MARUAH (Singapore Working Committee for an ASEAN Human Rights Mechanism) is encouraged that the Governments of the ASEAN Member States have reached an agreement on this fundamental shift in ASEAN, from a loose grouping of countries to a rules- based system. The ASEAN Charter will enable ASEAN to function in a more cohesive manner. This is a step in the right direction after 40 years. This milestone moment should mark the start of ASEAN’s progress to becoming a more effective and respected regional bloc.
Our group’s interest is based on the understanding that human rights should form the fundamental bedrock upon which all other agreements should be devised. MARUAH has reviewed the ASEAN Charter from this perspective, and this position paper is the result of that review. While we understand that the ASEAN Way has been the operating principle underlying the ASEAN Charter negotiations, we have also appraised the ASEAN Charter for the appropriate compliance and governance provisions such that implementation from a rules-based approach will be the operating principle for all ASEAN Member States.
With that approach, MARUAH makes the following comments:
1. Our sincere congratulations to ASEAN on successfully negotiating an ASEAN Charter to be signed by all ASEAN states based on the ASEAN Way of consensus and goodwill. This is no small feat, and the ASEAN Member States have recognized the collective will of the peoples of ASEAN in bonding themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity. The signing of the ASEAN Charter by all Member States is a positive step in itself.
2. We are also heartened by the enhanced role of the Secretary-General and that the ASEAN Secretariat will be supported by the Committee of Permanent Representatives to ASEAN and the ASEAN National Secretariats. All of these developments augur well for greater cohesion, community building and governance in accordance to the provisions of the ASEAN Charter
3. We note the provision in Article 20 that permits modes of decision-making contained in ASEAN legal instruments to operate instead of the traditional approaches of consultation and consensus, which is a clear indication of the evolution of ASEAN towards becoming a rules-based regional entity
4. We take heed of the Preamble which states clearly the ideology of ASEAN, and are in particular most heartened by the resolution of the ASEAN Heads of State “to ensure sustainable development for the benefit of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process” ; and the adherence of the ASEAN Heads of State “to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms.” Both of these statements embrace principles fundamental to the four tenets (economical, social, cultural and political) of human rights.
5. We are pleased at the agreement to establish an ASEAN human rights body, with terms of reference that are yet to be determined. This decision is indeed a coming of age for ASEAN. It is laudatory that ASEAN Member States and the ASEAN Secretariat have heeded the call from civil society organisations to take human rights within ASEAN to a higher level. It is also heartening to note that ASEAN as a region has an opportunity to become a global player in human rights, alongside other regional blocs that already have human rights provisions. ASEAN too has heeded the calls from within its Member States which have established national human rights institutions.
The ASEAN Charter holds much promise based on the above observations. However, MARUAH also has some concerns which are as follows.
6. The Charter does not provide adequate comfort on ASEAN’s processes in dealing with non-compliance by Member States of the Charter. The relevant provisions remain vague and open to different interpretations. While such ambiguity can be valuable and beneficial in certain circumstances, it may be a double-edged sword.
In addition, the governance provisions for the various organs of ASEAN (Chapter IV, Articles 8 to 13) do not clearly spell out the decision-making processes to be adopted by them. It seems that they are expected to adopt the consensus approach, subject to any other modes of decision-making contained within ASEAN legal instruments (Chapter VII, Articles 20 and 21). However, many key ASEAN legal instruments remain to be implemented within ASEAN. As such, it is imperative for ASEAN to implement more legal instruments with robust modes of decision-making as quickly as possible, for decision-making to take on a truly rules-based approach.
We highlight this as there is currently a lack of ASEAN legal instruments in the area of human rights, and we are therefore concerned about whether and how the ideological position under the Preamble to the ASEAN Charter will be maintained and/or implemented, in the absence of any institutional mechanisms.
7. While we appreciate the provisions on the protection and promotion of human rights (Chapter I, Articles 1(7) and 2(2) (i); Chapter IV, Article 14), we are concerned with the conditionality of the phrase “with due regard to the rights and responsibilities of Member States of ASEAN” (Article 1, para 7). Human rights are indivisible, universal and inalienable. We are perturbed by what we believe to be contradictions, and hope to obtain clarification on such provisions across the Charter so that ASEAN’s good work and noble objectives in protecting and promoting human rights are not compromised or hindered by other provision
8. We would also like to seek assurance on how the ASEAN Charter would function as a guiding principle, in situations where respect for the sovereignty of Member States may be in direct conflict with human rights violations within that Member State. We draw attention, in particular, to the principle of “non-interference in the internal affairs of ASEAN Member States” (Chapter I, Article 2(2) (e)) and other similar provisions. These provisions under the ASEAN Charter may render it difficult for any organ of ASEAN, including the ASEAN human rights body, to assert a rules-based approach to human rights and may result in non-action when faced with severe cases of human rights violations. We speak in particular reference to the difficulties ASEAN has already faced in approaching the crisis in Myanmar.
9. We would like to emphasise the need to build into the ASEAN Charter, an institution to offer consultative status to civil society processes, including those with human rights interests. The ASEAN Charter currently contains possible avenues by way of the ASEAN National Secretariats (Chapter IV, Article 13) or the Dialogue Coordinator (Chapter XII, Article 42), but there are no clear provisions for civil society organisations to formally participate in the work of ASEAN. We will not belabour here the role of the civil society sector. For the ASEAN motto of “One Vision, One Identity, One Community” (Chapter XI, Article 36) to be fully realized, ASEAN must include the civil sector. This apparent lack of inclusiveness is disheartening, as civil society actors have been sincerely engaged with the ASEAN Charter process, up to the point that the process was handed over to the High Level Task Force for drafting. We would also like to state for the record that it was disappointing that civil society actors, who have been ardent supporters of ASEAN, were not engaged on the ASEAN Charter before the Thirteenth ASEAN Summit, especially after the completion of the technical work of the High Level Task Force.
10. We understand that the ASEAN Charter is intended to create a framework, within which agreements between the Member States on specific issues will be implemented. However, we are disappointed that the ASEAN Charter does not contain any specific reference to or mention of women, children and migrant workers
The International Labour Organisation estimated the total number of migrants originating from ASEAN Member States in 2005 to be 13.5 million, 39 per cent of whom were located in other ASEAN Member States. The large and growing number of irregular migrants means that managing migration and ensuring migrants’ protection have become pressing issues, and ASEAN has recognized the importance of this major task with its recent Declaration on the Protection and Promotion of the Rights of Migrant Workers.
These vulnerable groups represent some of the most pressing challenges facing ASEAN today, as ASEAN Member States are the world’s biggest supply of labour, especially women, to other countries. We therefore believe that these groups should have merited specific mention in the ASEAN Charter
In this regard, we highlight that all of the ASEAN Member States have ratified the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention for the Rights of the Child (CRC). Instead of awaiting the establishment of the ASEAN human rights body, the timeline for which is unknown, we recommend that ASEAN pro-actively establishes a programme to immediately and fully implement the provisions of international law applicable to such vulnerable groups. This would send a strong signal of ASEAN’s commitment to human rights, while also making ASEAN’s work directly relevant to many more of its peoples.
11. Lastly, we note with some level of anxiety that the ASEAN Charter will enter into force only after ratification by all ASEAN Member States, without any specific provision within the ASEAN Charter or elsewhere for ratification dates. This is an area for concern because, so long as any Member State does not ratify the ASEAN Charter, it will not come into force. There is therefore a possibility of the ASEAN Charter not coming into force for an extended period of time, or even not at all.
At present, there is no stated timeline for procuring the Member States’ ratification of the ASEAN Charter. This leaves open the possibility of the ASEAN Charter being signed and yet not coming into force for a prolonged period. The Singapore Foreign Minister George Yeo has recognised this and has called for all Member States to ratify the ASEAN Charter within one year from the date of signing, and it would be helpful for this target to be accepted by all Member States
Furthermore, the founding Member States, namely Indonesia, Malaysia, the Philippines, Singapore and Thailand, should set an example for the other Member States by ratifying the ASEAN Charter as soon as possible.
The review of the ASEAN Charter after five years should also be made mandatory and not optional (Chapter XIII, Article 50). This will ensure that ASEAN Member States pro-actively consider the continued relevance of the ASEAN Charter and update it as necessary to meet new challenges.
In conclusion, we at MARUAH (Singapore Working Committee for ASEAN Human Rights Mechanism) applaud the governments of all ASEAN Member States for getting the ASEAN Charter off the ground and for committing the necessary resources for this process to succeed. We feel that through the ASEAN Charter, more good will be achieved for the people of ASEAN. We hope the clarifications we seek will be answered and we hope we can contribute to this process of establishing the ASEAN human rights body.