NGO Law Monitor: Association of Southeast Asian States

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Last updated 21 May 2012

Introduction

The stated aims and purposes of the Association of Southeast Asian Nations (ASEAN) are: (1) to accelerate economic growth, social progress and cultural development in the region and (2) to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries in the region and adherence to the principles of the United Nations Charter. (http://www.aseansec.org/64.htm) Political scientists generally attribute the setting up of ASEAN in 1967 (plus other earlier efforts) to the member countries’ desire for a stable external political/military environment and the common fear of communism in the 1960s; the need to balance the influence of external powers and to pursue national economic development; and the concern with checking Indonesia’s ambition in the late 1960s to become a regional power through confrontation with Malaysia and Singapore.

ASEAN consists of ten member states. Founding member states in 1967 included Indonesia, Malaysia, the Philippines, Singapore, and Thailand. Brunei and Darussalam joined in 1984, Vietnam in 1995, the Lao P.D.R. and Burma (Myanmar) in 1997, and Cambodia in 1999.

ASEAN is often perceived negatively by Western governments (such as the EU and the US), especially when it comes to issues of political freedom, and in particular, ASEAN’s stand on Burma and human rights. As a result, ministerial meetings between ASEAN and the EU are often attended by full ministers on the ASEAN side, but not on the EU side.

ASEAN currently faces dual challenges on the political front. One challenge relates to its stand on Burma; ASEAN as an organization continues to be silent on the internal political situation in Burma. The second challenge relates to the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) which is perceived as likely to be toothless.

Key Facts

Headquarters	Jakarta, Indonesia
Members	10
Established	1967
Founding Document	Bangkok Declaration; ASEAN Charter
Head	Secretary General Surin Pitsuwan
Governing Bodies	Meeting of the ASEAN Heads of State and Government (held annually) ASEAN Ministerial Meeting (Foreign Ministers) Secretary-General of ASEAN (five-year term)
Key Human Rights Agreements	Does not appear to have any human rights treaties (http://www.asean.org/145.htm)
Key Judicial Bodies	ASEAN Inter-Governmental Commission on Human Rights Body (quasi-judicial body established on 23 October 2009)

Members

Brunei	Malaysia	Singapore
Cambodia	Myanmar	Thailand
Indonesia	Philippines	Vietnam
Laos

At a Glance

Freedom of Association	Legal Protection	The ASEAN Charter does not specifically mention freedom of association.
Freedom of Association	Judicial Bodies	The ASEAN Human Rights Body - the ASEAN Inter-Governmental Commission on Human Rights (AICHR) was established on 23 October 2009. The AICHR is a consultative body, without authority to consider cases, issues binding decisions, or undertake investigative missions.
Civil Society Participation	Ability to Participate in OAS Activities	Civil society organizations (CSOs) can become affiliated with ASEAN. Affiliation provides CSOs with information about and limited opportunities to participate in ASEAN policymaking.
	Registration Process	Specific details are listed in “Guidelines on ASEAN's Relations with Civil Society Organizations” (http://www.aseansec.org/18362.htm and http://www.aseansec.org/4986.htm).
	Registered CSOs	58 (see list of affiliated CSOs)
Human Rights Defenders	Current Status	No specific information regarding human rights defenders available

Key Legal Texts

Below are the founding document of ASEAN and other important documents relating to the organization. These documents are available at http://www.aseansec.org/145.htm.

Charter of the Association of Southeast Asian Nations, Singapore, 20 November 2007

Declaration on the Conduct of Parties in the South China Sea (2002)

Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia, 7 October 2003

Ha Noi Plan of Action (1998)

Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia (1998)

ASEAN Vision 2020, (1997)

Treaty on the Southeast Asia Nuclear Weapon-Free Zone, Bangkok, Thailand, 15 December 1995

Protocol to Amend the Framework Agreement on Enhancing ASEAN Economic Cooperation, Bangkok, Thailand, 15 December 1995

Agreement on the Common Effective Preferential Tariff (CEPT) Scheme for the ASEAN Free Trade Area (AFTA), Singapore, 28 January 1992

Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia, Manila 15 December 1987

Treaty of Amity and Cooperation in Southeast Asia, Bali, 24 February 1976

Declaration of ASEAN Concord, Bali, 24 February 1976

Zone of Peace, Freedom and Neutrality Declaration (Kuala Lumpur Declaration), Kuala Lumpur, 27 November 1971

Bangkok Declaration(1967)

Overview

Fundamental Freedoms and Human Rights Bodies

There are no legal provisions in the ASEAN Charter that directly address the right to freedom of association. There has been, to date, no human rights body empowered to consider complaints of violations of fundamental freedoms, such as the freedom of association. Not surprisingly, therefore, there is no body of interpretive opinion relating to the shape and scope of freedom of association or fundamental rights and freedoms more generally.

The ASEAN Charter does, however, make indirect reference to issues relating to freedom of association. Notably:

The Preamble to the ASEAN Charter (page 2) states: “ADHERING to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms;”
Article 1 [Purpose (page 4)]: “7. To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN;”
Article 2 [Principles (page 6)]: “ASEAN and its Member States shall act in accordance with the following Principles: … (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government.”

Perhaps most importantly, Article 14 of the ASEAN Charter envisions an ASEAN Human Rights Body:

“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.
This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.”

On 20 July 2009, at the 42nd ASEAN Ministerial Meeting, the Ministers adopted the Terms of Reference (TOR) for the ASEAN Human Rights Body, which is called the ASEAN Inter-Governmental Commission on Human Rights (AICHR). See the TOR at http://www.aseansec.org/Doc-TOR-AHRB.pdf. The AICHR was inaugurated and the implementation of its terms of reference was endorsed by leaders of ASEAN Member States at its 15th Summit on 23 October 2009 in Hua Hin, Thailand. The Summit was held amid much criticism by civil society groups in the region that the AICHR lacks clear protection mechanisms and capability to address various human rights issues within the 10-nation bloc. In response to such criticisms, ASEAN leaders relied on the fact that the TOR of the newly established regional human rights body will be reviewed every five years.

The AICHR is conceived principally as a consultative body, without authority to issue binding decisions, consider cases, or undertake investigative missions. Its decisions are to be made by consensus, which means that current authoritarian regimes like Burma, Laos and Vietnam will wield veto power. Further, the commissioners appointed to AICHR are accountable to the individual appointing governments; individual governments can therefore appoint or remove commissioners as they deem appropriate. No independent observers are presently included on the Commission. The AICHR is only authorized to develop strategies, raise awareness, promote capacity building, develop common positions, issue advisory opinions, draft documents, undertake research, and facilitate dialogue and consultation between members. Consequently, there is a general perception that the Commission will not be effective and that instead ASEAN will use the AICHR to whitewash its own human rights violations.

Representatives of the newly inaugurated AICHR convened an informal introductory meeting on 24 October 2009 in Hua Hin, Thailand. A key issue is related to the nomination of representatives to the AICHR by ASEAN governments. The TOR for the AICHR states that each member state has the authority to appoint its own representative to the AICHR through a process that it deems appropriate. With the exception of Indonesia and Thailand, where the process of nominating representatives is perceived by civil society groups as fair, the selection process in the rest of the member states is exclusively handled by governments, with no consultation or participation from civil society. Each AICHR representative will serve a term of three years and may be consecutively re-appointed for only one additional term.

The AICHR convened its First Meeting from 28 March – 1 April 2010 at the ASEAN Secretariat. During that meeting, Rules of Procedure which will guide the operations and conduct of the AICHR were formulated. These rules were finalized at the Second Meeting of AICHR held from 28 June – 2 July 2010 in Viet Nam, and were submitted to the 43rd ASEAN Ministerial Meeting on 19-20 July for ratification and were approved. In addition, the 43rd ASEAN Ministerial Meeting approved the work plan of the AICHR, which will enable the newly-established body to proceed with their mandate, including the drafting of a regional declaration of human rights.

Civil Society Participation

The principal means for civil society to participate in ASEAN affairs – i.e., to establish a working link with an ASEAN body – is through written submissions to the ASEAN Secretariat. Basically, the working link allows CSOs to submit written statements to include proposals or positions and other recommendations. Specific details of establishing such affiliation are listed in “Guidelines on ASEAN's Relations with Civil Society Organizations” (http://www.aseansec.org/18362.htm and http://www.aseansec.org/4986.htm). Reportedly, however, civil society organizations have found this participatory mechanism to be weak and ineffective.

The application process for CSO affiliation is described in the Guidelines. Briefly, an application for affiliation shall include, at a minimum, information regarding the nature and purpose of the application of the CSO, its constitution and by-laws, a copy of its registration papers, its membership, background on its key officials, its function, activities, and projects, and its link body. All applications for CSO affiliation must be submitted to the Secretary-General of ASEAN. If the ASEAN Secretariat considers the application in conformity with the Guidelines, it shall be referred to the appropriate link body, or when an appropriate link body cannot be identified, the ASEAN National Secretariats, for their views. After four months, unless there is an objection, the application shall be submitted to the ASEAN Standing Committee for its consideration. The ASEAN Standing Committee shall consider the applications based on detailed criteria, relating to membership and conformity of CSO objectives with ASEAN aims, among others.

Historically, ASEAN has been adverse to the participation of civil society groups. During the 1990s opportunity arose under “Track Two meetings” for some form of representation from research institutes and NGOs in ASEAN. [Track One activities are carried out by governments; Track Two activities are carried out by strategic institutes and NGOs in the region.] In 2000, the first ASEAN People’s Assembly was convened (http://siiaonline.org/?q=node/2607). Indeed, in recent years, peripheral engagement with ASEAN has expanded, with more civil society groups convening satellite meetings. For example, there is the ASEAN Civil Society Conference, which was initiated in 2005. There is the ASEAN People’s Forum, initiated in 2008 (http://aseanpeoplesforum.net/). The Working Group for an ASEAN Human Rights Mechanism has been lobbying for the establishment of an ASEAN human rights commission; the lobbying efforts have now gained momentum, with country chapters called national working groups established (http://www.aseanhrmech.org/index.html). In 2006, the Solidarity for Asian People’s Advocacy (SAPA) (http://www.asiasapa.org/index.php?option=com_frontpage&Itemid=1) was initiated with a coordinating office set up in Jakarta so as to be close to the ASEAN Secretariat for lobbying purposes. The primary focus of these civil society conferences has recently been on the creation and establishment of the AICHR.

On 23 October 2009, at the 15th ASEAN Summit, rifts emerged between the member states and civil society organizations. Prior to a scheduled "interface meeting" with Heads of Government, five member states - Burma, Cambodia, Laos, the Philippines, and Singapore - refused to meet the five civil society representatives from those respective countries. The other civil society representatives were instructed that they would not be permitted to speak at the event. Only Dr. Surichai Wangaeo of Chulalongkorn University was allowed to make a statement. Consequently, civil society delegates from Thailand, Malaysia, and Indonesia walked out of the interface meeting.

Reports

Human Rights Defenders	ASEAN's Road Map towards Creating a Human Rights Regime in Southeast Asia
SAPA Task Force on ASEAN and Human Rights	A Performance Report on the first yearof the ASEAN Intergovernmental Commission on Human Rights (AICHR)

News and Upcoming Events

General News

Pillay urges ASEAN to set the bar high with its regional human rights declaration (May 2012)
UN High Commissioner for Human Rights Navi Pillay offered her encouragement to ASEAN in drafting a regional human rights declaration, but called for a meaningful consultation on the draft with the widest spectrum of people in the region before it is presented to ASEAN’s foreign ministers in July. Pillay expressed her hope that the Declaration will play an important role in improving the enjoyment of human rights for people in Southeast Asia. While welcoming the consultation AICHR has had with ASEAN sectoral bodies as well as the planned consultation with NGOs at the end of June, Pillay emphasised that engaging early, in a transparent process of inclusive and meaningful consultation will help the Declaration to acquire the status and popular support it deserves.

ASEAN civil society under stress (May 2012)
Cambodian Prime Minister Hun Sen displayed his finest brinkmanship in his handling of ASEAN-based civil society organizations at the recent ASEAN summit in Phnom Penh. Ahead of the leader's meeting, his government organized a conference of hundreds of government-sponsored non-government organizations (GONGOs) including local entities and those from other ASEAN member-countries.

Total reform is needed to make AICHR independent, effective and relevant to the ASEAN peoples (April 2012)
The performance of the ASEAN Intergovernmental Commission on Human Rights (AICHR) has been disappointing and wanting, epitomized by the lack of transparency, failure to consult with civil society organizations and no demonstrable progress in protecting and promoting human rights, according to a civil society assessment report on the performance of the AICHR for the period of October 2010 to December 2011. The report, titled “A Commission Shrouded in Secrecy”, was released jointly today by the Solidarity for Asian People’s Advocacy Task Force on ASEAN and Human Rights (SAPA TFAHR) and the Asian Forum for Human Rights and Development (FORUM-ASIA). The civil society coalition said a total reform is needed if the AICHR is to become more independent from the governments, more effective in responding to human rights violations and more relevant to the needs of the peoples in the region.

Press release of the Fourth Meeting of the ASEAN Intergovernmental Commission on Human Rights on the ASEAN Human Rights Declaration (April 2012)
According to the press release, the ASEAN Intergovernmental Commission on Human Rights (AICHR) will have a consultation with civil society organizations in late June 2012. However, there is no mention about releasing the draft ASEAN Human Rights Declaration for public comments.

Civil society excluded from drafting process for historic ASEAN Human Rights Declaration (April 2012)
Nearly 150 civil society organizations have issued a “Joint Statement on Calling AICHR to release ASEAN Human Rights Declaration.” The CSOs are expressing disappointment over the continued secrecy and non-transparency in the drafting process for the historic ASEAN Human Rights Declaration (AHRD). They say the drafting committee has shunned all recommendations put forward by the civil society sector, and have called for a practical platform for their meaningful participation in the drafting of the ASEAN rights declaration. The ASEAN Inter-governmental Commission on Human Rights (AICHR) is meeting in Phnom Penh from April 9 -11, 2012.

AIHCR discusses guidelines for engaging CSOs at its Eighth Meeting in Jakarta (March 2012)
The ASEAN Intergovernmental Commission on Human Rights (AICHR) convened the Eighth Meeting of AICHR and the Third Meeting of AICHR on the ASEAN Human Rights Declaration (AHRD) from 9 – 13 March 2012 in Jakarta, Indonesia. AICHR reviewed and adopted the Guidelines on the Operations of AICHR and also had preliminary discussion on the guidelines for engagement with stakeholders, including civil society organizations (CSOs). AICHR is currently negotiating the provisions under the section of Civil and Political Rights.

Proposed Changes in ASEAN Human Rights Declaration a Cause of Concern for CSOs (February 2012)
A leaked draft of the ASEAN Human Rights Declaration reveals that many ASEAN member states intend to water down the declaration with wording that would limit the declaration's scope and application. While officials from Thailand, Indonesia and the Philippines as a block of nations proposed progressive wording, a number of other states, notably Laos, took a hard-line stance, saying that the "realization of universal human rights" must be in the context of "regional and national particularities." The changes proposed in the draft, which was written in January 2012 at the time of the first meeting of ASEAN Intergovernmental Commission on Human Rights on the ASEAN Human Rights Declaration in Siem Reap, Cambodia, are a cause for concern for many civil society organizations because the panel writing the draft is working in secrecy and not consulting with human rights CSOs. ASEAN officials say the proposal is expected to be finalized sometime in 2012 and must be passed by consensus.