However, a leaked copy of the proposed Charter is now circulating on the internet. On the matter of human rights, the treaty is.... underwhelming.

Human rights, etc, are only mentioned in 3 places:

In Article 1 - Purposes

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 ASEAN Member States.

In Article 2 - Principles

2. ASEAN and its members 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;

(i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;

(j) upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;

In Article 14 – ASEAN Human Rights Body

1. 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.

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

Even more glaringly, it makes only a vague mention about setting up a 'human rights body', whose terms of reference would be determined by foreign ministers.

Why foreign ministers? Why not law ministers or the Secretary-General of Asean? Immediately one suspects, as I have all along, that this 'human rights body' is only meant for public relations purposes, particularly for warding off criticism by the Western powers. I cannot help but imagine that each time the West makes a stink about some major human rights failing in any Asean country, our foreign ministers will then rouse the otherwise dormant 'human rights body', asking them to produce a report that will naturally pooh-pooh the criticism.

Am I too cynical? Can't the foreign ministers instruct the 'body' to carry out some detailed investigations and suggest substantive corrective measures? Theoretically, yes, but then it will come up against Article 2, items (e) and (f).

2. ASEAN and its members states shall act in accordance with the following principles:

(e) non-interference in the internal affairs of ASEAN Member States;

(f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion;

But isn't the principle of non-interference sacred in international affairs? No more. As we develop a shared sense of global humanity, it's becoming unconscionable to do nothing when other governments abuse their own citizens. International law is now moving towards a recognition that the world and regional communities have a responsibility to intervene and protect the vulnerable.

For example, in 2005, world leaders who were in New York for the Plenary Meeting of the UN General Assembly reached a consensus on what is called an Outcome Document outlining a "Responsibility to Protect" (R2P). This set out the international community's obligation to use diplomatic, humanitarian and if necessary, "collective action" (diplomatic code for sanctions and armed intervention) to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. R2P is intended as a path for making progress toward preventing and ending grave human rights abuses. [1]

Considering the toothless text in the Asean Charter, where do we go from here if we want human rights to be respected and a mechanism to enforce it?

As I have mentioned in the earlier essay, Towards a human rights mechanism, an inspiring example would be the European Convention on Human Rights [2]. This is a separate treaty from the treaties that established the European Union. In fact the countries acceding to the Convention are more numerous than the member states of the EU.

The European Convention is a lengthy document that details the rights and freedoms it seeks to protect, and establishes a Commission and Court to investigate and try cases that involve violation of those rights.

The signatory countries are held responsible for ensuring that the Commission's and Court's rulings are honoured by the member country involved in the case.

From this example, I believe the way forward for our region is to push for a separate treaty: an Asean (or Asian) Convention on Human Rights that is likewise detailed and operable. We cannot rely on the Asean Charter to do anything meaningful in this regard.

How can we get there if Asean includes recalcitrant countries like junta-ruled Burma? As it is, the Asean Charter requires ratification by all member states before it can come into effect. What prospect of an Asean Convention on Human Rights?

This is where I need to bring up the Report by the Eminent Persons Group (EPG) on the Asean Charter. In December 2005, ten worthies were appointed to make suggestions on how to improve Asean. It was their report that led to the Asean Charter that will be signed later this month, but -- and this is quite depressing -- the final text of the Asean Charter is in many ways a diluted version of the EPG Report [3].

For example, the Report said, a "flexible application of 'ASEAN minus X' or '2 plus X' formula may be applied", meaning that if 2 or more Asean countries want to go ahead and implement something, they should do so. Other countries can sign on later.

This flexibility is critical to get started on a human rights mechanism, but somehow in the final Charter, this flexibility is only allowed for the "implementation of economic commitments" (Article 21). Why not for human rights?

As a matter of interest, the EPG Report also envisaged a future Asean Union "in which human rights and fundamental freedoms of all shall be protected by the rule of law and regional integration, and human security is guaranteed to every ASEAN citizen." [4]

To this end, it said, "The EPG discussed the possibility of setting up of an ASEAN human rights mechanism, and noted that this worthy idea should be pursued further, especially in clarifying how such a regional mechanism can contribute to ensuring the respect for and protection of human rights of every individual in every Member State." [5]

You would note that the Report's mention of a mechanism for the protection of human rights -- suggesting a set of investigative and enforcement procedures -- has now become the vague "body" in the Charter. Another climbdown.

Even more interestingly, the Report had suggested a greater involvement of civil society in Asean's work.

"[T]he idea of establishing some consultative/advisory councils for interacting with the civil society and Parliamentarians from ASEAN Member States were also discussed. The EPG recommends that the ASEAN Charter should provide channels at different levels for regular consultations through appropriate mechanisms that may be established for this purpose." [6] (Emphasis mine)

"ASEAN should engage representatives of civil society, think-tanks and the ASEAN Inter-Parliamentary Assembly (AIPA, previously known as AIPO), among others, who can assist to better communicate the objectives and activities of ASEAN to the public, and to provide feedback on their current concerns." [7] (Emphasis mine)

Under "Organisational Structure", the EPG Report recommended that the various institutional organs of Asean "undertake regular consultations with Parliamentarians in ASEAN Member States (AIPA), representatives of the private business sector, civil society organisations, human rights groups, and other stakeholders." [8] (Emphasis mine)

All these disappeared on the way to the Asean Charter. In their place is another display piece, the Asean Foundation.

Article 15 of the to-be-signed Charter says,

1. The ASEAN Foundation shall support the Secretary-General of ASEAN and collaborate with the relevant ASEAN bodies to support ASEAN community-building by promoting greater awareness of the ASEAN identity, people-to-people interaction, and close collaboration among the business sector, civil society, academia and other stakeholders in ASEAN.

2. The ASEAN Foundation shall be accountable to the Secretary-General of ASEAN, who shall submit its report to the ASEAN Summit through the ASEAN Co-ordinating Council.

(Emphasis mine)

That's it? you ask. Indeed, that's it.

Did you notice how the words "consultative", "advisory" and "feedback" in the EPG Report became just "collaborate" in the ASEAN Charter?

Did you notice that whereas the Report suggested multiple channels of communication and consultation, the Asean Charter delegated it to a Foundation as the sole point of contact, and which passively issues a report to the Secretary-General annually?

Did you notice that whereas the Report mentioned consultation with human rights groups among others, the Asean Charter leaves out mention of such groups when setting out the collaborative function of the Foundation?

The ASEAN Charter is as diluted as a barrel of tea made from a single teabag. Nevertheless, you're going to hear all manner of laudatory news stories in our local media when the document is signed. What a great step forward for the regional grouping, they will doubtless tell you. Don't say I didn't warn you.

© Yawning Bread