In July, the ASEAN foreign ministers meeting in Phnom Penh will receive one of the most important documents drafted since the adoption five years ago of the ASEAN Charter. The ASEAN Declaration on Human Rights supposedly rings in a “new ASEAN” that is “people-oriented” with popular participation at its core.  

Yet when the declaration, known as the ADHR, reaches the ministers, odds are that few citizens of ASEAN member countries will have ever heard of it, no meaningful public participation will have taken place about it and its contents may well call into question whether ASEAN and its members are prepared to abide by universal human rights standards. 

With the 20th anniversary of the 1993 Vienna World Conference on Human Rights coming up next year, few regional NGOs and human rights defenders thought they might have to revisit the debate about so-called “Asian values,” last promoted in the 1990s by Mahathir Mohamad and Lee Kuan Yew, the former prime ministers of Malaysia and Singapore. They made the case that rights should be based on the national, social and cultural contexts of Asian nations rather than the indivisibility and universality of human rights.

Regional human rights activists began a concerted effort in 1995 to persuade ASEAN, then often derided as a “club of dictators,” to create an ASEAN human rights commission and demonstrate a commitment to human rights through a declaration. Their campaign started after the Vienna conference effectively ended the “Asian values” debate by adopting a declaration that reaffirmed that “all human rights are universal, indivisible and interdependent and interrelated” and added that the “international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis.” 

ASEAN members didn’t object, and soon thereafter they agreed to start discussions on setting up an ASEAN-wide human rights commission. Few imagined the endeavor would ultimately stretch for more than a decade.

Fast forward to 2007, when ASEAN finally adopted a legally binding charter that contains laudable recognition of human rights in its guiding principles, which include “respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice.” But read on further, and the ambivalence of ASEAN towards its new arrangement becomes clear. Most telling is the charter’s inclusion of more traditional ASEAN fare, such as the bloc’s well-worn formula that requires “non-interference in the internal affairs of ASEAN member states.” This is the grouping’s quintessential mutual defense clause against unwelcome criticism. 

Nevertheless, the charter called for a regional human rights commission, and when the ASEAN Inter-government Commission on Human Rights (AICHR) was finally established in 2009, regional human rights campaigners celebrated the fall of the final citadel of resistance to universal human rights standards. Civil society groups gave the new commission the benefit of the doubt, and a long honeymoon period – in the expectation of gradual progress – began despite grave concerns about its limited mandate and lack of independence from regional governments. 

But two years on, one of AICHR’s key mandates, to draft the declaration, is raising concerns that a number of member governments are trying to renege on what they agreed to in Vienna. Broadly speaking, there are three possible outcomes. The declaration could be brought forward as a document that challenges ASEAN to do more on human rights and sets standards above existing international human rights accords. But few expect that dream to come true.

A second option is that the declaration meets international human rights standards, which while welcome would also raise questions about why ASEAN needed so much time to create such a declaration. The third option, which human rights defenders feel is most likely and thus are preparing to oppose, is an ADHR that seeks to undermine international standards.  At this point, it’s impossible to know for sure since the human rights commission shamefully refuses to reveal its draft declaration.  

The Thai saying that “the seed doesn’t fall far from the tree” may help explain why ASEAN’s penchant for secrecy in its meetings and documents has also become AICHR’s operating principle. But it certainly doesn’t justify the commission’s systematic shunning of ASEAN civil society, which just a few years before was being feted by Secretary General Surin Pitsuwan with promises of a “people’s ASEAN,” which he claimed was critical for the bloc to work effectively. 

AICHR clearly didn’t get the memo. To date, the commission has refused repeated requests to share the ADHR draft text with regional and national civil society groups. Even the terms of reference for the drafting committee, hand-picked by governments to develop the draft ADHR, have been kept secret as well as the names of the people selected to serve on the drafting committee.

When faced with repeated requests by civil society groups to release the draft terms of reference and the draft ADHR, the AICHR replied that the commission was not in a position to share “internal working documents” with outside parties. It’s not surprising then that the Asia Forum for Human Rights and Development (Forum Asia) and the SAPA Task Force on ASEAN and Human Rights (SAPA TF-AHR) titled their comprehensive report on AICHR A Commission Shrouded in Secrecy. The report was released in Bangkok on April 26. 

There is much at stake because, as Surin put it, the ADHR is supposed to be the “road map for regional human rights development” in ASEAN for years to come. The situation is bad enough that Navi Pillay, the United Nations High Commissioner for Human Rights, chided AICHR after a meeting with civil society groups and the commission in Bali in November 2011. “The number one concern was that AICHR, as a body, is not talking to civil society,” she pointed out. “That is a major concern to me, as well. No discussion of human rights can be complete or credible without significant input from civil society and national human rights institutions.” She continued: “And I can understand civil society organizations’ extreme frustration that they have not even been able to contribute to the drafting of the declaration or been adequately consulted on its contents.”

Difficulties in accessing information within ASEAN have made regional human rights activists experts in digging up information, and even ostensibly sealed off systems like ASEAN spring leaks now and again. So after months of trying, civil society groups in the SAPA Task Force on ASEAN and Human Rights finally got their hands on a copy of the draft ADHR dated January 8, 2012. 

Judging from that draft – since there is no other available – it appears the situation is as bad as many regional human rights advocates feared. Significant swathes of the draft focus on limiting rights, rather than promoting and protecting them, with some particularly odious amendments being proposed by persistent human rights abusers Laos and Vietnam. 

There are limitations that go well beyond what is permitted by international human rights standards, ranging from the impossibly vague, such as saying that the exercise of rights should not go against the “general welfare of the people” or “the common interest,” to the blatantly obstructionist, such as Laos’ rather defensive recommendation that the realization of rights must depend on principles including “non-confrontation, avoidance of double standards and non-politicization.”

While some of these more objectionable provisions might still get knocked out of the final version, the ADHR drafters are still insisting on language that resurrects the old excuses that use local social, cultural and religious contexts to erode human rights universality and condition enjoyment of rights on fulfillment of duties in ways that go beyond human rights standards. A push and pull debate is evidently going on between the governments of Thailand, Indonesia and the Philippines, which are seeking to ensure full respect for universal human rights standards, and other members of ASEAN that are scrambling to ensure loopholes will be created to permit exemptions to international human rights law. 

For example, problematic propositions like “creation of an environment where the peoples of ASEAN would enjoy, to the fullest possible extent, rights and freedoms within the regional context,” buttress efforts by governments like Malaysia to ensure that any discussion of discrimination by sex or sexual orientation is done in line with what it terms “ASEAN Core Values” rather than decisions of the UN Human Rights Council or the expert Committee on Economic, Social and Cultural Rights, which was set up to assist countries in implementing their obligations under the International Covenant on Economic, Social and Cultural Rights. 

Sadly, with regional human rights experts sidelined, the loophole strategy has a reasonable chance of success unless the international community demands that ASEAN change its rules to allow full civil society participation in the ADHR drafting and adoption process.

It’s not too late to alter the dynamic and make the ASEAN Declaration on Human Rights the fully rights-respecting agreement that it is supposed to be. AICHR should immediately postpone efforts to send the draft declaration to the ASEAN foreign ministers in June. Instead, the AICHR and the ADHR drafting committee should devise a comprehensive participatory process to ensure that the views of nongovernmental organizations and human rights defenders are heard and incorporated into a real declaration that aims high and seeks to meet the aspirations of all the peoples of ASEAN. That would be an outcome worth waiting for.  

Phil Robertson is Deputy Asia Director of Human Rights Watch.