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Tuesday, December 11, 2012

Congratulations to ASEAN on the adoption of its Human Rights Declaration

Cambodia's PM Hun Sen, left, with ASEAN Secretary-General Surin Pitsuwan after the ceremony for the adoption of the ASEAN Human Rights Declaration, during the ASEAN Summit in Phnom Penh, November 18, 2012.

Compliments

On 18 November 2012, the ASEAN Heads of State and Government adopted the ASEAN Human Rights Declaration. This Declaration, which is the first comprehensive human rights document issued by ASEAN, displays an authentic regional vision on the promotion and protection of human rights.

The Presidency of ASEAN, held by Cambodia, which brought the process to a successful completion, and the ASEAN Intergovernmental Commission on Human Rights, which took care of much of the drafting, need to be commended for their stewardship of the process and the quality of its outcome. Since the cultures, political systems, and therefore the human rights ambitions of the member states of ASEAN are very different, the fact that they were able to produce such a consistent and convincing document deserves a compliment.

ASEAN’s efforts become even more commendable when one takes into account that the principle of non-interference has always been a pillar of the cooperation within ASEAN and an important part of its success. During the early years, states were focusing on internal problems and they were not eager, therefore, to take on each other. At a later stage the organisation accommodated the accession of a number of states with radically different political systems. This could work only because the members adopted a ‘live and let live’ attitude towards each other. ASEAN has now shown that it is willing to sacrifice a principle which has contributed much to the success of the organisation by turning human rights into an issue of common concern.

Contents

Like the African Charter on Human and Peoples’ Rights, the Declaration is much more inclusive and comprehensive than many of its counterparts. Thus, it does not limit itself to stating a number of civil and political rights, but it also outlines a number of economic, social, cultural rights, which conveys the ‘wholeness’ of human rights. The inclusion of a detailed right to development is a very innovative element.

The Declaration contains many of the civil and political rights which are included in its global and regional counterparts, like the rights to life, personal liberty, security and privacy; the right to property, nationality, and freedom of movement; and the right to freedom of thought, conscience and religion, freedom of expression and freedom of peaceful assembly. It also contains a ban on servitude, slavery and torture. And it guarantees the right to a fair trial, while protecting against the retroactivity of criminal offences and double jeopardy.

To these well established rights, the Declaration adds a few important innovations. Thus, contrary to the European Convention of Human Rights, the Declaration recognises the right to vote and the right to seek and receive asylum. These rights may have been read into the European Convention by the European Court of Human Rights, but they were absent from the original text. In the paragraph on economic, social and cultural rights the Declaration urges ASEAN member states to create a positive environment in overcoming stigma, silence, denial and discrimination in the treatment of HIV/AIDS sufferers, which is a very welcome addition. The special protection required for childbearing women and young mothers also deserves praise.  

Like the African Charter, the Declaration does not only contain a number of rights, but it also stresses that these rights have to be balanced with the duties owed to other individuals and the community as a whole. The duty of one individual serves a right of the other. Thus, the duty of children to take care of their parents when they reach old age correlates with the right of the parents to such care provided by the children. Duties serve as building blocks for rights in particular in communal societies, where the realisation of human rights often does not depend on action by the state, but on that of the groups of which one is a member, like the family, the community and the church.

Clause 7 of the Declaration expresses allegiance to the universality of human rights, while emphasising at the same time that the realisation of human rights will have to take place within the political and cultural context of the society concerned. The idea that human rights norms are universal, but that their implementation can and should rely on local circumstances is neither novel nor dangerous. Public international law leaves it to the states to choose the means they see fit to implement their human rights obligations. Therefore, if states prefer to rely on local social institutions like the family, religion, reciprocity, and the community, to implement their obligations in the area of human rights, they are perfectly free to do so. This also is the essence of the so-called receptor approach to human rights, which encourages states to rely on their local strengths to implement human rights.        

The Declaration rightfully stresses the need to also perform duties and the importance of realisation of human rights within their local context. Both of the aspects secure that human rights are embedded: in this way people will accept and embrace human rights and will respect them in their relationships with others. It does not make sense to put a policeman in every home to secure that human rights are being adhered to. Therefore, the duties and the contextual realisation are strong points of the Declaration.

International criticism

Despite these strong assets, the Declaration has not received a warm welcome from international NGOs and officials. Organisations like Amnesty International, the International Federation for Human Rights, and the International Commission of Jurists, as well as the UN High Commissioner for Human Rights and the U.S. State Department, have given the document the cold shoulder. They have expressed unease with the Declaration and the process which has led to its adoption, and they have requested ASEAN to redo its homework. The critics object in particular to the fact that individual rights have to be balanced with duties and that their realisation will have to take place within the political and cultural context of the societies concerned. They regard this as a sign of cultural relativism.

As was stated above, the Declaration embraces the universality of human rights and emphasises the importance of implementation on the basis of local social and cultural assets. Since states are perfectly entitled to implement their obligations as they see fit, there is noting culturally relativist about this position. As a matter of fact, the label ‘culturally relativist’ is more befitting those who deny others the opportunity to follow a legitimate course of action because they prefer an alternative one.  

The critics should remind themselves of the fact that regional documents should not be clones of each other, nor should be put in a ‘one size fits all’ straightjacket. It is not helpful to judge a document emerging from another region on what is missing from one’s own regional perspective. This may not be the Declaration westerners would have written, but it is very well suited for the situation in South East Asia. If they would like to see human rights flourish in the region, such local embededness is very important.

In addition, if the critics believe that the Declaration needs to be improved, rejecting it is not going to achieve this. This will just box ASEAN members into a corner and this may lead to disengagement from the human rights discourse. This has happened before. When ASEAN states were invoking ‘Asian values’ during the 1990s they were merely pointing out that human rights in the region needed to be implemented in a culturally sensitive manner. Only when westerners started to attack this perfectly legitimate position did the ‘Asian values’ debate spill over into the realm of the universality of human rights.

Therefore, not the Declaration is disappointing, but its frosty reception. Instead of complaining about what is absent from the document, we should welcome the fresh ideas and innovative concepts it contains, which will serve to keep the human rights discourse alive and prevent it from stalling. Through the Declaration the ASEAN countries will be kept engaged in the human rights discourse. Of course there are still many human rights challenges in the region which cannot be solved by the stroke of a pen. But the adoption of the Declaration shows the resolve of the ASEAN states to tackle these problems as part of a joint responsibility.

This year the Norwegian Nobel Peace Prize Committee has awarded the prize to a regional organisation, the EU, for its efforts in the area of human rights. ASEAN should be the recipient of next year’s prize.

Guest Post Tom Zwart
Professor of Human Rights, Utrecht University
Director of the ‘Receptor Approach to Human Rights’ project.  


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