of primary schooling Goal 3: Promote gender equality and empower women  Target 4: Eliminate gender disparity in primary and secondary education preferably by 2005, and at all levels by 2015 Goal 4: Reduce child mortality

66

67

For a discussion on this, Alston, ibid., at 771–4. Also, Gobind Nankani, John Page, and Lindsay Judge, ‘Human Rights and Poverty Reduction Strategies: Moving Towards Convergence?’, in Alston and Robinson (eds.), supra note 34, at 475–97. OHCHR, Frequently Asked Questions, supra note 52, at 8.

asean states and the millennium development goals 221

 Target 5: Reduce by two-thirds the mortality rate among children under five Goal 5: Improve maternal health  Target 6: Reduce by three-quarters the maternal mortality ratio Goal 6: Combat HIV/AIDS, malaria, and other diseases  Target 7: Halt and begin to reverse the spread of HIV/AIDS  Target 8: Halt and begin to reverse the incidence of malaria and other major diseases Goal 7: Ensure environmental sustainability  Target 9: Integrate the principles of sustainable development into country policies and programmes; reverse loss of environmental resources  Target 10: Reduce by half the proportion of people without sustainable access to safe drinking water  Target 11: Achieve significant improvement in lives of at least 100 million slum dwellers, by 2020 Goal 8: Develop a global partnership for development  Target 12: Develop further an open, rule-based, predictable nondiscriminatory trading and financial system; includes a commitment to good governance, development, and poverty reduction – both nationally and internationally  Target 13: Address the special needs of least developed countries (LDCs). This includes: tariff and quota-free access for LDCs’ exports; enhanced programme of debt relief for HIPCs and cancellation of official bilateral debt; and more generous official development assistance (ODA) for countries committed to poverty reduction  Target 14: Address the special needs of landlocked countries and small island developing states  Target 15: Deal comprehensively with the debt problems of developing countries through national and international measures in order to make debt sustainable in the long term  Target 16: In cooperation with developing countries, develop and implement strategies for decent and productive work for youth  Target 17: In cooperation with pharmaceutical companies, provide access to affordable essential drugs in developing countries

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 Target 18: In cooperation with the private sector, make available the benefits of new technologies, especially information and communications.68 While the MDGs are indubitably geared towards the poorest and most marginalised states, tackling the ‘debt problems of low and middle income developing countries’ is also on the on the agenda.69 How then do the MDGs impact on the state of human rights and development in the four middle-income countries of Indonesia, Malaysia, the Philippines, and Thailand, and the single high-income nation of Singapore? The published results for the five states from the report, ‘The Millennium Development Goals: Progress in Asia and the Pacific 2006’ (‘MDG Asia-Pacific Report 2006’), are charted in Table 6.1 below.70 While assessing the MDG attainment status, it must be borne in mind that the MDGs alone cannot ensure complete human development and human rights. The MDG Asia-Pacific Report 2006 stresses that though progress is a good sign, it is insufficient as ‘countries that are on track to achieve their targets can still have unacceptably high rates of, for example, poverty and mortality’.71 It is thus imperative to look at the absolute indicator values which give ‘real’ figures of deprivation and want.72 The report painted a general picture of the Asia-Pacific, noting that while the region as a whole is on course to achieve the majority of MDG targets by 2015 there are serious concerns pertaining to infant mortality, basic sanitation, and urban access to clean water.73 Of the five states highlighted here, Indonesia and the Philippines were the poorest performers. In fact, the report noted that these two states were among 68

69 70

71 72

73

Only goals and targets indicated. For a full list of indicators used to test the degree of attainment of the MDGs, see Millennium Project: Goals, Targets, and Indicators, at www. unmillenniumproject.org/goals/gti.htm. UN Millennium Declaration, supra note 4. para. 16. UN Economic and Social Commission for Asia and the Pacific (UNESCAP), UNDP, and the Asian Development Bank (ADB), Millennium Development Goals: Progress in Asia and the Pacific 2006 (Bangkok: United Nations, 2006). Only progress indicators are provided here. For full statistics, refer to the report. (Note: The Asia-Pacific MDG Report 2010/11 shows that slight improvements have been registered since the 2006 indicators were published. See UNESCAP, UNDP, and ADB, The Path to 2015: MDG Priorities in Asian and the Pacific [New York: UN, 2010], at 6.) Ibid., at 1. G. H. P. B. van der Linden, vice-president, Knowledge Management and Sustainable Development, Asian Development Bank, Remarks at the UNESCAP/SIAP/UNDP/ADB Workshop, Bangkok, 31 July 2006. Ibid., at 3.

Table 6.1 Status of Millennium Development Goals (MDGs) attainment for the five ASEAN states Goal (G), Indicator (I)

Indonesia

Malaysia

Philippines

Singapore

Thailand

(1) Proportion of population below US$1/day (G1, I1) (2) Prevalence of underweight children under 5 years of age (G1, I4) (3) Net enrolment ratio in primary education (G2, I6) (4) Proportion of pupils starting grade 1 who reach grade 5 (G2, I7) (5) Primary completion rate (G2, I7A) (6) Ratio of girls to boys in primary education (G9) (7) Ratio of girls to boys in secondary education (G9) (8) Ratio of girls to boys in tertiary education (G9) (9) Under-5 mortality rate (G4, I13) (10) Infant mortality rate (G4, I14) (11) HIV prevalence among pregnant women aged 15–24 years (age group changed to 15–49 years due to data availability problems) (G6, I18) (12) Prevalence rates associated with tuberculosis (G6, I21) (13) Death rates associated with tuberculosis (G6, I23) (14) Proportion of land covered by forest (G7, I25) (15) Ratio of area protected to maintain biodiversity to surface area (G7, I26) (16) Carbon dioxide emissions/capita (G7, I28) (17) Consumption of ozone depleting CFCs (OPD tons) (G7, I28) (18) Proportion of population with access to an improved water source – urban (G7, I30)

● ▼

▼ ● ● ● ▼ ● ● ▲

● ● ▼ ● ▼ ● ● ● ● ● ▼

▲ ▼ ▲ ▼ ● ● ● ● ● ● ▲

– – – – – – – – ● ● ▲

● – – – – ● ● ● ● ● ▲

● ● ▼ ●

● ● ▼ ●

● ● ▼ ●

● ● ▲ ●

● ● ▼ ●

▼ ● ▼

▼ ● ●

▼ ● ▼

● ● ●

▼ ● ●

▪

Table 6.1 (cont.) Goal (G), Indicator (I) (19) Proportion of population with access to an improved water source – rural (G7, I30) (20) Proportion of population with access to improved sanitation – urban (G7, I31) (21) Proportion of population with access to improved sanitation – rural (G7, I31)

Indonesia

▪ ▪ ▪

Malaysia

Philippines

Singapore

Thailand

●

▪

–

●

▼

▲

●

●

–

▪

–

●

Key: ● Early achiever: has already met target. ▲ On track: expected to hit the target by 2015. Off track/slow: expected to hit the target but after 2015. ▼ Off track/regressing: slipping backwards or stagnating. Source: UN Economic and Social Commission for Asia and the Pacific (UNESCAP), UNDP, and the ADB, The Millennium Development Goals: Progress in Asia and the Pacific (2006), at 4.

▪

asean states and the millennium development goals 225

those of ‘greatest concern’ and were ‘falling further behind’ due to negative scores on the progress index and latest status index.74 For a greater sense of comparison and the degree of severity, two other Southeast Asian countries within this ‘greatest concern’ category were Myanmar and Laos. While the MDG Asia-Pacific Report 2006 did not give detailed analysis of all the states surveyed, the Indonesian profile was highlighted on certain points. It was observed that despite some progress on many of its MDGs in the areas of poverty eradication, education, gender parity, and health, Indonesia continued to register sketchy results. While there was early elimination of the number of people who lived on less than US$1 a day, the rising number of underweight children undermined Goal 1. Moreover, the commendable improvement of those who managed to complete primary education was also mitigated by the regressing statistics for primary school enrolment and the proportion of those who reached Grade 5. This would severely affect future generations of the Indonesian workforce as young people would not be equipped with the necessary skills to find gainful employment for self-support, thus exacerbating the poverty cycle. The gender balance in schools was satisfactory on the whole except at the tertiary level. Basic health standards were seen to be improving well with positive signs for healthcare, infant and child mortality rates, and the rate of HIV prevalence among pregnant women, as well as tuberculosis prevalence and death rates. Nonetheless, it was stressed that the effective provision of water and sanitation was of the greatest urgency to further raise the standard of living, improve health, and reduce the risk of infectious diseases and death. Reflecting the rest of the Asia-Pacific scenario, Indonesia’s environmental practices also left much to be desired.75 The Philippines’ results for MDG attainment were somewhat similar to Indonesia’s on many points, including the fact that there was regression on the number of underweight children and those reaching Grade 5. Environmental standards for deforestation and carbon dioxide emissions as well as human security provisions for clean water and sanitation were also dismal. However, there were some positive signs that it is on track to reducing the proportion of those who live on less than US$1 a day and primary education figures are up.76 On a more positive note, Malaysia and Thailand were commended for making above-average progress (a status also shared by China and 74 76

To refer to both indices, see ibid., at 7. Refer to Table 6.1.

75

Ibid., at 3. Also, refer to Table 6.1.

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Vietnam). Malaysia has a good overall record, being an early achiever on most counts. However, its rate of primary school enrolment, HIV prevalence among young pregnant women, and environmental practices (including urban sanitation) did poorly and are projected as being unable to reach the targets even after 2015. Similarly, Thailand has had fair progress on all indicators except with respect to the environment in forest cover proportion and volume of carbon dioxide emissions. Singapore gave no data on the first eight indicators for poverty, education, and gender parity surveyed above. On the whole, the small state was making remarkable progress with early achievement on most indicators, and was on track to achieve the necessary degree of forest cover and reducing HIV prevalence among pregnant women. Apart from updating the progress status of the MDGs, the MDG AsiaPacific Report 2006 found that the countries with the worst scores were ‘not doing enough for themselves and not receiving enough assistance from developed countries’ to achieve better levels of attainment.77 A correlation was observed between the worst performing countries and low public spending on education and health.78 Citing Indonesia as an example of high vulnerability and serious threat of regression, it was noted that public expenditure on education only reached 1.1 per cent of the gross domestic product (GDP) in 2002 – ‘the lowest among the twenty-five countries for which there is sufficient data’. Again, other Southeast Asian counterparts with low public spending on health and education were Myanmar and Laos.79 In contrast, Malaysia – commended as a high achiever of the MDGs – spent more than 6 per cent of GDP on education in 2004.80 Development experts singled out increased health and education spending as the vital factor if development and human rights standards are to improve. Pietro Gennari, the UNESCAP’s Statistics Division head, stated: Much remains to be done if governments in the region are serious about delivering the MDG promises to their poor and to achieve sustainable development . . . At present, too many countries that score low on the progress or status of the education and health targets commit only a small proportion of their GDP to these sectors. And countries of most concern in the region are often among those not receiving enough from trade or aid.81 77 78 81

UN, MDG Asia-Pacific Report 2006, supra note 70, at 10. 79 80 Ibid., at 11. Ibid. Ibid., at 10–11. ‘Many Asian Countries Falling Short of MDG Targets, Report Says’, UNESCAP Press Release No. G/45/2006, 16 October 2006.

improving human rights and development

227

This echoes the view of other experts who propound socio-economic rights in health, nutrition, and education must be put into action if development is to see real gains.82 Another point that resounded throughout the MDG Asia-Pacific Report 2006 was the need for both domestic and foreign action to ensure good performers stay on track to attain the MDGs and beyond and for the poor performers to improve their development scores. The essential action required state responsibility – the active duty of developing nations to rectify the domestic situation and the simultaneous action of rich developed nations to furnish aid and other measures. In fact, more stress was laid upon the latter’s responsibilities. The report noted that while countries must carry out their primary duty towards the national population through ensuring good governance and specific legislation aimed at effecting development, such as compulsory education for both genders; the efforts of developing countries must be matched by the developed states by increased aid and elimination of trade and market barriers.83 It also observed that those countries whose MDG progress was slower than their Asia-Pacific counterparts (like the Philippines and Indonesia) ‘received less than 5 per cent of their gross national income (GNI) in official development assistance’.84 In addition, poor MDG attainment performers received ‘relatively little duty free access to developed countries’ markets’. Given the absolute numbers of needy people in such countries, only the provision of enormous amounts of aid and drastic measures to level international trading positions could bring about significant change.85

Improving human rights and development: how to get states to act on trade, aid, and good governance? The above recommendations are nothing extraordinary. This commonsensical remedy of ‘trade, aid, and good governance’ has been quoted umpteen times in the slew of annual economic and development reports by international agencies and consistently tabled at global trade meetings. Quite obviously, the clarion call goes unheeded. Neither have developed states effectively reduced global inequality by increasing aid and facilitating fair trade, nor have developing nations done more to

82 84

Supra note 59. Ibid., at 12.

85

83 MDG Asia-Pacific Report 2006, supra note 70, at 13. Ibid.

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ensure good governance and the rule of law. If logic is not enough to persuade countries to get their act together, perhaps the force of statistics backed by empirical and historical evidence of the detriment of global inequality and the benefits of governance on human rights and development can spur states into action. To that end, some conclusive results have been produced by three separate studies carried out by the United Nations Development Policy and Analysis Division (UNDPAD), Daniel Kaufmann of the World Bank Institute (WBI), and jurist Randall Peerenboom. Of course, no neat relationships linking human rights, development, and good governance can be guaranteed, but strong trends can certainly be identified. For instance, Peerenboom has attested to a causal link between wealth, governance, and the enjoyment of human rights, and Kaufmann’s groundbreaking study points to the tendency for human rights adherence to be accompanied by good governance. The UNDPAD study also reinforces this point. The relationship between aid, trade, economic growth, development, governance, and human rights is a complex one. As such, the necessity for state responsibility to procure this dynamic in a positive way will be explored below. Like before, the analysis will be with respect to Indonesia, Malaysia, the Philippines, Singapore, and Thailand. For a clearer picture of the national situations, Table 6.2 below provides some statistics for comparison.

Global and domestic inequality: the relationship between wealth, power, and development In the World Economic and Social Survey 2006: Diverging Growth and Development (WESS 2006), the UNDPAD published findings for global growth and development patterns during the period of 1960–2005.86 It painted an ominous picture of the world’s human development in the face of rising global inequality. It noted that if China and India were omitted, the absence of their combined mega-population, consisting of almost half the number of the world’s people, would display starkly how poorly the world economy was doing. Calamitous consequences on human security, human rights, and development would ensue if this 86

United Nations Department of Economic and Social Affairs (UNDESA), Development Policy and Analysis Division (UNDPAD), Development Strategy and Policy Analysis Unit (DSP), World Economic and Social Survey 2006: Diverging Growth and Development (New York: United Nations, 2006).

Table 6.2 National statistics of the five ASEAN states Indicator (year) (1) GNI per capita, Atlas method (current US$) (2009) (2) Income classification (2009)* (3) Loan eligibility (2009)** (4) GDP (current US$ bn) (2009) (5) GDP growth (annual %) (2009) (6) Inflation, GDP deflator (annual %) (2009) (7) Health expenditure (% of GDP) (2007) (8) Education expenditure (% of GDP) (2007) (9) Foreign direct investment, net inflows (BoP, current US$ bn) (2009) (10) Total debt service (% of exports, goods, services, and income) (2008) (11) Net official development assistance received (current US$ m) (2008)

Indonesia

Malaysia

Philippines

Singapore

Thailand

2,230

7,230

1,790

37,220

3,760

Lowermiddle IBRD 540.3 4.5 8.4 2.2 3.5

Uppermiddle IBRD 191.6 1.7 1.7 4.4 4.5

Lowermiddle IBRD 160.5 0.9 2.4 3.9 2.6

High

Lower-middle

4.9

1.6

1.9

– 182.2 1.3 1.8 3.1 3.2 (2009 figures) 16.8

IBRD 263.9 2.3 2.0 3.7 4.9 (2008 figures) 6.0

13.4

4.8 (2007)

15.5

–

7.7

1,200.0

158.2

60.9

–

620.5

*Income classification: economies are divided according to 2009 GNI per capita, calculated using the World Bank Atlas method. The groups are: low income, US$995 or less; lower-middle income, US$996–3,945; upper-middle income, US$3,946–12,195; and high income, US$12,196 or more. **Lending category: International Development Association (IDA) countries are those that had a per capita income in 2009 of less than US$1,165 and lack the financial ability to borrow from International Bank for Reconstruction and Development (IBRD). IDA loans are deeply concessional – interest-free loans and grants for programmes aimed at boosting economic growth and improving living conditions. IBRD loans are non-concessional. Blend countries are eligible for IDA loans because of their low per capita incomes but are also eligible for IBRD loans because they are financially creditworthy. Sources: World Development Indicators database; World Bank, 2010.

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trend were to continue.87 This was because the dangers were two-fold – the inequality between countries mattered as much as inequality within countries.88 Focusing first on the former, the report stated that global inequality meant that poorer countries were denied the credit-worthiness enjoyed by richer countries among the trading nations, thereby paving the way for the latter’s preferential access to capital markets.89 As increased participation in more markets made state economies less vulnerable to shifts in global commodity prices, this was a privilege poorer states seldom got to enjoy. Another area in which poorer countries lost out was in foreign direct investment. Quite obviously, countries with greater wealth and stable institutions were able to attract more investors due to lower risk ratings. However, this was again an environment that poorer states cannot provide effectively given their less diversified economies and export structures, and hence heightened vulnerability to global economic shocks.90 Furthermore, as economic and political power tended to go in tandem, developing countries had less clout with which to negotiate global trade rules.91 This is quite apparent from the repeated stalling of the Doha development agenda of the World Trade Organisation (WTO). Mooted in 2001, these multilateral trade talks are intended to eradicate trade barriers so that developing nations can compete more freely in the market.92 However, negotiations over agriculture and non-agricultural products, services, and intellectual property rights have constantly been dogged by the trenchant protectionist stands of rich developed nations. Even the latter’s willingness to cede certain concessions were conditional upon the exchange of ‘a pound of flesh’ – the widespread access to developing nations’ markets and other detrimental criteria.93 There were also signs that even if the Doha round would finally be concluded, minimal benefit would go to the small developing nations. The global presence of developed nations and big developing states like China, 87 90 92

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88 89 Ibid., at 1. Ibid. Ibid., at 1–2. 91 Ibid., at 2. Ibid. World Trade Organisation Ministerial Declaration, 14 November 2001, WT/MIN(01)/ DEC/1. For more on the Doha round, see www.wto.org/english/tratop_e/dda_e/dda_ e.htm. See e.g., Pitou van Dijck and Gerrit Faber (eds.), Developing Countries and the Doha Development Agenda of the WTO (New York: Routledge, 2006); Thomas W. Hertel and L. Alan Winters (eds.), Poverty and the WTO: Impacts of the Doha Development Agenda (Hampshire: Palgrave Macmillan; Washington, DC: World Bank, 2006).

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India, and South Africa assures that they would reap the most gains.94 On top of trading obstacles, developing nations faced technological barriers. Being less advanced, any attempt to upgrade innovation systems were hampered by the high costs of patent protection.95 On the second issue of domestic inequality, the WESS 2006 showed how social injustice and human deprivation at the national level denied disadvantaged people the necessary educational and health opportunities to climb out of poverty. Delving deeper into the data, the report formed a relationship between human development and economic growth. Empirical findings illustrated that health and education indicators (for example, life expectancy and infant mortality) improved at a higher rate according to increases in per capita income for less developed countries. This exponential advantage petered out beyond a ‘certain threshold of per capita income level – about US$3,000 in constant 2000 dollars’.96 Stressing that development and economic growth shared a symbiotic and mutually reinforcing relationship, the report also warned that equal promotion of both was imperative lest countries get stuck in a vicious cycle of either being ‘human development (HD)lopsided’ (strong human development coupled with weak economic growth) or ‘economic growth (EG)-lopsided’ (strong economic growth with weak human development).97 This development–human rights–national wealth nexus has also been recorded by Peerenboom. He stated matter-of-factly that: In the subtle and complex interplay of economic, politics, culture, law, and institutions in determining rights performance, what matters most is [national] wealth . . . if you want better performance across a range of rights and indicators of human well-being, show me the money’.98

Randall Peerenboom observed that infant mortality, life expectancy, and education improved correspondingly with the nation’s wealth, public expenditure on health and education, domestic income inequality, and the state of peace. He noted that Singapore did remarkably well as compared to the Philippines, Indonesia, and Thailand, which suffer 94

95 96 97 98

‘What Development Round?’, New York Times, 21 October 2007; ‘Development Aid Back in Focus at WTO as Talks Sour’, Reuters, 12 October 2007. UN, WESS 2006, supra note 86, at 2 and 26. Ibid., at 18. For a deeper analysis of the statistics, please refer to the report. Ibid., at 19. Randall Peerenboom, ‘Show Me the Money: The Dominance of Wealth in Determining Rights Performance in Asia’, 15 Duke Journal of Comparative and International Law (2004) 75, at 81.

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from poverty and internal strife as well as the ramifications of the 1997 Asian financial crisis.99 These findings can be corroborated by the MDG improvement levels given in Table 6.1 and national statistics provided in Table 6.2. Singapore, a high-income country with a good economic growth of 6.4 per cent and a low inflation rate of 0.5 per cent, spent proportionately more on public health (4.5 per cent of GDP) and education (3.7 per cent of GDP) than the other four countries. Hence, its MDG attainment rate was more rapid. This was especially apparent when compared to Indonesia, which only spent 3.1 per cent of GDP on health and 0.9 per cent of GDP on education. It also continued to struggle with an alarming inflation rate of 13.7 per cent. On the whole, its MDG attainment rate has often been singled out for being disappointingly slow. The difficulties inherent in global and domestic inequality can feed a vicious cycle in which the state does not earn enough revenue to fuel economic growth nor promote development, thus leading to even lower growth and ultimately widening both types of inequality.100 Either way, poor countries are the ultimate losers as the incumbent global system favours the rich and powerful. This struggle is no less true or urgent for the middle-income Southeast Asian countries surveyed here, despite a lower degree of severity.101 Even for Singapore, a high-income country, the struggle to maintain good economic growth continues through the constant race to upgrade skills and find new industries to exploit.102 During the period 1960–2001, Singapore joined the ‘rich country club’ and led the pack of Southeast Asian nations by being in the ‘first-tier newly industrialised economies’ (after Japan, South Korea, and Taiwan). The ‘second tier’ of newly industrialised economies was formed by Malaysia, Thailand, and Indonesia (ahead of Vietnam and China).103 The Philippines was the ‘only significant disappointment [as it] did not divest itself of its status as a lower-middle income economy’.104 Singapore and Malaysia were singled out for being within the virtuous cycle group of having good human development and economic growth records.105 However this virtuous cycle is not so easily attained or maintained. Even if the states are HD-centred, the vagaries of the international economy are largely beyond their control, such as the Asian financial 99 101 102

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100 Ibid., at 86–8. UN, WESS 2006, supra note 86, at 20. See Table 6.2 for the countries’ income classification. ‘Tom Plate and Jeffrey Cole interview Lee Kuan Yew’, UCLA Media Center, 9 October 2007, at www.asiamedia.ucla.edu/article-southeastasia.asp?parentid=79541. 104 105 UN, WESS 2006, supra note 86, at 17. Ibid., at 17. Ibid., at 19.

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crisis of 1997, where notably the Malaysian, Thai, and Indonesian economies among others melted down, or the 2007 global financial crisis, which hurt these export-driven economies. Inevitably, ASEAN states have relatively small economies, which are vulnerable to external forces such as rising petrol prices, and are largely tied to the US economy. Moreover, the rise of China and India threaten traditional industries. This has already been witnessed in Thailand where the Thai Textile Manufacturing Association cautioned that up to one-third of the textile workforce could be laid off as a result of the rising baht against the US dollar and the cheaper competition from China and Vietnam.106 These problems are exacerbated by the astounding foreign debt that amounts to billions of dollars. Debt servicing takes up sizeable amounts of national income as compared to the net inflows of aid and development assistance. For example, Indonesia faces a long-term debt service of 13.4 per cent with foreign direct investment (FDI) at US$4.9 billion, while official development assistance and official aid amount to only US $1.2 billion. The debt service (as a percentage of exports, goods, services, and income) of Indonesia, the Philippines and Thailand are relatively high, amounting to 13.4, 15.5, and 7.7 per cent respectively.107 As a result, middle-income nations like Indonesia, Malaysia, the Philippines, and Thailand do need some form of help to progress further. This is all the more so as empirical evidence increasingly shows that the ‘convergence’ theory of continued growth, which would enable developing countries to ‘catch up’ with developed economies, is proving to be a fallacy.108 Steady economic growth alone cannot enable developing nations to progress into developed ones without external ‘turbo-boosts’.

Eliminating inequality through trade, aid, and debt relief How then can global and domestic inequality be eliminated to ensure progress in human rights and development? If a healthy economy is a necessity to better human rights protection and development, and states are expected to have primary responsibility over their rights and development progress as well as cope with external forces, then a more level playing field must be afforded. It is unreasonable to expect developing states to establish good governance systems if they simply do not have 106 107

‘Economic Peril Awaits Thai Workers as Baht Rises’, SEAPSNet, 16 July 2007. 108 See Table 6.2 for statistics. UN, WESS 2006, supra note 86, at 3.

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the financial means or know-how to do so. In view of MDG 8 and its seven attendant targets, the developed world has some obligation towards developing states. If the latter are expected to attain the MDGs by increasing public spending on crucial sectors like health and education, implement effective economic policies, and encourage job creation, then developed nations must fulfil their part of the bargain by increasing aid, addressing debt problems, reducing trade barriers and the like. In this respect, trade, aid, and debt relief are touted to have the most profound effects on propelling development.109 Trade policies must be constructed to correct the inequitable system – there must be free and fair competition in the world’s markets without trade penalisation. There must also be the provision of aid for improving resource bases and providing funds to build up infrastructure, and debt relief to prevent crushing burdens on the poorest countries.110 In analysing the ramifications of unfair trade, the ‘Human Development Report 2005: Aid, Trade and Security in an Unequal World’ (HDR 2005) criticised as ‘perverse’ the rich country trade policies which prevented the developing nations’ goods from reaching the international market of consumers.111 No country is entirely self-sufficient, not least the five Southeast Asian countries stated here. Thus one of the primary ways to increase state revenue is to ensure continued participation in global markets as ‘trade can facilitate, promote, and sustain the development process [and is a] prerequisite for sustained growth’.112 Indeed, Malaysia, Thailand, Indonesia, and the Philippines have been considered ‘export success stories’ by which trade enabled these countries to work themselves out of poverty.113 However, these economies have to be nimble in diversifying and, if possible, move away from agriculture to maintain growth. Malaysia and Thailand are among those who have reduced their ‘proportion of exports based on natural resources and labour-intensive, low-tech goods’ and increased the output of high-tech goods like electronic and telecommunications equipment.114 Nonetheless, not being quick enough in moving away from the 109 111

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110 Ibid., at 25. Ibid. UNDP, Human Development Report (HDR) 2005: Aid, Trade and Security in an Unequal World (New York: United Nations Development Programme, 2005), at 10. UNDP, Asia-Pacific Human Development Report 2006: Trade on Human Terms: Transforming Trade for Human Development in Asia and the Pacific (Colombo: United Nations Development Programme, 2006), at 15 and 36. Ibid., at 32. See at 29–36 for a general overview on the impact of trade and oil prices on economic growth in East Asian states. Ibid., at 34.

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textile industry and being outpaced by Vietnam and China has caused some labour crises in Thailand.115 More importantly, it is unrealistic to expect middle-income countries to divert from agriculture so rapidly or on so large a scale. To be sure, this sector continues to contribute substantially to the national income of Indonesia, the Philippines, Thailand, and Malaysia.116 The high percentage of the workforce deployed in agriculture necessitates that these countries procure better trading conditions.117 Presently, these developing countries suffer from the insurmountable trade barriers erected by developed countries. In particular, OECD subsidies are noted to be very high for rice, sugar, milk, wheat, and meat – basic commodities critical to Asia.118 What is even more unfair is that the Uruguay trade talks (1984–96)119 permit the EU and US to give subsidies but prohibit the middle-income developing countries from doing the same.120 These subsidies have not only allowed the sale of agricultural products below cost price for the US and EU states, but also for the former to strengthen its position in maize, soybeans, and rice against Asian competitors.121 For instance, the US agricultural subsidies undercut the Philippine maize farmers, Indonesia soybean farmers, and Thai rice farmers during the 1990s. When prices fall, products are unable to compete with the cheaper imports flooding the domestic market. This is compounded by rising costs of production due to higher world prices for fertiliser, thus perpetuating a cycle of greater unemployment, poverty, and food insecurity.122 These detrimental effects are far-reaching even if the countries scramble to keep up. Although Thailand – a big rice producer – has taken measures for commercial rice production, millions of small farm holdings have nonetheless lost their land due to debt. Even more alarming is the fact that malnutrition is increasing. According to 2000 figures, 18 per cent of Thai households are malnourished.123 To remedy the situation, the HDR 2005 reiterated the international call for substantial reductions in state agricultural support by rich countries; prohibition on export subsidies; abolition of market barriers for developing country exports; the precedence for human development 115 117 119 120

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116 See supra note 106. UNDP, Trade on Human Terms, supra note 112, at 51. 118 Ibid., at 51 and 54. Ibid., at 55. The Uruguay Round, at www.wto.org/english/thewto_e/whatis_e/tif_e/fact5_e.htm. UNDP, Trade on Human Terms, supra note 112, at 55. See also UNDP, HDR 2005, supra note 111, at 10. UNDP, Trade on Human Terms, supra note 112, at 55–6. 123 For greater detail of unfair trading practices, see ibid., at 55–7. Ibid., at 58.

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in trade policy; and a ‘refocusing of services negotiations on temporary movements of labour’.124 To further rectify the trade imbalance, developing states insist on ‘aid for trade’ as a rightful accompaniment to multilateral trade liberalisation.125 They argue that while developing states are unable to benefit immediately from the open markets due to lack of trading surpluses, knowledge of market access opportunities, and infrastructure, the costs of opening will be felt at once. Thus, the ‘aid for trade’ package is needed to ease the transition until production and marketing capacities are optimised.126 The HDR 2005 added that current trading rules set by the WTO are prohibiting the same policies which helped East Asia to boom.127 This problem is exacerbated when developing states borrow from IFIs. These loans are tied with conditionalities such as trade liberalisation and subsidy abolition – all of which can further weaken the domestic economy.128 Hence, peremptory application of the Washington Consensus should be discouraged.129 More flexible approaches should be applied as ‘the politics needed to create [developmental] conditions are not reducible to simple formulas [and] need to be understood within the historical and institutional setting of a country’.130 This formed the basis of the former Malaysian prime minister, Mahathir Mohamed’s, polemic when he lambasted the IMF in the aftermath of the Asian financial crisis for wresting away states’ rightful control over the domestic economy and stipulating harmful policies that led to currency depreciation and firehouse sales of local assets to foreign companies.131 The 2002 Nobel laureate in economics, Joseph Stiglitz, also noted that China and other East Asian states have 124 126

127 128

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125 Ibid. Ibid. Aid for Trade, South Centre TRADE Policy Brief No.2, November 2005. See also, ‘Doha Development Agenda and Aid for Trade’, IMF and World Bank Trade Progress Report, 19 September 2005. UNDP, HDR 2005, supra note 111, at 11. UNDP, Trade on Human Terms, supra note 112, at 58–9. Besides agriculture, Asian developing states like Thailand are also disadvantaged in the fisheries and services industries. See at 66–71 and 107–17 respectively. The pros and cons of trade liberalisation are set out at 17 and 25. See e.g., Ben Fine, Costas Lapavitsas, and Jonathan Pincus (eds.), Development Policy in the 21st Century: Beyond the Post-Washington Consensus (New York: Routledge, 2001). UN, WESS 2006, supra note 86, at 23. An alternative to the ‘Washington Consensus’ termed the ‘Beijing-Seoul-Tokyo Consensus for development’ (BeST Consensus) has been suggested by Professors Keun Lee, John Mathews, and Robert Wade. See ‘Rethinking Development Policy: A New Consensus’, Financial Times, 19 October 2007. See e.g., IMF Policies in Asia Come Under Fire, Third World Network, at www.twnside. org.sg/title/fire-cn.htm; Revisiting How Malaysia Overcame the Financial Crisis, Third World Network, at www.twnside.org.sg/title2/gtrends1.htm. See also John W. Head,

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largely ignored the Washington consensus, delaying the removal of tariff barriers to promote growth. Against the advice of international economic institutions, they used industrial and trade policies to promote exports and global technology transfers during their expansion. Perhaps most importantly, unlike the Washington Consensus, equitable distribution was ‘an explicit part of their development strategies’.132 Other changes advocated to level the inequality include WTO policies for the services sector – especially in banking and insurance – as they presently discriminate against the less sophisticated developing nations. There is little opportunity for the temporary transfers of skilled and unskilled labour that developing nations can provide. This aspect is crucial as migrant work in a temporary contractual basis is an option that can significantly alleviate poverty in a relatively short time. Workers’ remittances can aid the nation on the road to development without the need for capital-intensive infrastructure.133 Moreover, the imposition of intellectual property laws makes technical transfers beyond the financial means of developing states.134 Refusal to comply with these intellectual property restrictions has already been witnessed in Thailand. The government has stood up against pharmaceutical companies like Abbott, using the ‘compulsory licensing’ rules of the WTO to reduce prices of patented anti-retroviral drugs to enable widespread public affordability. Twenty more patented drugs are pending similar compulsory licensing schemes.135 It was thus advocated that if the WTO could ‘exempt basic social services from the progressive liberalisation principle under the General Agreements on Trade and Services (GATS)’ and implement friendlier public health provisions through the Trade-Related Aspects of Intellectual Property Rights (TRIPS) policies.136 Similar action has been seconded by the World Health Organisation (WHO), which has

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‘Seven Deadly Sins: An Assessment of Criticisms Directed at the International Monetary Fund’, 52 University of Kansas Law Review (2004) 521. UNDP, Human Development Report (HDR) 2003: Millennium Development Goals: A Compact among Nations to End Human Poverty (New York: United Nations Development Programme, 2003), at 80. See also Renuka Mahadevan, ‘Growth with Equity: The Malaysian Case’, 13(1) Asia-Pacific Development Journal (2006) 27. United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Economic and Social Survey of Asia and the Pacific 2006: Energizing the Global Economy (New York: United Nations Economic and Social Commission for Asia and the Pacific, 2006), at 33. UNDP, HDR 2005, supra note 111, at 10. ‘Thailand: 20 More Drugs in Pipeline for Possible Compulsory Licences’, Intellectual Property Watch, 2 November 2007. UNDP, HDR 2003, supra note 132, at 156.

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urged for the balance to be struck between the need for pharmaceutical innovation and respect for intellectual property laws, and the needs of the poor.137 However, the above rectifications are unlikely to prevail. To circumvent the unrealised potential of the Doha development agenda, bilateral free trade agreements (FTAs) have since proliferated between the developing states and bigger economies.138 For instance, Singapore sealed an FTA with the US in January 2003, the Thailand–Japan FTA came into force in November 2007, and the US was hoping to conclude a deal with Malaysia in July 2008.139 Despite their popularity, it remains contentious how beneficial these agreements are as developing states may cede much more than what they can gain.140 The Thailand–Japan FTA was stridently opposed by the Thai public as it would allow Japan to dispose of large amounts of toxic waste like incinerated municipal, hospital, and industrial chemical wastes in Thailand.141 Additionally, bilateral FTAs have been criticised for impeding global attempts to lower trade barriers as they distract rich nations from focusing their energies on multilateral trade talks.142 Bilateral FTA participants, however, think differently. Singapore’s minister for trade and industry, Lim Hng Kiang, has insisted that bilateral, sub-regional and regional deals can complement a multilateral regime, saying, ‘My counter-image is: we want a global trading regime as epitomised by WTO and Doha, but every bilateral and every RTA [regional trade agreement] should be a brick building towards that potential’.143 Vital though it may be, trade cannot be the sole solution in fostering development and human rights. Investment in key infrastructure like civil institutions and public utilities, and vital sectors such as agriculture, sanitation, health, and education, must be made immediately if human lives are to improve. Moreover, these core investments are the foundations of economic growth and will lead to greater economic, social, and 137 138

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‘WHO Aims to Balance Drug Companies, Poor’, Associated Press, 5 November 2007. Jagdish N. Bhagwati and Arvind Panagariya, ‘Why the Trade Talks Collapsed’, Council on Foreign Relations Op-Ed, 7 July 2007. See United States–Singapore Free Trade Agreement, 6 May 2003 (entry into force 1 January 2004); Japan–Thailand Economic Partnership Agreement, 3 April 2007 (entry into force 1 November 2007). For more on bilateral FTAs, see www.bilaterals.org. Robert McMahon, ‘The Rise in Bilateral Free Trade Agreements’, Council on Foreign Relations Backgrounder, 13 June 2006. ‘Toxic Backlash to Thai–Japan FTA’, Asia Times, 21 February 2007. McMahon, supra note 140. ‘Asia-Pacific Trade Ministers Defend Bilateral Deals’, Reuters, 22 April 2007.

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cultural rights. It will be too late if states wait for economic growth to generate enough domestic savings to fund public spending.144 As seen above, Indonesia and the Philippines – countries most in danger of falling behind on their MDG commitments – receive less than 5 per cent of their GDP in aid.145 Thus, for the short term, aid geared towards development is necessary. The obligations of the recipient to use the money appropriately and donor states to make sustained contributions must be taken seriously.146 Aid should not be seen solely as developing states reneging on their duty to achieve the MDGs, but also as the fulfilment of the developed nations’ undertaking of MDG 8 in the concerted effort towards development. This has been explicitly agreed as the Monterrey Consensus of the International Conference on the Financing for Development and Paris Declaration on Aid Effectiveness attest.147 The Monterrey Consensus recognised that aid can help developing countries reach the requisite levels of domestic resource mobilisation and attract private investors – factors crucial for development.148 To that end, it was agreed that developed nations must keep their promise of reaching the aid target of 0.7 per cent of GNP as ODA, make ODA disbursement and delivery more flexible, rid conditionalities in aid, and enhance recipient countries’ ownership of ODA schemes.149 This was repeated in the Paris Declaration where the OECD nations vowed to bring about the realisation of the MDGs and fulfilment of the Monterrey promises by enhancing aid effectiveness.150 The OECD insisted that the Paris Declaration would bring about substantive changes in aid flows as it differed from previous international agreements. First, it was premised upon an action-orientated roadmap with twelve indicators to monitor aid effectiveness. These indicators included capacity-building strategies, predictable aid flows, and the untying of aid.151 Second, it is flexible and geared towards national priorities of the recipient state, not the donor country. This heightened local ownership of aid policies and execution, thus intensifying stakeholders’ desire to see real results. Third, a system of mutual accountability and transparency between 144 146 147

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145 UNDP, HDR 2003, supra note 132, at 145. See Table 6.2. UNDP, HDR 2005, supra note 111, at 75. Monterrey Consensus of the International Conference on the Financing for Development, 18–21 March 2002, UN Doc. A/CONF.198/11 (2002); Paris Declaration on Aid Effectiveness, 28 February–2 March 2005. 149 Monterrey Consensus, ibid., para. 39. Ibid., paras. 42–3. 151 Paris Declaration, supra note 147. Ibid., Section 3: Indicators of Progress.

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donor and recipient states on the use of aid would help to cement an efficacious working partnership.152 Unfortunately, a lot of these commitments remain unaccomplished. At present, there remains an unequal relationship between the aid recipients and donors. The former shoulders a greater burden with many strings attached, such as IMF monitoring and compliance with extensive conditions that may be incompatible with national goals. Aid thus becomes politically motivated and inflows are unpredictable.153 Conversely, donors can ignore their pledges to increase aid quantity and quality with impunity.154 According to 2004 figures, Japan and the US – two of the world’s largest economies – are unsatisfactory donors, giving less than 0.2 per cent of the gross national income. Scandinavian countries like Norway and Sweden, and other European states like the Netherlands and Portugal, are by far more generous, having reached or almost reaching the intended target of 0.7 per cent in aid donation.155 With an estimated shortfall of more than US$30 billion to achieve the MDGs by 2010, it is imperative that donor countries fulfil their promise of delivering 0.5 per cent of national income by 2010 and 0.7 per cent by 2015, otherwise developing states simply cannot improve welfare or procure economic growth on the scale required to achieve the MDGs.156 The HDR 2005 commented that since bilateral aid allocated directly by individual countries is approximately double that of multilateral aid allocated to concessional finance facilities, big industrial nations exert tremendous influence on prospects for closing the MDG financing gap as they dominate international aid flows.157 A powerful move to rectify this situation could be to entail the MDG 8 to be time-limited – preferably before 2015 to enable a quickening of the development process.158 Presently, the seven other goals and targets have to be achieved by 2015, if not earlier. Only MDG 8 remains conditional upon the rich countries’ own motivation. 152

153 154 155

156 158

Three Reasons Why the Paris Declaration will Make a Difference Significantly Increasing the Impact of Aid, at http://europeandcis.undp.org. UNDP, HDR 2005, supra note 111, at 76 and 79. Ibid., at 76–7. See UNDP, HDR 2005, supra note 111, at 85–6; UNDP, HDR 2003, supra note 132, at 147 for budgetary allocation by aid donors. 157 HDR 2005, ibid., at 76 and 88. Ibid., at 84–5. UNDP, HDR 2003, supra note 132, at 157. See also, Sakiko Fukuda-Parr, ‘Millennium Development Goal 8: Indicators for International Human Rights Obligations?’, 28 Human Rights Quarterly (2006) 966.

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However, simply increasing aid inflow does not conjure instantaneous efficacy.159 Aid needs to be regular so that public spending and investment can be sustained. States should not have to hold back from embarking on development projects because of fears that these will have to be abandoned unfinished if aid dwindles.160 It is important that regular inflows of aid are coupled with a public expenditure framework so that the state can set forth a range of short-, medium-, and long-term planning to achieve the MDGs, especially for health and education.161 Also, much of the aid needs to be untied from the borrowing conditions of the IFIs.162 The Philippine feedback on the efficacy of World Bank finance is fourfold: (1) it needs to be quicker and more responsive; (2) it should be delivered on time; (3) it must be flexible in helping the government manage monetary flows; and (4) the number of onerous conditions should be reduced. Philippine officials explained that regular cash flow to finance projects is more important to the government than the cost of securing grants and loans.163 Many of the fervent political avowals have come to naught even if the Monterrey Consensus has reversed the trend of declining aid and brought about significant debt forgiveness. It appears that the EU member states are the only countries that ‘might collectively achieve the 0.7 per cent target’; non-European donors remain significantly behind their promises.164 Additionally, considerable obstacles like effective ownership of aid and development programmes by recipient countries, lower transaction costs and aid unpredictability remain.165 Donor and recipient states have been exhorted to cooperate more closely to fulfil a ‘mutual action agenda’ to avoid overlapping projects, wastage, and divergent goals.166 159 160 161

162 163

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165 166

UNDP, HDR 2005, supra note 111, at 96. ‘The Non-Aligned Movement’, The Economist, 4 April 2007. UNDP, HDR 2005, supra note 111, at 97 and 99. For health and education spending, see at 81. Ibid., at 76 and 99. World Bank, Philippines: Client Perspectives on Elements of World Bank Support (Washington, DC: World Bank, 2006), para.25; World Bank, Thailand: Client Perspectives on Elements of World Bank Support (Washington, DC: World Bank, 2006); and Development Results in Middle Income Countries: An Evaluation of the World Bank’s Support at www.worldbank.org/oed. Ban Ki-moon, Follow-up to and Implementation of the Outcome of the International Conference on Financing for Development, Report of the Secretary-General, UN Doc. A/62/217 (2007), paras. 5 and 78. Ibid., paras. 6, 80, and 82. OECD, 2006 Survey on Monitoring the Paris Declaration: Overview of the Results (Paris: OECD, 2007), at 13.

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Of course, efforts by the developed nations in terms of aid and trade will be compromised if not balanced by corresponding efforts on the part of developing states. In other words, good governance is necessary. Apart from the donors’ onus, recipient developing states are expected to redouble efforts to ‘own’ the development process and prioritise policies so that results can be seen. Ideally, states will utilise the money where it is needed but proponents believe that some conditionality is ‘inevitable and desirable’ to maintain accountability.167 Aid should be managed under a streamlined and uncorrupted governmental structure rather than on a sporadic project basis since practical experience has proven that monetary allocation is more efficacious when executed by a central body than on a discrete project basis.168 The increased national ‘ownership’ over ODA projects allows enough autonomy for the government to use the money more flexibly, according to the country’s exigencies.169 Recipient states should also account to their own citizens (and donor states) on how the money is spent in public infrastructure, as well as provide clear national development plans, transparent budgets and, if possible, strict legislative scrutiny.170 Not only is this transparency beneficial to the people, it also increases its credit worthiness in the eyes of donor states, smoothing the way for future disbursements.

National responsibility for inequitable development and human rights Over and above responsible use of aid for development, macroeconomic policies and public administration must be carefully carried out for sustainable development. The five ASEAN states need to keep in mind several points in the short and medium term. Although 2006 global demand for electronics and commodities fuelled strong export growth of over 10 per cent for Indonesia, Malaysia, the Philippines, Singapore, and even Thailand (despite the post-coup political impasse), the continuing rise in oil prices threaten to stifle growth. It is also foreseen that the region will resource constraints because of insufficient infrastructural investment over the years.171 Guiding the national economy through these forecasted hurdles needs skilful management of monetary autonomy, exchange rate fluctuations, and capital account 167 169 171

168 UNDP, HDR 2005, supra note 111, at 100. Ibid., at 76 and 103. 170 Ibid., at 99. Ibid., at 100. UNESCAP, Economic and Social Survey of Asia and the Pacific 2007: Surging Ahead in Uncertain Times (New York: United Nations Economic and Social Commission for Asia and the Pacific, 2007), at 79 and 84.

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convertibility.172 Also, fiscal policies must be firm and clear to avoid conflicts of interest among the various economic engines. The five states are encouraged to take on more sophisticated operations in their financial sector – such as bond markets – to keep up with the global economy’s pace.173 The relevance of these schemes is acknowledged and some are already being discussed. For example, ASEAN states are planning to improve monetary cooperation.174 Inept administration as displayed in the past by the junta-installed government of Thailand should definitely be avoided. It initiated a number of policy ‘flip-flops’ like the retraction of capital controls and created much confusion over the Foreign Business Act, deterring even more foreign investors in the current political instability.175 The five Southeast Asian states would do well to be nimble in seeking new niches for economic growth and adapt to restructuring. In this, Singapore has been commended for maintaining growth by ‘strategic repositioning’ of its economy from manufacturing to services in information technology, pharmaceuticals and the finance industry.176 More generally, the five states might also want to consider the radical suggestion by Daniel Kaufmann regarding the effects of human rights adherence and good governance on development. Challenging traditional assessments of human rights, governance, and development, Kaufmann posited that an empirical study of the links between human rights, development, and governance was possible.177 Defining governance as ‘the set of . . . formal and informal institutions that determine how [governmental] authority is exercised . . . for the common good’, he set six indicators of its measurement. These were: (1) (2) (3) (4) 172 174

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176 177

voice and external accountability; political stability and lack of violence, crime, and terrorism; government effectiveness; regulatory quality; 173 Ibid., at 82. Ibid., at 84. ‘Monetary and Trade Cooperation in ASEAN and East Asia’, SEAPSNet, 9 April 2007. The Roadmap for Monetary and Financial Integration of ASEAN (RIA-Fin) includes the development of capital markets, integration of financial services, and promotion of bond markets, at www.aseansec.org/19588.htm. ‘Thailand May Hurt Itself with Nationalistic Protections in the Foreign Business Act’, SEAPSNet, 9 August 2007; ‘Thailand Scraps Capital Controls after Stocks Plummet’, International Herald Tribune, 19 December 2006. UNESCAP, Energizing the Global Economy, supra note 132, at 118–19. Daniel Kaufmann, Human Rights and Development: Towards Mutual Reinforcement, Conference paper for the Ethical Globalization Initiative and the New York University Center for Human Rights and Global Justice, 1 March 2004.

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(5) rule of law; and (6) control of corruption.178 These indicators sought to examine situations like (but not limited to) how different countries selected, monitored, and replaced governments, the state’s capacity to formulate and implement sound policies and deliver public services, and the respect of the rule of law by citizens and the state for the institutions that governed their mutual socioeconomic interactions.179 As a result of his global study, Kaufmann concluded that good governance yielded an impressive ‘three hundred percent dividend’ for development.180 There indeed existed a positive relationship between first generation (civil-political) and second generation (socio-economic and cultural) rights, and that governance was a ‘determinant of developing outcomes’.181 This was because the respect of civil-political rights increased transparency and public scrutiny, leading to less corruption, and thus improving the effectiveness of development aid and the enjoyment of socio-economic and cultural rights.182 Civil-political rights like voice and accountability were thus important and related to corruption and other governance factors; as such, they should not be overlooked in preference of emphasising development and socio-economic rights.183 Conversely, there was a need to integrate the corruption and rule of law dimensions of governance more closely with that of socio-economic rights and development.184 Judging by Table 6.3 below, Indonesia and the Philippines registered fairly low among the world’s states and have much to improve on if they want exponential results on development.185 Perhaps one of the most pressing issues they need to address is political stability to attract investment for development as they fare dismally in this area. Malaysia and Thailand, medium performers on the whole, still have much room for improvement on all six indicators. Singapore, having one of the best performances in governance, scores relatively poorly on voice and accountability – the critical factor of civil and political rights. Admittedly, Singapore, with its high growth and good human development 178 180

181 183 185

179 Ibid., at 4. Ibid., at 3–4. ‘How do Countries Score on Governance?’, World Bank News and Broadcast, 15 September 2006. 182 Kaufmann, supra note 177, at 1. Ibid., at 15. 184 Ibid., at 22–3. Ibid., at 1. Only the five Southeast states’ statistics are placed.

conclusion

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Table 6.3 Governance ranking (percentile rank) Indicators

Indonesia Malaysia Philippines Singapore Thailand

Voice and accountability Political stability/no violence Government effectiveness Regulatory quality Rule of law Control of corruption

48.3

31.8

45.5

34.1

34.6

24.1

46.7

10.8

90.1

14.6

46.7

79.5

50.0

100.0

59.5

42.9 34.4 28.1

60.0 65.1 58.1

52.4 35.4 27.1

100.0 92.5 99.0

61.9 50.9 51.0

Source: World Bank (2009).

standards, was an ‘aberration’ to the direct relationship concluded for civil-political rights, good governance, and growth.186

Conclusion From the above exposition, several things are clear about the right to development in relation to ASEAN and AICHR. First, it is evident that however much the right to development is claimed by ASEAN and other developing states as a ‘third generation’ right that purports to synthesise all human rights and one that ought to be claimed against the developed nations under MDG 8, or that UN agencies keep exhorting that positive aid and trade practices should be upheld to equalise the differences between the developed and developing world, the truth is that the right to development does not yet have actual normative status to compel the sought-after action from the international community.187 186 187

Supra note 180. At the eighth session of the Working Group on the Right to Development, Cuba pronounced on behalf of the Non-Aligned Movement (NAM) that no practical effect has been given to the Declaration on the Right to Development. It championed that there persisted the lack of autonomy over developing states’ policies and onerous conditions for aid, unfair trading practices, and the heavy cost of technology transfers. It reminded that MDG 8 was fundamental for realising the other seven MDGs. See Report of the Working Group on the Right to Development on Its Eighth Session, 14 March 2007, UN Doc. A/HRC/4/47* (2007).

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the unexplored aspect of human rights

Second, the connection between human rights and development is indubitably tenuous. This is evidenced by the roundabout way the right to development is related to the human development-human rights nexus. Even while the intermingling of these two discourses is fettered with contradictory principles and practices, the correlation between human rights and the global development project of the MDGs is forged. Nonetheless, there is merit in identifying the common link and employing rights-based approaches in multilateral and bilateral development projects. The UN has even set in place a High-Level Task Force and a Working Group to speed up the real and substantive presence of the right to development. Thus far, they have explored themes including rights-based approaches, the MDGs (especially MDG 8), and global health partnerships in relation to the right to development.188 Third, the distinct human rights and development communities are only just starting to understand and utilise mutual terminologies and modes of operation in a practical manner. One positive effect of the move beyond theory and policy is that while development is not a ‘right’ in the traditional sense – that is to say, possessing justiciability and an ability to uphold claims of rights-bearers against duty-holders – the emergent development–human rights discipline is paving the way for the greater recognition of socio-economic rights. It may be that in time to come socio-economic rights will be justiciable in many more countries. In the meantime, however, the right to development is unlikely to progress very much as the developed nations’ adherence to MDG 8 in terms of aid and trade does not look promising. If such are the potential outcomes of the human rights–development evolution, then ASEAN states should bear in mind that future invocation of the right to development may entail the accession and adherence to international human rights treaties such as the two 1966 International Covenants if they have not already done so. More daringly, the right to development may very well oblige them to accept the adjudication of socio-economic rights. All these possibilities pose considerable problems to ASEAN and AICHR when they want to develop further the right to development. It is important for ASEAN states, especially Brunei, Cambodia, Laos, Myanmar, and Vietnam, to recognise this fact. If the 188

For more on the High- Level Task Force on the Implementation of the Right to Development, at www2.ohchr.org/english/issues/development/taskforce.htm; Working Group on the Right to Development, at www2.ohchr.org/english/issues/development/groups/index. htm. See also, Margot E. Salomon, ‘The Significance of the UN Task Force on the Right to Development’, World Bank Development Outreach (October 2006).

conclusion

247

right to development they always champion is to be realised, then there must be simultaneous practice of all the other human rights too, as the right to development is concomitant with civil-political, socioeconomic, and cultural rights. The right to development does not exist in a legal vacuum, impervious to the demands of proper human rights and development practices. Furthermore, although the ‘right to development’ is important to ASEAN states, the region lacks institutional tools to discuss the parameters of this right in great detail. ASEAN states have a patchy record of ratifying and adhering to international human rights treaties and their national constitutional protections. The weak rule of law culture is an obstacle to their embrace of international human rights law more fully. For now at least, ASEAN states need to rely on the avenues available to them in aid, trade, foreign direct investment, and sound governance to ensure sustainable and equitable development, and the welfare of the general population to ensure that human rights in all its forms are promoted and protected. For AICHR, and indeed other international and non-governmental organisations working to help human rights take root in the region, it would need to encourage state practice of all human rights and help to define the right to development as experienced in the ASEAN context of human rights and development to generate the requisite opinio juris such that the right to development can gain more ground to become a substantive right in the future.

7 Sustaining AICHR’s substantive empowerment: implementation, integration, and international law In the six preceding chapters, we traced the development of the international human rights discourse, uncovered the roots of the Association of Southeast Asian Nations (ASEAN) member states’ suspicions of the global human rights enterprise as an impingement upon their closely guarded sovereignty, and finally witnessed how the gradual interaction between human rights and ASEAN brought about the eventual establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR). Acknowledging that although AICHR in its initial phase of its mandate has not been able to promote and protect human rights of an international standard as it is supposed to, one believes that AICHR’s establishment was not a mere window-dressing exercise for ASEAN. ASEAN wants to transform into a credible regional organisation that abides by the rule of law and upholds the norms of the international legal order, and that includes human rights. Moreover, while human rights progress can be obstructed and delayed, it cannot be averted or deflected. Once set in motion, societal and political change will occur in ASEAN societies so as to procure, in due course, a bettering of human rights standards. This would come about through governmental and grassroots transformation through the passage of time. Therefore, to keep ASEAN’s institutionalisation of human rights throughout the region on track, there are three core principles that AICHR, in the execution of its duties, must bear in mind. These are, namely, the implementation of human rights norms, integration of a human rights culture into ASEAN societies, and the development of international human rights law at the ASEAN regional level.

Implementing human rights norms Very clearly, we have seen that while AICHR is established, many ASEAN states remain averse to the imposition of external scrutiny of its human rights record. This is especially so for the ASEAN states not surveyed 248

implementing human rights norms

249

here in this book – Brunei, Cambodia, Laos, Myanmar, and Vietnam. As analysed in Chapter 2, while the ‘Asian values’ posited by ASEAN (and other Asian) states during the 1990s furore are no longer being raised by its original proponents – for instance, Malaysia and Singapore are now amenable to AICHR. Nonetheless, one must be aware that the threat of the Asian values debate is rearing its head again through other ASEAN states. This is especially true for the less developed members because of the comparative lack of debate of contemporary human rights principles and practices. Moreover, the roots of discontent against the institutionalisation of human rights through the tying of democracy and human rights conditionalities to foreign aid continue to hold true especially for aid-receiving states. The underlying sentiment of some ASEAN states towards AICHR is that their national position on human rights must be adhered to, their internal affairs are sacrosanct, and that human rights are a ‘Western’ liberal construct and not the ‘universal and inherent’ human values that they are purported to be. Myanmar and its ironic ‘Roadmap to Democracy’, compromised elections, and the continued imprisonment of opposition politicians is a case in point.1 As explained in Chapter 4, human rights have had a tenacious struggle at the ASEAN level for at least fifteen years – ranging from the disinterested ministerial statements in the early 1990s to the then Thai foreign minister (now ASEAN Secretary-General) Surin Pitsuwan’s attempts to garner support for participatory regionalism and flexible engagement among the ASEAN members. Nonetheless, many ASEAN states were (and still are) averse to the dilution of their sovereignty and were adamant that there be non-interference in their domestic affairs by their neighbouring states.2 It was not until the 2000s that human rights initiatives coalesced through the efforts of civil society at the grassroots levels as well as the engagement of officials at the state level, and that by then democratic transitions were already underway and had brought with them powerful mechanisms of social change and awareness of ‘people power’ even if not of human rights per se. The changing political climate within ASEAN states enabled human rights to be spelt out for the very first time in the Vientiane Action Programme (VAP) in 2004, listing that human rights were to be upheld alongside democracy in the 1

2

Myanmar Roadmap to Democracy: The Way Forward, presentation by H. E. U. Khin Maung Win, Deputy Minister for Foreign Affairs of the Union of Myanmar, Myanmar Institute of International and Strategic Studies, 27–8 January 2004. Charter of the Association of Southeast Asian Nations, 20 November 2007 (entry into force 15 December 2008).

250

sustaining aichr’s substantive empowerment

ASEAN Security Community – the first of three pillars of the ASEAN Community comprising the security, economic, and socio-cultural priorities.3 The VAP aspirations for human rights, including the establishment of institutional protections for the rights of women, children, and migrant workers, were eventually elaborated in the ASEAN Political Security and Socio-Cultural Community Blueprints.4 It is imperative, therefore, as AICHR operationalises, for it to carry out its mandate substantively as enunciated in the Terms of Reference (TOR) for AICHR,5 the two Blueprints, and its yet-to-be unveiled Work Plan.6 Now that ASEAN wants to effectively become a rules-based organisation, all its express undertakings should be executed. There should not be the previous practice where the terms of unimplemented regional agreements were carried over to successive ASEAN agreements.7 As it stands, ASEAN has many human rights and human rights-related agreements, frameworks, and action plans which AICHR can use in the exercise of its mandate. Added to this would be the international human rights treaties that ASEAN states are parties to and have obligations towards. Legal continuity was expressly catered for in the Charter where it stated that ‘all . . . agreements, concords, declarations . . . and ASEAN instruments which have been in effect before the entry into force of this Charter shall continue to be valid’.8 It would be a good start if AICHR takes care to help the region build up good governance and the rule of law; combat corruption; establish a network among existing human rights mechanisms, including national human rights institutions (NHRIs); spearhead human rights public education; and cooperate with the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC),9 and the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and 3

4

5

6

7 9

Vientiane Action Programme (VAP), Laos, 29 November 2004, para. 1.1(iii), and Annex 1, para. 1.1.4. ASEAN Political-Security Community Blueprint, Thailand, 1 March 2009; ASEAN SocioCultural Community Blueprint, Thailand, 1 March 2009. Terms of Reference (TOR) of the ASEAN Intergovernmental Commission on Human Rights, 20 July 2009, art. 14. ‘AICHR Drafts Rules of Procedure and Five-Year Work Plan’, Human Rights Herald, July 2010. 8 See Chapter 4 generally. ASEAN Charter, supra note 2, art. 52(1). Terms of Reference of the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC), Thailand, 24 October 2009; Speech by Vietnamese Prime Minister Nguyen Tan Dung, at the Inauguration of the ASEAN Commission on Promotion and Protection of the Rights of Women and Children (ACWC), Hanoi, Vietnam, 7 April 2010, at www.aseansec.org/24478.htm.

integrating a human rights culture into asean

251

Promotion of the Rights of Migrant Workers (ACMW),10 to protect vulnerable groups including women, children, people with disabilities, and migrant workers. To further enable AICHR to promote and protect human rights according to international standards, ASEAN and AICHR must begin to set the rightful boundary between the ‘ASEAN Way’ tenet of noninterference and human rights. AICHR should demarcate clearly that where human rights violations are committed, the ‘non-interference in internal affairs rule’ should not hold. Whatever the TOR might now stipulate, investigation and redress for victims of human rights violations are clear obligations for a human rights institution to carry out, intergovernmental or not, and should be gradually eased into the mandate of AICHR.11 According to general international law, states have to respect and uphold human rights and there should not be a contrary practice of this rule.12

Integrating a human rights culture into ASEAN societies Through the implementation of human rights policies, a human rights culture can slowly be integrated into ASEAN and in individual national societies. As is apparent, the ASEAN region is hardly homogeneous and widely differing levels of human rights acceptance abound, making it difficult to achieve the consensus needed for ASEAN decisions. In detailing how the five ASEAN states of Indonesia, Malaysia, the Philippines, Singapore, and Thailand dealt with the onset of human rights in their societies, Chapter 3 revealed how the human rights experiences each of these ASEAN states has had since the post-war years of nationbuilding influences its present attitude towards AICHR as well as how the national human rights environment was built up. These five states were chosen as they displayed a more active participation in regional human rights discussions as well as within the national sphere, as compared to the other five ASEAN members of Brunei, Cambodia, Laos, Myanmar, and Vietnam. The individual human rights histories of Indonesia, Malaysia, the Philippines, Singapore, and Thailand revealed 10

11 12

ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW): Work Plan, Singapore, 15–16 September 2008; ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, Cebu, Philippines, 13 January 2007. TOR, supra note 5, para. 9.6. Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art. 1.

252

sustaining aichr’s substantive empowerment

clearly that they were the driving forces behind the collective effort on human rights in the years leading up to the ASEAN Charter and AICHR’s establishment. The states which struggled painfully towards democratisation with public uprisings, priding themselves on ‘people power’, and whose societies insist on high levels of media liberty – Indonesia, Malaysia, the Philippines, and Thailand – are unsurprisingly the ones which now possess NHRIs and a strong sense of human rights at the grassroots/civil society level. While Singapore displays a comparatively cautious attitude towards human rights, it nonetheless can share institutional tools and best practices of governance, low graft, and transparency that can not only contribute to the efficacy of AICHR but also that of the NHRIs. Vice versa, through the interaction with AICHR and the regional NHRIs, Singapore might also gradually warm to the idea of setting up a national human rights commission. Through such mutual exchanges, the integration of a human rights culture within ASEAN societies would strengthen and grow. ASEAN’s human rights endeavours would ring hollow if international standards were not strived towards by AICHR or national responsibility to ensure adherence to treaty obligations upheld. In this aspect, external help is vital to integrating human rights into ASEAN so that deviation from international standards can be minimised. In comparing ASEAN initiatives with those at the United Nations (UN) Asia-Pacific meetings for the establishment of regional human rights mechanisms in Chapter 5, the similarities and coherence of ideas between the international and ASEAN regional level are encouraging.13 The conclusion of ASEAN-level meetings on human rights concurred with the UN Asia-Pacific discussions on factors essential to the proper functioning of human rights systems – such as the need for human rights public education, good governance and the rule of law, the need for substantive action, the need for proper respect of development and socio-economic rights, as well as the encouragement of the establishment of NHRIs. Nevertheless, it is recognised that to a large extent, the recommendations of these UN and ASEAN regional meetings remain theoretical, hence they should, like the ASEAN directives, be put into action without undue delay. It is also noted that while NHRIs are emphatically recommended they are in actual fact hampered in the course of their work – a not 13

Office of the High Commissioner for Human Rights (OHCHR), Regional Office for Southeast Asia, at http://bangkok.ohchr.org.

integrating a human rights culture into asean

253

infrequent occurrence for the four NHRIs in the ASEAN region. It thereby recommended how the Principles relating to the Status of National Institutions (‘The Paris Principles’) can be better abided by ASEAN states through the respect of the NHRIs’ independence on matters such as funding, powers of investigation, and the appointment of commissioners.14 That said, it is recognised that improvements can only be urged upon states with NHRIs while it remains an uphill task (and one that needs considerable governmental resolve as well as public support) to persuade the ASEAN members without such commissions to establish one. As a firmer human-rights culture takes shape in the ASEAN region through concerted human rights efforts at the national, regional, and UN levels, the next phase of dramatic human rights transformation would likely occur in the more conservative ASEAN states. While Indonesia, Malaysia, the Philippines, Singapore, and Thailand all went through tumultuous nation-building processes and their experiences slowly honed human rights awareness, it is uncertain how this phenomenon would emerge in Brunei, Laos, Cambodia, Vietnam, and Myanmar. Perhaps with AICHR’s work in integrating human rights into every ASEAN society, instead of dramatic changes procured by ‘people power’ as witnessed in Indonesia, the Philippines, and Thailand, what we would see in here is nuanced internal change through successive generations of officials and civil society as they forge ‘transgovernmental alliances’.15 The political, generational, and societal changes within Indonesia, Malaysia, the Philippines, Singapore, and Thailand have enabled a greater space for engagement. In time to come, as Brunei, Cambodia, Laos, Myanmar, and Vietnam become familiar with the operations of human rights through AICHR activities, this freer space to engage, discuss, and work on human rights would also be instituted within their national societies. In this arena, state and non-state human rights stakeholders would then be able to operate as ‘transnational norm entrepreneurs’ by mobilising the instruments for lasting internal change.16 14

15

16

Principles Relating to the Status of National Institutions (The Paris Principles), GA Res. 48/134, UN Doc. A/RES/48/134 (1993). Jenia Iontcheva Turner, ‘Transnational Networks and the International Public Order’, in Russell Miller and Rebecca Bratspies (eds.), Progress in International Law (Leiden; Boston: Martinus Nijhoff Publishers, 2008), 415. Monica Schurtman, ‘The Challenges of Evaluating NGO “Success” in Cross-Border Rights Initiatives’, in Miller and Bratspies (eds.), ibid., at 358.

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sustaining aichr’s substantive empowerment

Developing international human rights law at the ASEAN regional level Apart from activating the implementation of human rights agreements and integrating a human rights culture into the ASEAN environment, what ASEAN must do as AICHR evolves is to eventually develop a regional legal framework for human rights. Currently, many of the human rights documents ASEAN relies on, apart from international human rights conventions, are non-binding agreements. The TOR, Blueprints, and the ASEAN Declaration on Human Rights that is slated to be drafted are all soft law. With every five-year review of AICHR, civil society should, in keeping with its ideal that an ASEAN regional mechanism for human rights meets international standards, keep petitioning for investigation and enforcement powers to be added to AICHR’s mandate.17 As the human rights culture develops domestically and regionally, it is not unforeseeable that such competences will be added in due course. Furthermore, even while ASEAN member states insist that AICHR’s modalities suit regional exigencies, human rights stakeholders in ASEAN should persist in proposing that AICHR develops into a system comparable to the three other regional human rights institutions, complete with a human rights convention, commission, and court.18 This would entail the formalisation of the ASEAN Declaration on Human Rights into the ASEAN Convention on Human Rights, the ASEAN Intergovernmental Commission on Human Rights into the ASEAN Commission on Human Rights, and the establishment of the ASEAN Court of Human Rights such that international human rights law is firmly established within ASEAN. This would then fit into the broader international legal framework that is slowly taking shape in ASEAN as it works towards achieving the rule of law in the region.19 17 18

19

TOR, supra note 10, para. 9.6. MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism), Position Paper on the Proposed ASEAN Human Rights Body, 9 September 2008. ASEAN has not generated much law apart from its founding treaty – the Bangkok Declaration, the ASEAN Charter, and some economic and security agreements. For the most part, the status of many ASEAN agreements is unclear. Termed agreements, declarations, treaties, memoranda of understanding, etc.: the names of these documents is not indicative of the extent of the binding nature of the text within. I.e. some treaties act more like soft law, while some declarations (e.g., the Bangkok Declaration) have the nature of treaties. There is currently a major project undertaken by the Centre for International Law, National University of Singapore, to map the ASEAN agreements and investigate their legal nature, status, and level of state adherence to find out the extent to which the rule of law exists in ASEAN and the degree to which international law

developing asean international human rights law

255

In the longer term, AICHR also needs to look closer into how it can better articulate and uphold the socio-economic, cultural, and development rights ASEAN states so dearly prize. In Chapter 6, a closer look into ASEAN states’ oft-attested primary concern of development and human rights unveiled that while development rights are indubitably important, ASEAN states have not actually stated clearly what it is that this right should entail and how it can be effectively claimed. This is of course in part a situational lacuna, for although the Declaration for the Right to Development was signed in 1986, the nexus between human rights and development remains most unclear.20 The exact parameters of the duties and rights generated by the right to development are only just being worked out by both the human rights and development disciplines and the balance is an uneasy one. One thing is for certain, however, that the claim that the right to development as a ‘third generation’ right that purports to synthesise all human rights and one that ought to be claimed against the developed nations holds no sway. UN Special Rapporteur Philip Alston has nevertheless helpfully drawn some links between the Millennium Development Goals (MDGs) and human rights, and it is this aspect of the ‘right to development’ that ASEAN states might like to take note of.21 The evolving international discourse on the right to development and its links to economic, social, and cultural rights points out that developing states should be responsible for their own national development through prudent fiscal policies, trade, and investment; and that the developed states should simultaneously have obligations in furthering the MDGs by correcting trade imbalances by boosting aid, curbing quotas, and reducing subsidies. Perhaps the most controversial criterion for ASEAN states, if they do wish to exercise the right to development in future, is that the relationship between human rights and development may call into play the need for accession and adherence to international human rights treaties such as the International Covenants of 1966, if they have not already done so,

20 21

is being generated in the region, bringing about integration through the law, at http://cil. nus.edu.sg/research-projects/asean. See also Simon Chesterman, ‘Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person’, 12 Singapore Year Book of International Law (2008) 199; Eugene Tan, ‘The ASEAN Charter as “Legs to Go Places”: Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia’, 12 Singapore Year Book of International Law (2008) 171. Declaration on the Right to Development, 4 December 1986, A/RES/41/128 (1986). Philip Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals’, 27(3) Human Rights Quarterly (2005) 755.

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sustaining aichr’s substantive empowerment

as the right to development is meant to advance the respect for civil, political, economic, social, and cultural rights. More daringly, the right to development may very well oblige ASEAN states to accept the adjudication of socio-economic rights. All these possibilities for the time being pose considerable hurdles to ASEAN’s embrace of the right to development. Despite the importance of this right, it is uncertain to what extent the member states would ever agree to such intrusive action. Presently, much of the prescriptive trajectory of ASEAN’s institutionalisation of human rights through AICHR remains conjecture. Whatever the real and potential measures that can be exercised by AICHR awaits its full operationalisation upon the disclosure of its Work Plan and the actions it carries out during the first five-year review period. While it is common to write off AICHR as ineffective and unable to achieve the necessary human rights protections needed by the ASEAN peoples, a more positive outlook would not be amiss. ASEAN’s human rights journey as a regional institution and as a grouping of individual states has been long and difficult. It now enters a new phase as AICHR takes its first steps, and it is to this that many in the ASEAN region are looking towards. Despite all the obstacles, AICHR did manage to be established, general regional human rights awareness can be said to be emerging, and state and non-state human rights proponents are persevering to help AICHR evolve into an institution that can promote and protect human rights through international law.

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INDEX

Abhisit Vejjajiva, 106, 151 ABRI, or Angkatan Bersenjata Republik Indonesia (Armed Forces of the Republic of Indonesia), 80, 81, 82, 83, 85 Abu Ghraib, 58 Aceh, separatist movement in, 81, 86, 88, 89, 141, 149 Acharya, Amitav, 147 ACHPR (African Charter on Human and Peoples’ Rights, 1986), 55–7 ACHR (American Convention on Human Rights), 54–5 ACMW. See ASEAN Committee on Migrant Workers ACWC. See ASEAN Commission for the Promotion and Protection of the Rights of Women and Children adjudication of development rights, 217–19, 246 Africa, regional human rights organisations in, 55–7 African Charter on Human and Peoples’ Rights (ACHPR, 1986), 55–7 African Court on Human and People’s Rights, 56 African Human Rights Commission, 56 African Union (AU), 55–7 agriculture, continuing importance to development of, 235–6 Ahmad, Fazli, 117 AI. See Amnesty International AICHR. See ASEAN Intergovernmental Commission on Human Rights

AICOHR (ASEAN-ISIS Colloquium on Human Rights), 18, 164, 166 aid as means of fostering development rights, 227–45 AIPO (ASEAN Inter-Parliamentary Organisation), 26, 70, 147, 165 AJI (Alliance of Independent Journalists), 88 Alatas, Ali, 2, 145 Albar, Syed Hamid, 122 Aliran Kesefaran Negara, 115, 118 Alliance of Independent Journalists (AJI), 88 Alston, Philip, 97, 255 American Convention on Human Rights (ACHR), 54–5 American Declaration on the Rights and Duties of Man (1948), 54 Amity and Cooperation in Southeast Asia, Treaty of (TAC), 1976, 4, 145 Amnesty International (AI) on death penalty in Singapore, 128 in Malaysia, 119 state experience of human rights issues, documentary evidence for, 76, 177 on Thailand, 107 Amsterdam, Treaty of (1997), 53 Anand Panyarachun, 103 Angkatan Bersenjata Republik Indonesia, or ABRI (Armed Forces of the Republic of Indonesia), 80, 81, 82, 83, 85 Annan, Kofi, 186, 214 anti-terrorism. See terrorism and international human rights law

286

index Anwar, Dewi Fortuna, 164 Anwar Ibrahim, 109, 113, 114, 115 APA (ASEAN People’s Assembly), 18, 165 Apartheid, Convention against (1973), 44. See also South Africa APF (Asia-Pacific Forum of National Human Rights Institutions), 191, 204 Aquino, Benigno, 94 Aquino, Corazon, 93, 94 armed conflicts, law of, and human rights law, 30 Arroyo, Gloria Macapagal, 15, 92, 93, 94, 97, 100, 156 ASA (Association of Southeast Asia), 144 ASCPOA (ASEAN Security Community Plan of Action), 18 ASEAN. See Association of Southeast Asian Nations ASEAN Charter, Article 14, 4–5, 140, 155–7, 171, 172, 173 ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC) AICHR’s relationship to, 162 foundation of, 143 implementation of international human rights norms in ASEAN region via, 250 Working Group promotion of, 170, 171, 172, 174 ASEAN Committee on Migrant Workers (ACMW) AICHR’s relationship to, 162 formal commission yet to be established for, 143 implementation of international human rights norms in ASEAN region via, 251 Working Group promotion of, 171, 172, 173, 174 ASEAN Court of Human Rights, need to establish, 179, 254 ASEAN Declaration on Human Rights AICHR drafting of, 157, 159, 176, 177 formalisation into Convention, 179, 254

287

ASEAN Inter-Parliamentary Organisation (AIPO), 26, 70, 147, 165 ASEAN Intergovernmental Commission on Human Rights (AICHR), 17–19, 139–80 active protection or promotion of human rights not yet engaged in by, 161 ACWC and ACMW, relationship to, 162 ASEAN Charter, Article 14, 4–5, 140, 155–7 ASEAN Declaration on Human Rights, drafting of, 157, 159, 176, 177 ASEAN Political-Security and SocioCultural Community Blueprints, 157, 158, 160, 175, 176, 179, 187, 250, 254 civil society and NGOs, 160, 161, 163–7, 179 complex relationship between ‘ASEAN Way’ and human rights, 144–7 consolidating institutionalisation of human rights law via, 22–3, 248–56 development of human rights theory for Southeast Asia and, 6 development of international human rights law at ASEAN regional level, 254–6 development rights and, 218, 219 documentary intentions of, 76 establishment of, 4–5, 157 fiscal and logistical problems, 143 formalisation process, 179, 254 future responsibilities and tasks of, 176–80 growth of human rights consciousness within ASEAN, 151–7 implementation of international human rights norms by, 248–51 NHRIs, working with, 179, 205 norm change, ASEAN resistance to, 147–51

288

index

ASEAN Intergovernmental Commission on Human Rights (AICHR) (cont.) participatory regionalism and flexible engagement, moves towards, 148–51 procedural competencies regarding, 142 Rules of Procedure and Work Plan, drafting of, 157, 159, 161, 250 state representatives to, 160, 175 state sovereignty, ASEAN stress on, 141 structure, function, and actions of, 157–62 TOR, 157, 158, 160, 161, 175, 179, 187, 194, 250, 251, 254 Track 2 and Track 3 levels of action on, 163–7 VAP, 154–5, 159, 176 will to establish and uphold, 140–2 Working Group and (See Working Group for an ASEAN Human Rights Mechanism) ASEAN-ISIS, 18, 163–5, 169 ASEAN-ISIS Colloquium on Human Rights (AICOHR), 18, 164, 166 ASEAN People’s Assembly (APA), 18, 165 ASEAN Plan of Action for Children (1993), 152 ASEAN Political-Security and SocioCultural Community Blueprints, 157, 158, 160, 175, 176, 179, 187, 250, 254 ASEAN region, human rights in. See human rights institutionalisation in ASEAN region ASEAN Security Community Plan of Action (ASCPOA), 18 ASEAN Vision 2020, 152, 155, 164, 170, 171 Asia-Pacific Forum of National Human Rights Institutions (APF), 191, 204 Asian financial crisis of 1997, 6, 83, 93, 113, 153, 232, 236

‘Asian values’ debate, 1, 6–8, 13, 24, 147, 249 Association of Southeast Asia (ASA), 144 Association of South East Asian Nations (ASEAN). See also individual state members, and entries at ASEAN agreements generated by, 177, 254 Charter, Article 14, 4–5, 140, 155–7, 171, 172, 173 convergence with UN (See convergence of UN and ASEAN on human rights issues) diverse political orientations of members, 146 establishment of, 140, 144 growth of human rights consciousness within, 151–7 human rights institutionalisation in (See human rights institutionalisation in ASEAN region) norm change, resistance to, 147–51 participatory regionalism and flexible engagement, moves towards, 148–51 self-determination and noninterference, shared regional principle of, 145–7 three community pillars of, 154–5, 161, 250 Track 2 and Track 3 levels of action, influence of, 163–7 Association of Women for Action and Research (AWARE), Singapore, 134 AU (African Union), 55–7 AWARE (Association of Women for Action and Research), Singapore, 134 Badawi, Abdullah, 110, 114–22 Bali Concord II, 154 Bangkok Conference and Declaration (Regional Meeting for Asia of World Conference on Human Rights 1993), 2, 70, 147, 151

index Banharn Silpa-archa, 103 Berlin Conference on Central Africa, General Act of (1885), 30 Berlin, Treaty of (1878), 29 Bhumibol Adulyadej (Thai king), 106 bilateral free trade agreements (FTAs), 238 Bill of Rights British (1689), 28 Indonesian, 85 international, 32–42, 60, 185 (See also International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights) Philippine, 95 Blueprints, ASEAN Political-Security and Socio-Cultural Community, 157, 158, 160, 175, 176, 179, 187, 250, 254 Britain. See United Kingdom Brunei civil and political rights, importance of adhering to, 246 culture of human rights in, 253 external scrutiny of human rights record, need to accept, 249 security measures compared to Malaysian ISA, 116 study not focusing on, 11, 72 Brussels, General Act of (1890), 30 bumiputra policy (positive discrimination in favor of indigenous Malay), Malaysia, 110–12, 117, 119–22 Burma. See Myanmar Bush, George W., 58 Cambodia civil and political rights, importance of adhering to, 246 culture of human rights in, 253 ECCC (Extraordinary Chambers in the Courts of Cambodia), 27 external scrutiny of human rights record, need to accept, 249 NHRI, plan for, 197

289

study not focusing on, 11, 72 Vietnamese invasion and occupation of, 68 Canada development rights integrated into human rights framework, 215 OSCE (Organization on Security and Cooperation in Europe), 53 capital punishment in Singapore, 128–9 Care, 215 Carter, Jimmy, 57 Carver, Richard, 198 CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984), 45, 84, 127 CCAs (common country assessments), 208 CEDAW, 1979. See Convention on the Elimination of All Forms of Discrimination against Women Centre for Independent Journalism Malaysia, 115 CERD, 1965. See Convention on the Elimination of All Forms of Racial Discrimination Chang Peng-chun, 37 Charter of Fundamental Rights of the European Union (2000), 53 Chatichai Choonhavan, 103 Chavalit Yongchaiyudh, 103 Chee Soon Juan, 132 children ACWC, AICHR’s relationship to, 162 ASEAN Plan of Action for Children (1993), 152 CRC, 1989 (See Convention on the Rights of the Child) Declaration against Trafficking in Persons Particularly Women and Children (2004), 153 Declaration on the Commitments for Children in ASEAN (2001), 153 increase in regional protections, 153 NHRI regional cooperation on human trafficking, 194

290

index

Chile, Pinochet coup in (1973), 44 China ASEAN’s efforts at cooperation with, 153 Dumbarton Oaks conference (1944) proposal on self-determination and equality, 33, 68 MDG attainment, 225 rising development and industrialisation in, 228, 231, 233 textile industry in, 233, 235 Washington Consensus ignored by, 236 wealth, power, and development, relationship between, 232 Chong Kah Kiat, 121 CHRP (Commission on Human Rights of the Philippines), 16, 40, 75, 95, 96, 177, 193, 194, 201, 202 Chuan Leekpai, 103, 104, 150 civil and political rights importance of, 244, 246–7 privileged over development rights, 13, 43, 66–8, 206, 209, 212 civil society and NGOs. See also specific organisations AICHR and, 160, 161, 163–7, 179 in ASEAN region generally, 8–10, 136 civil and political rights privileged over development rights by, 68 development rights and, 215, 218 domestic human rights measures, impact of, 183 historical involvement in international human rights community, 34, 59–60 in Indonesia, 81–5 in Malaysia, 110, 118, 136 in the Philippines, 94, 98 in Singapore, 123, 134 in Thailand, 101–9 Track 3 levels of action in ASEAN, 163–7 Working Group principle of collaboration with, 169 Cold War, 42

civil and political rights privileged over development rights during, 67 democracy associated with human rights during, 14, 43, 58, 68 development of, 39 dictatorships supported as bulwark against communism, 58 McCarthyism, 39, 57 UN system in, 43–9 colonialism ASEAN region’s emphasis on state sovereignty and, 68 Chinese proposal at Dumbarton Oaks (1944) and, 33 Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960, 40 effects of, 15 Indonesia, decolonisation of, 40, 78–9 in Malaysia, 40, 111 Second World War and, 33 Singapore’s decolonisation and separation from Malaysia, 111, 124 Thailand never colonised, 102 UDHR, decolonisation with reference to, 40 Commission on Human Rights of the Philippines (CHRP), 16, 40, 75, 95, 96, 177, 193, 194, 201, 202 commission versus ombudsman format for NHRIs, 199 common country assessments (CCAs), 208 Common Understanding among UN Agencies on the Human Rights Based Approach to Development Cooperation (2003), 208, 216 community pillars of ASEAN, 154–5, 161, 250 Conference on Security and Cooperation in Europe (CSCE), 53

index Confucian thought ‘Asian values’ debate and, 7, 13 UN Charter and international Bill of Rights, foundation of, 37 Congo, US sanctions against, 58 Congress of Vienna (1815), 29 consolidation of human rights institutionalisation in ASEAN region, 22–3, 248–56 development of international human rights law at ASEAN regional level, 254–6 external scrutiny of human rights record, need to accept, 248–51 formalisation process, 179, 254 implementation of international human rights norms, 248–51 integration of human rights culture into ASEAN Societies, 251–3 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), 45, 84, 127 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) ACWC mandate to uphold, 162, 170 ASEAN move towards full implementation of, 152 ASEAN region states’ adherence to, 74 in historical development of international human rights law, 45, 60, 66 in Indonesia, 84, 87 in Malaysia, 117 in the Philippines, 97 ratification by all ASEAN states, 153 in Singapore, 130 in Thailand, 106 Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965) in historical development of international human rights law, 40, 44 in Indonesia, 84 Malaysian bumiputra policy and, 117, 119

291

in Thailand, 106 Convention on the Political Rights of Women, 1952, 38 Convention on the Prevention and Punishment of the Crime of Genocide (1948), 38, 130 Convention on the Rights of the Child (CRC, 1989) ACWC mandate to uphold, 162, 170 ASEAN move towards full implementation of, 152 ASEAN states’ adherence to, 74 development operations, social awareness in, 213 in historical development of international human rights law, 45, 60, 66 in Indonesia, 84, 87 in Malaysia, 117 in the Philippines, 98 ratification by all ASEAN states, 153 in Singapore, 66, 127, 130 in Thailand, 106 Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) (1973), 44. See also South Africa convergence of UN and ASEAN on human rights issues, 19–20, 181–205 development rights, international move towards acceptance of need for, 10–11, 183, 186, 190 domestic measures, impact of, 182, 192–7 establishing NHRIs in ASEAN states without them, 197–202 First Regional Conference on Building Networks (2006), 182 increasing effectiveness and functionality of NHRIs, 182 at international UN meetings, 183 national plans of action, 188–90, 194, 204 official cooperation between existing NHRIs, 193–7

292

index

convergence of UN and ASEAN on human rights issues (cont.) UN Regional Arrangements for AsiaPacific, 181, 182, 185, 187, 252 Working Group, efforts of, 182 Council of Europe, 50–4 counter-terrorism. See terrorism and international human rights law CRC, 1989. See Convention on the Rights of the Child criminal atrocities, international prosecution of, 14, 27, 48, 60 CSCE (Conference on Security and Cooperation in Europe), 53 Cuba, on development rights, 245 culture of human rights, integrating, 251–3 Cumaraswamy, Param, 113, 132 Datuk Seri Nazri Aziz, 114, 118 Datuk Yap Pian Hon, 116 Daw Aung San Suu Kyi, 156 death penalty in Singapore, 128–9 debt servicing and debt relief, 233, 236 Declaration on the Commitments for Children in ASEAN (2001), 153 Declaration on the Elimination of Violence against Women in the ASEAN Region (2004), 154 Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960, 40 Declaration of Independence, US (1776), 28, 61, 62 Declaration on the Right to Development (1986), 207, 211–12, 255 Declaration of the Rights of Man and Citizen, France (1789), 28, 61, 62 Declaration on Social Progress and Development (1969), 210 Declaration against Trafficking in Persons Particularly Women and Children (2004), 153 democracy ASEAN members, diverse political orientations of, 146 Cold War, associated with human rights during, 14, 43, 58, 68

dictatorships supported as bulwark against communism, 58 international human rights as postwar Western-liberal-based versus natural or universal value system, 12 NHRI establishment linked to development of, 199 participatory regionalism, support for, 150–1 Denmark’s abstention on UN Declaration on the Right to Development (1986), 212 development of international human rights law at ASEAN regional level, 254–6 development rights, 20–2, 206–47 accession and adherence to other international human rights treaties and, 246–7, 255 agriculture, continuing importance of, 235–6 AICHR and, 218, 219 in Bangkok declaration, 183 civil and political rights, importance of adhering to, 244, 246–7 civil and political rights privileged over, 13, 43, 66–8, 206, 209, 212 debt servicing and debt relief, 233, 236 Declaration on the Right to Development (1986), 207, 211–12, 255 defined, 206 elimination of inequality for purposes of, 233–42 in Europe, 51 generational rights theory, 209 historical development of concept of, 209–13 industrialised nations’ aversion to, 212 integration into human rights discourse, 213–20, 246 international move towards acceptance of need for, 10–11, 183, 186, 190, 206 judicial enforcement of, 217–19, 246

index MDG and, 14, 21, 67, 69, 185, 207, 219–27, 255 (See also Millennium Development Goals) national responsibility for inequitable development and human rights, 242–5 NHRI regional cooperation on, 196 normative status, continuing lack of, 245 operationalisation, need for, 207, 246, 255–6 trade, aid, and good governance as means of fostering, 227–45 UN, formation of, 35 in Vienna declaration, 184 wealth, power, and development inequality, relationship between, 228–33 diplomatic Track 2 action in ASEAN, 163–7 Djamin, Rafendi, 160, 161 Doha Round of WTO talks, 11, 70, 230, 238 domestic human rights measures, impact of, 182, 192–7 domestic responsibility for inequitable development and human rights, 242–5 Dunant, Henri, 31 East Timor (now Timor Leste), separatist movement in, 81, 82, 88, 141, 149 ECCC (Extraordinary Chambers in the Courts of Cambodia), 27 economic and social rights. See development rights economic safety nets, ASEAN introduction of, 153 economic statistics for five founding ASEAN states, 229 education in human rights, 155, 158, 190, 203 England. See United Kingdom ESC (European Social Charter), 51, 68 Estrada, Joseph, 93, 100 ethnicity. See race and ethnicity

293

Europe/European Union (EU) agricultural subsidies, 235 aid provided by, 240, 241 Charter of Fundamental Rights of the European Union (2000), 53 Council of Europe, 50–4 CSCE, 53 development rights in, 51 human rights in, 52 OSCE, 53 the Philippines, technical assistance in curbing human rights abuses in, 97 regional human rights organisations in, 50–4 state sovereignty in, 51 European Commission, Court, and Convention of Human Rights, 50–4, 67 European Court of Justice, 52 European Social Charter (ESC), 51, 68 Extraordinary Chambers in the Courts of Cambodia (ECCC), 27 fair trade as means of fostering development rights, 227–45 FAO (Food and Agriculture Organization), 36, 49–50 financial crises Asian financial crisis of 1997, 6, 83, 93, 113, 153, 232, 236 global financial crisis of 2007, 233 financial statistics for five founding ASEAN states, 229 First Regional Conference on Building Networks (2006), 20, 182 First World War, 30 Focus on the Global South, 166 Food and Agriculture Organization (FAO), 36, 49–50 foreign aid as means of fostering development rights, 227–45 Foreign Assistance Act of 1961 (US), 57 Forum Asia, 166, 215 ‘The Four Freedoms’, 66

294

index

France Declaration of the Rights of Man and Citizen (1789), 28, 61, 62 Indo-China, decolonisation of, 40 free trade agreements (FTAs), bilateral, 238 free trade as means of fostering development rights, 227–45 FTAs (free trade agreements), bilateral, 238 Fuzi, Tan Sri Ahmad, 172 GATS (General Agreements on Trade and Services), 237 GDP (gross domestic product) statistics for five founding ASEAN states, 229 gender issues. See women’s issues General Agreements on Trade and Services (GATS), 237 generational rights theory, 209 Geneva Conventions, 31, 38, 49 Gennari, Pietro, 226 genocide Convention on the Prevention and Punishment of the Crime of Genocide (1948), 38, 130 in Liberia, Rwanda, Sudan, and Somalia, 47, 56 Germany, development rights integrated into human rights framework in, 215 Ghent, Treaty of (1713), 29 global financial crisis of 2007, 233 GNI (gross national income) statistics for five founding ASEAN states, 229 Goh Chok Tong, 131, 132 good governance development rights, as means of fostering, 227–45 implementation of international human rights norms in ASEAN region via, 250 rankings for five founding ASEAN states, 245 Great Britain. See United Kingdom gross national income (GNI) and gross domestic product (GDP) statistics

for five founding ASEAN states, 229 Grotius, Hugo, 62 Guatanamo Bay, 58 Gus Dur (Wahid, Abdurrahman), 77, 84, 85 Habibie, Bacharuddin Jusuf, 77, 84–5, 88 Hague Peace Conferences (1899 and 1907), 31 Haiti, US intervention of 1994 in, 47 Hamid, Usman, 88 Hamm, Brigitte, 210, 212 Hanoi Plan of Action (HPA, 1998), 152 Hatta, Mohammed, 78 Helsinki Final Act (1975), 53 Henkin, Louis, 6, 34, 64 High Level Panel on Threats, Challenges, and Changes, UN report of, 186, 214, 215 historical development of international human rights, 12–15, 24–71. See also Cold War; United Nations; Universal Declaration of Human Rights ASEAN region, hesitancy of, 60–9 ‘Asian values’ debate and, 24 Chinese proposal on selfdetermination and equality, rejection of, 33, 68 civil and political rights privileged over development rights, 13, 43, 66–8, 206, 209, 212 coloured peoples and women, specific exclusion of, 31 criminal atrocities, international prosecution of, 14, 27 development rights, concept of, 209–13 international Bill of Rights, 32–42, 60, 185 Islamic fundamentalism and terrorism, crackdown on, 14, 27 minorities, early humanitarian protections for, 29 NGOs, role of, 34, 59–60

index as post-war Western-liberal-based versus natural or universal value system, 12, 61–6 pre-modern foundations, 28–32 regional organisations, developing role of, 50–7 religious toleration, early treaties guaranteeing, 29 unilateral use of human rights by US, 56 Hobbes, Thomas, 12, 61 Holland. See Netherlands HPA (Hanoi Plan of Action, 1998), 152 HRW. See Human Rights Watch human rights education, 155, 158, 190, 203 human rights institutionalisation in ASEAN region, 1–23 AICHR, 17–19, 139–80 (See also ASEAN Intergovernmental Commission on Human Rights) Asia-wide human rights mechanism, cultural and political barriers to, 1–3 change in international attitudes towards, 10–11 consolidation of, 22–3, 248–56 (See also consolidation of human rights institutionalisation in ASEAN region) convergence of UN and ASEAN, 19–20, 181–205 (See also convergence of UN and ASEAN on human rights issues) development of international human rights law at ASEAN regional level, 254–6 development rights, 20–2, 206–47 (See also development rights) formalisation process, 179, 254 framework of human rights in ASEAN, 5–12 historical background, 12–15, 24–71 (See also historical development of international human rights)

295

integration of human rights culture into ASEAN Societies, 251–3 state experience and, 15–17, 72–138 (See also state experience of human rights issues, and entries for Indonesia, Malaysia, the Philippines, Singapore, and Thailand) state sovereignty issues and civil society efforts, 8–10 (See also state sovereignty) states focused on, 11, 72 sub-regional systems, argument for establishing, 3 Human Rights Watch (HRW) on development rights, 218 on the Philippines, 96 state experience of human rights issues, documentary evidence for, 76, 177 human trafficking. See also children; women’s issues Declaration against Trafficking in Persons Particularly Women and Children (2004), 153 NHRI regional cooperation on human trafficking, 194 humanitarian law and human rights law, 30 Hume, David, 12 Hussein Onn, Tun, 112 Hussein, Saddam, 48 hybrid ombudsman/commission formats for NHRIs, 199 ICCPR, 1966. See International Covenant on Civil and Political Rights ICESCR, 1966. See International Covenant on Economic, Social and Cultural Rights ICRC (International Committee of the Red Cross), 31, 119 ICRMW (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990), 45, 195

296

index

ILO. See International Labour Organization IMF (International Monetary Fund), 215, 236, 240 implementation of international human rights norms in ASEAN, 248–51 India development rights, judicial enforcement of, 217 rising development and industrialisation in, 228, 231, 233 South Africa accused of discrimination at first UN session by, 36 Indonesia, 77–91 ABRI, 80, 81, 82, 83, 85 agriculture in, 235 AICHR, as chair of, 160 AICHR representatives, 160 aid, need for, 239 ASEAN Charter, ratification of, 157 Asian financial crisis of 1997 in, 83, 233 Bill of Rights, 85 CEDAW and CRC in, 84, 87 civil society and popular support for human rights in, 81–5 compared to other ASEAN nations, 136–8 culture of human rights in, 252, 253 current state of human rights in, 77–8, 87–91 debt servicing and debt relief, 233 decolonisation of, 40, 78–9 development rights, priority status accorded to, 209 as export success story, 234 focus of study on, 11, 72 governance in, 244, 245 under Habibie, 77, 84–5, 88 ILO, cooperation with, 84 international involvement of, 75, 77 Komnas HAM (NHRI), 16, 75, 83, 87, 89–90, 117, 168, 177, 193, 195, 198, 201

Malaysia compared, 110, 117 MDG attainment, 221, 222, 225, 226, 227 National Plan of Action on Human Rights (1998-2003), 84 national plan of action to promote and protect human rights, 189 national statistics, 229 Pancasila, 78, 81, 83, 90 participatory regionalism, support for, 150 separatist movements in, 81, 86, 88, 141 Singapore blamed for environmental damage by, 147 state support for human rights in, 10, 70 under Suharto, 15, 77, 78, 80–3, 85, 89 under Sukarno, 77, 78–80, 89, 125 US interaction with, 43, 58, 59 wealth, power, and development, relationship between, 231, 232 Working Group’s engagement of, 172 under Yudhoyono, 15, 70, 75, 77, 84, 85, 88, 90, 150 inequality elimination through trade, aid, and debt relief, 233–42 national responsibility for, 242–5 wealth, power, and development, relationship between, 228–33 INFID (International Forum for Indonesian Development), 82 integration of human rights culture into ASEAN Societies, 251–3 intellectual property laws, 237 Inter-American Commission, Convention, and Court on Human Rights, 54–5, 67 International Bar Association, 132 international Bill of Rights, 32–42, 60, 185. See also International

index Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights International Committee of the Red Cross (ICRC), 31, 119 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW, 1990), 45, 195 International Covenant on Civil and Political Rights (ICCPR, 1966) in historical development of international human rights system, 39, 40–1, 45, 60 Indonesian ratification of, 87 Philippine ratification of, 95 Thai ratification of, 106, 108 International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) in historical development of international human rights system, 40, 42, 45, 60 Indonesian ratification of, 87 international move towards acceptance of development rights and, 190 judicial enforcement of development rights and, 218 Malaysia’s failure to ratify, 219 Philippine ratification of, 95 Singapore’s failure to ratify, 123, 130 Thai ratification of, 106 international criminal justice, 14, 27, 48, 60 International Crisis Group, 107 International Financial Institutions Act of 1977 (US), 57 International Forum for Indonesian Development (INFID), 82 international human rights community attitudinal changes in, 10–11 historical background (See historical development of international human rights)

297

as post-war Western-liberal-based versus natural or universal value system, 12 international human rights law at ASEAN regional level, development of, 254–6 international human rights treaties. See treaties International Labour Organization (ILO) foundation of, 30 function and practice of, 49–50 Indonesia, cooperation of, 84 UN mandate for, 36 International Monetary Fund (IMF), 215, 236, 240 Iran Cold War, support from US during, 43 US sanctions against, 58 Iraq Abu Ghraib, 58 invasion of, 48, 60 Kurdish population, UN resolution to protect, 46 Irian Jaya (West Papua), separatist movement in, 81, 86, 141, 149 ISA in Malaysia, 112, 115, 120 Islam Aceh, separatist movement in, 81 ‘Asian values’ debate and, 13 conflicts between Shariah law and international human rights conventions, 38, 66 free speech and expression, conflicts with Western valuation of, 43 in Malaysia, 110, 115, 121–2 the Philippines, crackdown on terrorists and separatists in, 96 in Thai south, 122, 141, 146, 149 UHDR and, 38 war on terror and international human rights law, 14, 27, 58, 115 Israel security measures compared to Malaysian ISA, 116

298

index

Israel (cont.) West Bank and Gaza, UN response to occupation of, 44 Japan aid provided by, 240 ASEAN’s efforts at cooperation with, 153 bilateral FTA with Thailand, 238 UN Declaration on the Right to Development (1986), abstention on, 212 wealth, power, and development, relationship between, 232 Jayakumar, S., 129, 130 Jemaah Islamiyah, 115 judicial enforcement of development rights, 217–19, 246 Juwana, Hikmahanto, 91 Kalyanamitra (Women’s Solidarity), Indonesia, 82 Katsumata Hiro, 149 Kaufmann, Daniel, 228, 243–4 Kim Jong Il, 75 Komisi Nasional Hak Asasi Manusia or Komnas HAM (Indonesian Commission of Human Rights), 16, 75, 83, 87, 89–90, 117, 168, 177, 193, 195, 198, 201 Korea. See North Korea; South Korea Kosovo, NATO intervention in, 47, 60 Kraft, Herman Joseph S., 150 Kriangsak Chomanan, 103 Kuala Lumpur Declaration by AIPO (1993), 26, 70, 147, 148, 166 Kukrit Pramoj, 103 Kumar, C. Raj, 203 Laos civil and political rights, importance of adhering to, 246 culture of human rights in, 253 external scrutiny of human rights record, need to accept, 249 MDG attainment, 225, 226

study not focusing on, 11, 72 League of Nations, 30 Lebanon, Indonesia’s role in UN peacekeeping force in, 77 Lee Hsien Loong, 15, 131 Lee Kuan Yew, 26, 125 Legal Aid Institute (Yayasan Lembaga Bantuan Hukum, or YLBHI), 82 legal development of international human rights at ASEAN regional level, 254–6 liberalisation of trade as means of fostering development rights, 227–45 Liberia, genocide in, 56 Lim Hng Kiang, 238 Lim, Raymond, 173 litigation of development rights, 217–19, 246 Locke, John, 61 Maastricht, Treaty of (1992), 53 Mahathir Mohamed, Dato’ Seri Dr., 112–14, 122, 236 Malaysia, 109–22 agriculture in, 235 Asian financial crisis of 1997 in, 113, 233 ‘Asian values’ debate, 249 under Badawi administration, 110, 114–22 bilateral FTA with US, 238 bumiputra policy (positive discrimination in favor of indigenous Malay), 110–12, 117 CEDAW and CRC in, 117 civil society in, 110, 118, 136 colonial history of, 40, 111 compared to other ASEAN nations, 136–8 culture of human rights in, 252, 253 current state of human rights in, 109–10, 114–22 debt servicing and debt relief, 233 development rights, priority status accorded to, 208 as export success story, 234

index focus of study on, 11, 72 foreign policy, human rights concerns expressed in, 122 governance in, 244, 245 ICESCR, failure to ratify, 219 ISA in, 112, 115, 120 Islam, precedence afforded to, 110, 121–2 Islamic fundamentalism, concerns about, 115, 122 under Mahathir administration, 112–14, 122, 236 MDG attainment, 221, 225 national statistics, 229 NEP in, 112, 120 as non-Confucian society, 7 Singapore blamed for environmental damage by, 147 Singapore’s separation from, 111, 124 state attitude towards human rights in, 10 SUHAKAM (NHRI), 16, 75, 110, 117–18, 177, 193, 195, 201 Thai south, concerns over Muslims in, 122, 146 US interaction with regimes in, 59 wealth, power, and development, relationship between, 232 Working Group’s engagement of, 172 Maphilindo, 144 Marcos, Ferdinand, 15, 93, 94, 100 Marks, Stephen, 212 MARUAH (Singapore Working Group for an ASEAN Human Rights Mechanism), 134 McCarthyism, 39, 57 MDG. See Millennium Development Goals Megawati Sukarnoputri, 77, 84 Mesa, Max M. de, 99 migrant workers ACMW (See ASEAN Committee on Migrant Workers) ICRMW, 1990, 45, 195 NHRI regional cooperation on, 195

299

services sector, WTO policies for, 237 TWC2, 134 MILF (Moro Islamic Liberation Front), the Philippines, 96 Millennium Declaration, 185, 214, 219 Millennium Development Goals (MDGs) convergence of UN and ASEAN on human rights issues in, 185 customary international law, force of, 220 defined and listed, 220–2 developed world’s obligations under, 234, 239–40 development rights and, 14, 21, 67, 69, 185, 207, 219–27, 255 education and health spending, correlation with, 226 integration of development rights into human rights framework via, 219–27, 246 not expressly formulated in rights terminology, 21 status of MDG attainment for five founding ASEAN states, 220–7 UN specialized agencies pursuing, 49 wealth, power, and development, relationship between, 232 Mindanao, Southern Philippines, New People’s Army in, 96, 141 minorities, early humanitarian protections for, 29 Misol, Lisa, 88 Mohamad, Maznah, 141 Monterrey Consensus, 239, 241 Moro Islamic Liberation Front (MILF), the Philippines, 96 Muntarbhorn, Vitit, 160, 169, 170, 192–3 Muslims. See Islam Myanmar ASEAN Charter, ratification of, 156 ASEAN norm of non-interference and, 146, 149

300

index

Myanmar (cont.) ASEAN pressure for reform in, 75, 77, 122, 135, 148, 150 civil and political rights, importance of adhering to, 246 culture of human rights in, 253 decolonisation of, 40 external scrutiny of human rights record, need to accept, 249 international criticism of situation in, 141 MDG attainment, 225, 226 study not focusing on, 11, 72 NAM (Non-Aligned Movement), 245 national experience of human rights issues. See state experience of human rights issues National Human Rights Commission of Thailand (NHRCT), 16, 75, 105, 106–8, 177, 193, 196, 198, 202 national human rights institutions (NHRIs) AICHR and, 179, 205 APF, 191, 204 CHRP, the Philippines, 16, 40, 75, 95, 96, 177, 193, 194, 201, 202 commission, ombudsman, or hybrid formats, 199 culture of human rights, integration of, 252 defined, 198 democratic development, link to, 199 domestic human rights measures, impact of, 182, 192–7 effects of presence of, 16, 75 establishing organisations in ASEAN states without them, 197–202 at First Regional Conference on Building Networks (2006), 182 implementation of international human rights norms in ASEAN region via, 250 increasing effectiveness and functionality of, 182

international recognition of potential of, 191 Komnas HAM, Indonesia, 16, 75, 83, 87, 89–90, 117, 168, 177, 193, 195, 198, 201 NHRCT, Thailand, 16, 75, 105, 106–8, 177, 193, 196, 198, 202 official cooperation between existing organisations, 193–7 Paris Principles, 183, 197, 199, 201, 253 Singapore’s lack of, 123 SUHAKAM, Malaysia, 16, 75, 110, 117–18, 177, 193, 195, 201 synergy among, improving, 170, 177 Working Group and, 168, 169, 170, 171 national human rights measures, impact of, 182, 192–7 national plans of action, 84, 188–90, 194, 204 national responsibility for inequitable development and human rights, 242–5 national sovereignty. See state sovereignty national statistics for five founding ASEAN states, 229 National Union of Journalists (NUJ), Malaysia, 117 NATO (North Atlantic Treaty Organization) intervention in Kosovo, 47, 60 natural law theory, 62–3, 64 Navaratnam, Ramon, 110 NEP (New Economic Policy), Malaysia, 112, 120 Netherlands aid provided by, 240 Indonesia, decolonisation of, 40, 78–9 unilateral use of human rights by, 57 New Economic Policy (NEP), Malaysia, 112, 120 New People’s Army, Southern Philippines, 96, 141 New Zealand, on UN formation, 34

index NGOs (non-governmental organisations). See civil society and NGOs, and specific organisations NHRCT (National Human Rights Commission of Thailand), 16, 75, 105, 106–8, 177, 193, 196, 198, 202 NHRIs. See national human rights institutions 9/11, 14, 27, 58 Non-Aligned Movement (NAM), 245 non-governmental organisations (NGOs). See civil society and NGOs, and specific organisations norm change, ASEAN resistance to, 147–51 North Atlantic Treaty Organization (NATO) intervention in Kosovo, 47, 60 North Korea ASEAN outreach to, 75, 77, 150 US sanctions against, 58 Norway, foreign aid provided by, 240 NUJ (National Union of Journalists), Malaysia, 117 Nuremberg trials, 48 Nyan Win, 156 OAS (Organization of American States), 54–5 Obama, Barack, 59 ODA (official donor assistance) as means of fostering development rights, 227–45 OECD (Organisation for Economic Co-operation and Development), 215, 235, 239 Office of the High Commissioner for Human Rights (OHCHR) development rights and, 208, 216 establishment of, 43 on MDG, 220 Muntarbhorn on, 192–3 national plans of action supported by, 204 NHRIs and, 191, 196

301

official donor assistance (ODA) as means of fostering development rights, 227–45 OHCHR. See Office of the High Commissioner for Human Rights ombudsman versus commission format for NHRIs, 199 Organisation for Economic Co-operation and Development (OECD), 215, 235, 239 Organization of African Unity, 55–7 Organization of American States (OAS), 54–5 Organization on Security and Cooperation in Europe (OSCE), 53 Othman, Abdul Hamid, 121 Ottoman Empire, humanitarian interventions in, 29 Oxfam, 215 PAHRA (Philippine Alliance of Human Rights Advocates), 99 Pancasila, 78, 81, 83, 90 Paris Declaration, 239 Paris Principles, 183, 197, 199, 201, 253 Paris, Treaty of (1763), 29 Paris, Treaty of (1856), 29 Peerenboom, Randall, 24, 228, 231 Phibun Songkram, 101, 102 Philippine Alliance of Human Rights Advocates (PAHRA), 99 the Philippines, 91–100 agriculture in, 235 AICHR, as chair of, 160 aid, need for, 239 anti-terrorism and anti-separatist crackdowns in, 92, 96, 97, 141 Aquino, Benigno, election of, 94 under Aquino, Corazon, and Fidel Ramos, 93, 94 Arroyo administration in, 15, 92, 93, 94, 97, 100, 156 ASEAN Charter, ratification of, 156 Asian financial crisis of 1997 in, 93 Bill of Rights, 95 Catholic Church in, 94

302

index

the Philippines (cont.) CEDAW in, 97 CHRP (NHRI), 16, 40, 75, 95, 96, 177, 193, 194, 201, 202 civil society and NGOs in, 94, 98 compared to other ASEAN nations, 136–8 CRC in, 98 culture of human rights in, 252, 253 current state of human rights in, 91–2, 93–100 debt servicing and debt relief, 233 decolonisation of, 40 development rights, judicial enforcement of, 217, 219 development rights, priority status accorded to, 209 under Estrada, 93, 100 as export success story, 234 focus of study on, 11, 72 governance rankings, 245 Malaysia compared, 110 Marcos dictatorship in, 15, 93, 94, 100 MDG attainment, 221, 222, 227 national plan of action to promote and protect human rights, 189 national statistics, 229 as non-Confucian society, 7 participatory regionalism and flexible engagement, moves towards, 149 ‘People Power’ revolutions in, 93 state support for human rights in, 10, 70 US influence on, 92 US interaction with regimes in, 58, 59 wealth, power, and development, relationship between, 231, 232 on World Bank financing, 241 Pinochet, Augusto, 44 plans of action, national, 84, 188–90, 194, 204 political and civil rights importance of, 244, 246–7 privileged over development rights, 13, 43, 66–8, 206, 209, 212 Portugal, foreign aid provided by, 240

poverty reduction strategy papers (PRSPs), 215 power, wealth, and development, relationship between, 228–33 Pradit Chareonthaitawee, 105, 202 Prasong Soonsiri, 102 Prem Tinsulanond, 103 Pridi Panomyong, 101, 102 Probosujeto, 86 Proclamation of Tehran (1968), 210 PRSPs (poverty reduction strategy papers), 215 Pufendorf, Samuel, 63 Quisumbing, Purificacion V., 99 race and ethnicity bumiputra policy (positive discrimination in favor of indigenous Malay), Malaysia, 110–12, 117, 119–22 CERD, 1965 (See Convention on the Elimination of All Forms of Racial Discrimination) Convention against Apartheid (1973), 44 (See also South Africa) historical exclusion of coloured peoples and women from international human rights, 31 minorities, early humanitarian protections for, 29 Ramos, Fidel, 93, 94 Rawls, John, 64 Razak Dato Hussein, Tun, 112 Razak, Najib, 122 Reagan, Ronald, 57 Red Cross, 31, 119 Regional Meeting for Asia of World Conference on Human Rights 1993 (Bangkok Conference and Declaration), 2, 70, 147, 151 regionalism in human rights Asia-wide human rights mechanism, cultural and political barriers to, 1–3 historical development of regional organisations, 50–7

index sub-regional systems, argument for establishing, 3 universalism versus regionalism, 1 regionalism versus universalism, 1 Reif, Linda, 182 religion. See also Islam early treaties guaranteeing toleration of, 29 Philippine civil society, role of Catholic Church in, 94 Western valuation of free speech and expression, religious conflicts with, 43 Republic of Korea. See South Korea Rome Statute, International Criminal Court, 49 Rommel, Thierry, 121 Roosevelt, Eleanor, 37 Roosevelt, Franklin D., 34, 66 Roth, Kenneth, 218 Rousseau, Jean-Jacques, 12, 61 Rwanda genocide in, 47, 56 International Criminal Tribunal for, 27, 48 safety net programs, ASEAN introduction of, 153 SAHRDC (South Asia Human Rights Documentation Centre), 90, 198 Salleh Abas, Tun, 113, 114 Sanya Thammasak, 103 Sarit Thanarat, 102 SARS (Severe Acute Respiratory Syndrome) crisis of 2002, 50 Saudi Arabian abstention from UDHR, 38 Schreuer, Christoph, 1 SEANWFZ (Southeast Asia Nuclear Weapon-Free Zone), 1995, 4 Second World War, 32–42, 209, 213 Seni Pramoj, 103 September 11 2001 (9/11), 14, 27, 58 services sector, WTO policies for, 237 Severe Acute Respiratory Syndrome (SARS) crisis of 2002, 50 Shariah law. See Islam

303

Sihasak Phuangketkeow, 109 Sihombing, Daud, 88 Singapore, 123–35 ‘Asian values’ debate, 249 bilateral FTAs, 238 CEDAW, 130 civil society in, 123, 134 compared to other ASEAN nations, 136–8 Confucianism as artificial construct in, 7 CRC, 66, 127, 130 culture of human rights in, 252, 253 death penalty in, 128–9 decolonisation and separation from Malaysia, 111, 124 development rights, priority status accorded to, 208 focus of study on, 11, 72 governance in, 243, 244, 245 MDG attainment, 221, 226 national statistics, 229 NHRI, lack of, 123 PAP rule under Lee Kuan Yew, 125 racial equality, importance of, 111, 125 as recent whipping boy within ASEAN, 146 security measures compared to Malaysian ISA, 116 state attitude towards human rights in, 10, 70, 76 Sukarno’s Indonesia compared, 125 wealth, power, and development, relationship between, 231, 232 Sisters in Islam, 119 slavery, conventions outlawing, 30 Smith, Anne, 200 social safety nets, ASEAN introduction of, 153 socio-economic rights. See development rights Somalia genocide in, 56 US intervention in, 47 Somchai Neelaphaijit, 107 Sondhi Limthongkul, 106

304

index

Sonthi Boonyaratglin, 15, 58, 101 South Africa development rights, judicial enforcement of, 217 Indian accusations of discrimination against, at first UN session, 36 rising development and industrialisation in, 231 Sharpeville massacre, 1960, 40 UHDR, abstention from, 38 UN efforts against apartheid in, 44, 46 South Asia Human Rights Documentation Center (SAHRDC), 90, 198 South Korea (Republic of Korea) ASEAN’s efforts at cooperation with, 153 US aid despite human rights violations in, 58 wealth, power, and development, relationship between, 232 Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ), 1995, 4 sovereignty. See state sovereignty Soviet Union Cold War (See Cold War) UN Charter and international Bill of Rights, foundation of, 32–5 Sriprapha Petcharamesree, 108, 160 state experience of human rights issues, 15–17, 72–138. See also entries for Indonesia, Malaysia, the Philippines, Singapore, and Thailand actual existence of human rights compared to state support for concept, 10, 70, 76, 137 CEDAW, adherence to, 74 colonialism, effects of, 15 CRC, adherence to, 74 documentary evidence for, 76 NHRIs, effects of presence of, 16, 75 salient features of, 72–6, 136–8 states focused on, 11, 72 state sovereignty AICHR, establishment and support of, 141

ASEAN shared regional principle of self-determination and noninterference, 145–7 in Europe, 51 external scrutiny of human rights record, need to accept, 248–51 importance in ASEAN region, 8–10, 64, 65, 68 international moves towards reduced primacy of, 186 in neoclassical international law theory, 29, 63 norm change, ASEAN resistance to, 147–51 UN, formation of, 34 Stiglitz, Joseph, 236 SUARAM, 115, 116, 118 Suchinda Krapayoon, 103 Sudan, genocide in, 56 SUHAKAM or Suruhanjaya Hak Asasi Manusia Malaysia (Human Rights Commission of Malaysia), 16, 110, 117–18, 177, 193, 195, 201 Suharto, 15, 77, 78, 80–3, 85, 89 Sukarno, 77, 78–80, 89, 125 Surayud Chulanont, 15, 105 Surin Pitsuwan, 148, 151, 249 Suruhanjaya Hak Asasi Manusia Malaysia or SUHAKAM (Human Rights Commission of Malaysia), 16, 110, 117–18, 177, 193, 195, 201 Sweden aid provided by, 240 development rights integrated into human rights framework, 215 UN Declaration on the Right to Development (1986), abstention on, 212 TAC (Treaty of Amity and Cooperation in Southeast Asia), 1976, 4, 145 Taiwan, relationship between wealth, power, and development in, 232 Tay, Simon, 174 Tenaganita, 119

index Terms of Reference (TOR) for AICHR, 157, 158, 160, 161, 175, 179, 187, 194, 250, 251, 254 terrorism and international human rights law, 14 in historical development of international human rights system, 27, 58 Malaysia, concerns about Islamic fundamentalism in, 115, 122 Malaysian ISA, 112, 115, 120 NHRI regional cooperation on regional terrorism, 195 the Philippines, crackdown on terrorists and separatists in, 92, 96, 97, 141 September 11, 2001 (9/11), 14, 27, 58 Thai Textile Manufacturing Association, 233 Thailand, 101–9 agriculture in, 235 AICHR, as chair of, 160 AICHR representatives, 160 Asian financial crisis of 1997 in, 233 bilateral FTA with Japan, 238 CEDAW and CRC in, 106 under Chuan Leekpai, 103, 104, 150 civil society, strength of, 101–9 compared to other ASEAN nations, 136–8 culture of human rights in, 252, 253 debt servicing and debt relief, 233 development rights, priority status accorded to, 209 as export success story, 234 focus of study on, 11, 72 governance in, 243, 244, 245 history of coups and counter-coups in, 101 Malaysia compared, 110 MDG attainment, 221, 225 military coup of 2006, 15, 58, 70, 101, 105, 150 Muslims in south of, 122, 141, 146, 149 national plan of action to promote and protect human rights, 189 national statistics, 229

305

NHRCT, 16, 75, 105, 106–8, 177, 193, 196, 198, 202 no colonisation of, 102 as non-Confucian society, 7 participatory regionalism and flexible engagement, moves towards, 148, 150 Red Shirts versus Yellow Shirts in, 108 Singapore accused of spying by, 147 state support for human rights in, 10 Thaksin administration in, 15, 58, 75, 101, 104–5, 106, 107, 108, 114, 147, 150, 198, 202 US withdrawal of aid from, 58 wealth, power, and development, relationship between, 231, 232, 233 Thaksin Shinawatra, 15, 58, 75, 101, 104–5, 106, 107, 108, 114, 147, 155–7, 198, 202 Thanin Kraivichien, 103 Thanom Kittikatchorn, 102 Thio Li-ann, 24, 141 Third World Network, 166 Thomas Aquinas, 62 three pillars of ASEAN, 154–5, 161, 250 Timor Leste (formerly East Timor), separatist movement in, 81, 82, 88, 141, 149 Tokyo, International Military Tribunal at, 48 TOR (Terms of Reference) for AICHR, 157, 158, 160, 161, 175, 179, 187, 194, 250, 251, 254 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention against (CAT, 1984), 45, 84, 127 Track 2 and Track 3 levels of action in ASEAN, 163–7 trade as means of fostering development rights, 227–45 Trade-Related Aspects of Intellectual Property Rights (TRIPS), 237 Transient Workers Count Too (TWC2), 134

306

index

treaties Amsterdam, Treaty of (1997), 53 Berlin, Treaty of (1878), 29 development rights and accession and adherence to other international human rights treaties, 246–7, 255 Ghent, Treaty of (1713), 29 Maastricht, Treaty of (1992), 53 Paris, Treaty of (1763), 29 Paris, Treaty of (1856), 29 religious toleration, early treaties guaranteeing, 29 TAC (Treaty of Amity and Cooperation in Southeast Asia), 1976, 4, 145 UDHR influencing, 41, 45 Versailles, Treaty of (1919), 30 TRIPS (Trade-Related Aspects of Intellectual Property Rights), 237 Tunku Abdul Rahman, 111, 112, 125 TWC2 (Transient Workers Count Too), 134 UDHR, 1948. See Universal Declaration of Human Rights United Kingdom Bill of Rights (1689), 28 colonies, post-Second World War release of, 40 development rights integrated into human rights framework, 215 UN Charter and international Bill of Rights, foundation of, 32–5 UN Declaration on the Right to Development (1986), abstention on, 212 unilateral use of human rights by, 57 United Nations. See also specific Conventions and Declarations, and specific UN Agencies Charter, 32–42, 152 convergence with ASEAN (See convergence of UN and ASEAN on human rights issues) development rights and formation of, 35

High Level Panel on Threats, Challenges, and Changes report, 186, 214, 215 human rights in UN system, 43–9 integration of development rights into human rights framework, 213–20 Regional Arrangements for AsiaPacific, 181, 182, 185, 187, 252 specialised agencies, 49–50 Thailand on Human Rights Council of, 109 United Nations Children’s Fund (UNICEF) ASEAN collaborations with, 154 development rights and, 213 mandate of, 36 United Nations Country Teams (UNCT), 193 United Nations Development Assistance Framework (UNDAF), 208 United Nations Development Group (UNDG), 208 United Nations Development Policy and Analysis Division (UNDPAD), 228–31 United Nations Development Programme (UNDP), 193, 214, 215 United Nations Educational, Scientific and Cultural Organization (UNESCO) function and practice of, 49–50 mandate of, 36 presence in ASEAN region, 193 United Nations High Commissioner for Refugees (UNHCR), 43, 119 United States agricultural subsidies, 235 aid provided by, 240 bilateral FTAs, 238 Cold War (See Cold War) Declaration of Independence (1776) and historical development of international human rights, 28, 61, 62

index Haiti, 1994 intervention in, 47 McCarthyism in, 39, 57 OAS, 54–5 OSCE, 53 the Philippines and, 40, 58, 59, 92 security measures compared to Malaysian ISA, 116 Somalia, intervention in, 47 State Department annual reports, 76, 177 UN Charter and international Bill of Rights, foundation of, 32–5 UN Declaration on the Right to Development (1986), rejection of, 212 unilateral use of human rights by, 56 Universal Declaration of Human Rights (UDHR, 1948) abstentions from, 38 AICHR and, 157 ASEAN desire to uphold principles of, 152 ASEAN regional adaptations of, 65 creation of, 38 as customary international law, 61 decolonisation with reference to, 40 European Commission, Court, and Convention of Human Rights, establishment of, 50 human rights education debate reminiscent of, 190 ideological or philosophical meaning, efforts to introduce, 13, 61 Indonesian adaptation of, 83 Malaysian adaptation of, 114 slavery prohibited by, 30 treaties and conventions influenced by, 41, 45 Western liberal bias of, 65 universalism historical development of international human rights as post-war Western-liberal-based versus natural or universal value system, 12, 61–6 regionalism versus, 1

307

Uruguay Round of trade talks, 235 Usman, Johny Wainal, 88 VAP (Vientiane Action Programme), 154–5, 159, 176, 187, 249 Vattel, Emerich de, 63 Versailles, Treaty of (1919), 30 Vienna, Congress of (1815), 29 Vienna World Conference and Declaration on Human Rights (1993), 2, 67, 124, 151, 152, 157, 184 Vientiane Action Programme (VAP), 154–5, 159, 176, 187, 249 Vietnam Cambodia, invasion and occupation of, 68 civil and political rights, importance of adhering to, 246 culture of human rights in, 253 external scrutiny of human rights record, need to accept, 249 MDG attainment, 226 NHRI, plan for, 197 study not focusing on, 11, 72 textile industry in, 233, 235 wealth, power, and development, relationship between, 232, 233 Wahid, Abdurrahman (Gus Dur), 77, 84, 85 war, law of, and human rights law, 30 war on terrorism. See terrorism and international human rights law Washington Consensus, 236 wealth, power, and development, relationship between, 228–33 WESS 2006 (World Economic and Social Survey 2006), 228–31 West Bank and Gaza, UN response to Israeli occupation of, 44 West Papua (Irian Jaya), separatist movement in, 81, 86, 141, 149 WHO (World Health Organization), 49–50, 237

308

index

Williams, Rowan, 121 Wiranto, General, 83, 88 Wolff, Christian, 63 Wolfowitz, Paul, 134 Women’s Aid Organisation, Malaysia, 119 women’s issues ACWC, AICHR’s relationship to, 162 in ASEAN Plan of Action for Children (1993), 152 CEDAW (See Convention on the Elimination of All Forms of Discrimination against Women) Convention on the Political Rights of Women, 1952, 38 Declaration against Trafficking in Persons Particularly Women and Children (2004), 153 Declaration on the Elimination of Violence against Women in the ASEAN Region (2004), 154 development rights, gender mainstreaming of, 213 increase in regional protections, 153 Malaysian NGOs addressing, 119 NHRI regional cooperation on human trafficking, 194 Singapore NGOs addressing, 134 Wong Kan Seng, 124 Working Group for an ASEAN Human Rights Mechanism, 18, 167–76 ACWC and ACMW promoted by, 170, 171, 172, 173, 174 ASEAN Charter, Article 14, 171, 172, 173 convergence of UN and ASEAN on human rights issues, efforts towards, 182 coordination between UN and third parties with ASEAN states, facilitating, 204 formation and purpose of, 167 founding members, 167 in framework of human rights in ASEAN, 8

NHRIs, support for establishment of, 197 NHRIs, working with, 168, 169, 170, 171 in Singapore, 134 success in engaging ASEAN on human rights, 152, 166–7 workshops, 168–74, 176 World Bank development rights integrated into human rights framework, 215 macro-regulation programmes of 1980s, 213 modification of interpretation of Articles of Agreement by, 208 Philippine feedback on financing from, 241 World Conference and Declaration on Human Rights 1993, Vienna, 2, 67, 124, 151, 152, 157, 184 World Economic and Social Survey 2006 (WESS 2006), 228–31 World Health Organization (WHO), 49–50, 237 World Trade Organization (WTO) Doha Round, 11, 70, 230, 238 intellectual property laws, 237 negative developmental effects of current trading rules, 236–8 services sector, WTO policies for, 237 Uruguay Round, 235 World War First, 30 Second, 32–42, 209, 213 WTO. See World Trade Organization Yayasan Lembaga Bantuan Hukum, or YLBHI (Legal Aid Institute), 82 Yudhoyono, Susilo Bambang, 15, 70, 75, 77, 84, 85, 88, 90, 136, 150 Yugoslavia, International Criminal Tribunal for the former, 27, 48 Yusuf, Irwandi, 86