From commitment to compliance: ASEAN's human rights regression?

Abstract

Whether it is the persecution of the Rohingya, the disappearance of human rights activists, the general limiting of freedom of speech across the region, or the resumption of the arbitrary use of the death penalty, Southeast Asia can be said to be facing a human rights crisis. This human rights crisis is though occurring at a time when the region’s institution, the Association of Southeast Asian Nations (ASEAN), has never been so interested in human rights. After a lengthy period of time in which ASEAN either ignored, or paid lip service to human rights, the Association has created a human rights body – the ASEAN Intergovernmental Commission on Human Rights (AICHR) – and adopted an ASEAN Human Rights Declaration (AHRD). In this article, I utilize the Spiral Model to explain how, when ASEAN member states are regressing in their commitment to human rights, an intergovernmental body continues to promote their commitment and lay the groundwork for their compliance.

Keywords:

• AICHR
• ASEAN
• spiral model
• human rights
• norm contestation

Acknowledgments

I am very grateful to the AICHR representatives that made time in their busy schedules to speak to me and read drafts of this article. The article benefited from feedback I received from presentations at ISA and the S. Rajaratnam School of International Studies, Singapore. I am also grateful for the comments on earlier drafts by Dr. Matthew Wall, Dr. Luca Trenta and the incisive comments from the anonymous reviewers and the guidance from the editors of Pacific Review.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Interviews conducted with Dinna Wisnu, current Indonesian AICHR representative, March 17 2016. Rafendi Djamin, Indonesian AICHR representative 2009–2015, March 18 2016. Sriprapha Petcharamesree, Thailand AICHR representative 2009–2012, March 16 2016. Seree Nonthasoot, current Thailand AICHR representative, March 14 2016 and October 23 2017. Barry Desker, current Singapore AICHR representative, October 12 2017. For matters of confidentiality, I have not attributed the interviewees to points made in this article.

2 In their press release the ASEAN Civil Society Conference/ASEAN Peoples Forum 2017 stated: ‘Poor and innocent people and leaders of groups challenging government policies become targets of extra judicial killings and forced disappearances in most countries in Southeast Asia. The cases of Jonas Burgos, Sherlyn Cadapan, Karen Empeno and Gloria Capitan from the Philippines, Sombath Somphone from Laos, Thailand’s Somchai Neelaphaijit and Porlajee ‘Billy’ Rakchongchaoren, Malaysia’s Raymond Koh, and Myanmar’s U Ko Ni among hundreds of other cases of enforced disappearances and extra-judicial killings in Southeast Asia remain unresolved showing how impunity still prevails in the region’ (ASEAN Civil Society Conference, 2017).

3 AICHR is currently pursuing eleven thematic studies. Thematic studies, regional workshops, thematic workshops, seminars, study visits, training programmes, road shows are all types of activities and programmes that AICHR representatives can initiate in order to achieve, through Task Forces, the goals established by AICHR’s Work Plan. AICHR is currently pursuing the second of its Five-Year Work Plans (2016–2020).

4 The ToR contains the provision that it must be reviewed after its initial five years by ASEAN Foreign Ministers and then can be reviewed at subsequent times by the foreign ministers on AICHR’s recommendation.

5 Although officially flexible engagement was rejected by ASEAN – the official nomenclature is enhanced interaction – many of its features subsequently informed ASEAN behavior (see Acharya, 2014, p. 151–152).

6 The specifics governing the engagement between AICHR and Sectoral Bodies are contained in section 10 of the Guidelines on the Operations of the ASEAN Intergovernmental Commission on Human Rights (AICHR). The language does not authorise AICHR to require conformity by Sectoral Bodies, instead the working relationship is couched in phrases such as ‘recommend’, “request”, and AICHR can only attend sectoral bodies meetings by invitation. The line of authority between AICHR and ASEAN’s Sectoral Bodies is ambiguous hence paragraph 10.3: ‘The format and level of participation of such engagement will be determined through consultations by AICHR and relevant sectoral bodies’ (ASEAN, 2012c).

7 Funds for AICHR’s Work Plan can come directly from member states or via an Endowment Fund, but they can also be sourced from Dialogue Partners, donor countries, international agencies, the private sector and nongovernmental organisations. Although the caveat is added that any funding from, ‘non-ASEAN Member States shall be solely for human rights promotion, capacity building and education’, and not, therefore presumably, protection (ASEAN, 2012c, paragraph 13.1.2).

8 On the importance of external legitimacy in the creation of AICHR see Poole (2015).

9 On the December 13–14 2017 in Da Nang, Vietnam, Nguyen Thi Nha, the Vietnamese AICHR Representative, held an AICHR Regional Workshop on Enhanced Access to Education for Children with Disabilities. This was held back-to-back with the 4th meeting of the Task Force on the Mainstreaming of the Rights of Persons with Disabilities in the ASEAN Community.

10 The lack of initiatives from those AICHR representatives that concurrently hold government positions can be explained by (a) their concern that doing so will create tensions between ministries/departments within their own government as they are seen to impinge on someone else’s area of concern (b) a bureaucratic structure that requires multiple approvals before it can be initiated thus removing incentives for doing so, or (c) the representatives general lack of interest in human rights.

11 Vietnam, Laos and Cambodia continue to suffer from the munitions dropped during the Vietnam War and landmines were used extensively in Myanmar’s civil war.

Additional information

Notes on contributors

Alan Collins

Alan Collins is a professor of International Relations at Swansea University. He is the author of Building a People-Oriented Security Community the ASEAN Way (Routledge, 2013) and the editor of Contemporary Security Studies (Oxford University Press).