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The ASEAN Human Rights

Declaration 2012
Catherine Shanahan Renshaw*
Keywords: ASEAN Human Rights Declaration ^ ASEAN Inter-

governmental Commission on Human Rights ^ regional human rights
systems ^ Southeast Asia
1. Introduction
On 18 November 2012, the Heads of State of the ten-member Association of
Southeast Asian Nations (ASEAN) adopted the ASEAN Human Rights
Declaration (‘the AHRD’).1 The AHRD is important for two reasons. First, it
clarifies the mandate of the ASEAN Intergovernmental Commission on
Human Rights (AICHR).2 AICHR, Asia’s first regional human rights institution,
*Associate, Sydney Centre for International Law, University of Sydney (catherine.renshaw@syd

ney.edu.au). I am grateful to Professor Ben Saul for the guidance provided in the preparation
of this article and also to Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human
Rights at the NGO Coalition for International Human Rights Advocacy (Human Rights
Working GroupçHRWG) Jakarta, Indonesia, for her illuminating insights into the drafting
process of the Declaration.
1 Available at: aichr.org/documents [last accessed 20 May 2013]. ASEAN was formed in 1967. Its
Members are: Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the
Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the
Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the
Socialist Republic of Vietnam.
2 Article 1(1) Terms of Reference of the ASEAN Intergovernmental Commission on Human
Rights, July 2009 (‘TOR AICHR’), available at: www.unhcr.org/relworld/docid/4a6d87f22.
html [last accessed 14 March 2013], provides that the ASEAN Intergovernmental
Commission on Human Rights is required ‘[t]o promote and protect human rights and funda-
mental freedoms of the peoples of ASEAN’. AICHR is also required ‘[t]o uphold international
human rights standards as prescribed by the Universal Declaration of Human Rights, the
Vienna Declaration and Programme of Action, and international human rights instruments
to which ASEAN Member States are parties’ (Article 1(6) TOR AICHR). There was initially
some doubt about whether AICHR’s mandate extended to promoting and protecting all
rights listed in the Universal Declaration of Human Rights 1948, UN Res 217 A (III); A/810
at 71, (UDHR) or only to promoting and protecting those rights contained in treaties and con-
ventions that all ASEAN Member States had ratified.
...........................................................................
Human Rights Law Review 13:3(2013), 557^579
558 HRLR 13 (2013), 557^579
was established in 2009 under Article 14 of the ASEAN Charter.3 Second, the
AHRD is seen as a precursor to a formal treaty for the region, in the same

way that the American Declaration of the Rights and Duties of Man preceded
the American Convention on Human Rights, and the Universal Declaration of
Human Rights (UDHR) preceded the two International Covenants.4
The drafting process was controversial. Responsibility for creating the
Declaration rested with AICHR,5 whose representatives are not appointed in
an independent capacity, but remain ‘accountable to their appointing govern-
ments’6 and may be replaced at the discretion of their government.7 The
actual drafting was done by a ‘drafting group’ of human rights experts ap-
pointed by AICHR. The terms of reference provided to the drafting group were
not made public. No drafts of the Declaration were ever officially made public
either, although two were leaked to the public during the course of the draft-
ing process.8 Civil society organisations (CSOs), which had demanded from
the outset that the drafting process be transparent and inclusive, were largely
excluded from participation. Only two regional consultations were held be-
tween AICHR and CSOs, and both occurred when the Declaration was largely
completed.9 Some individual AICHR representatives held national-level con-
sultations with CSOs, but it is difficult to say what effect these consultations
had. The UN High Commissioner for Human Rights said of the drafting pro-
cess, ‘[t]his is not the hallmark of the democratic global governance to which
ASEAN aspires, and it will only serve to undermine the respect and ownership
that such an important declaration deserves’.10
The Declaration has met with mixed reviews. A member of the Philippines
drafting team described it as ‘the ASEAN Magna Carta’, a document that has
finally ‘laid to rest the Asian Values Debate and the spectre of cultural
3 ASEAN Charter of the Association of Southeast Asian Nations, 20 November 2007, available
at: www.unhcr.org/refworld/docid/4948c4842.html [last accessed 23 February 2013]. See
Ginbar, ‘Human Rights in ASEAN: Setting Sail or Treading Water’ (2010) 10 Human Rights
Law Review 514.
4 International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3; and
International Covenant on Civil and Political Rights 1966, 999 UNTS 171.
5 Article 4(2) TOR AHRD.
8 No official draft was ever released, despite the requests of CSOs and the UN High
Commissioner for Human Rights. The drafts, copies of which are on file with the author, are
dated 9 January 2012 and 23 June 2012.
9 The consultations occurred in Kuala Lumpur on 22 June 2012 and in Manila on 12
September 2012. The participants were the representatives of AICHR and representatives of
national and regional CSOs, who were selected by AICHR.
10 Office of the High Commissioner for Human Rights, Press Release, ‘UN rights chief welcomes
focus on human rights and democracy, calls for review of ASEAN draft human rights declar-
ation’, 8 November 2012, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.
aspx?NewsID¼12753&LangID¼E [last accessed 13 February 2012].
The ASEAN Human Rights Declaration 2012 559
relativism’.11 The US State Department has criticised the Declaration on a

number of grounds, one being ‘the use of the concept of ‘‘cultural relativism’’

to suggest that rights in the . . . [UDHR] do not apply everywhere’.12 Many of
the region’s CSOs rejected the Declaration outright, on the grounds that ‘some
of its deeply flawed ‘‘General Principles’’’ will serve to provide ready-made justi-
fications for human rights violations of people within the jurisdiction of
ASEAN governments’.13 This article provides an overview of the AHRD, mea-
suring it against the UDHR and other relevant human rights declarations,
such as the 1993 Vienna World Declaration and Program of Action,14 the 1993
Bangkok Declaration (prepared by Asian governments in the lead-up to the
1993 Vienna World Conference)15 and the 1993 Kuala Lumpur Declaration,
which was drafted by the ASEAN Inter-Parliamentary Organisation (AIPO)
after the Vienna World Conference, at a time when only Brunei, Indonesia,
Malaysia, Thailand, the Philippines and Singapore were members of ASEAN.16
2. Overview
The intention of the drafters was to create a document that met the standards
of the UDHR, and also contained an ‘added value’ for Southeast Asia.17 In
some respects this goal was achieved. Articles 10 and 26 of the AHRD provide
that ASEAN Member States affirm all of the civil and political rights and all
of the economic, social and cultural rights, in the UDHR, as well as the specific
rights listed in the ASEAN Human Rights Declaration.18
11 Villanueva, ‘How the West was won: ASEAN Magna Carta’, Inquirer, 21 December 2012, avail-
able at: opinion.inquirer.net/43189/how-west-was-won-asean-magna-carta [last accessed 23
February 2013].
12 US Department of State Press Release,‘ASEAN Declaration on Human Rights’, November 2012,
available at: www.state.gov/r/pa/prs/ps/2012/11/200915.htm [last accessed 21 December
2012].
13 ‘Human Rights Groups Reject Flawed ASEAN Declaration’, 19 November 2012, available at:
phuketwan.com/tourism/rights-groups-reject-flawed-asean-declaration-17082 [last accessed
20 November 2012] (this was a media release put out by fifty-three individual human rights
groups).
14 UN General Assembly, ‘Vienna Declaration and Programme of Action’, 12 July 1993, A/
CONF.157/23.
15 Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights
(2003) 3 Asian Yearbook of International Law 496.
16 Kuala Lumpur Declaration on Human Rights, October 1993, approved by the Second Plenary
Session of the 14th General Assembly of the AIPO. In 1993, Brunei held observer status.
Vietnam joined ASEAN in 1995; Laos and Myanmar became Members in 1997; and
Cambodia joined in 1999.
17 International Federation for Human Rights, ‘Civil society organisations meet ASEAN
Intergovernmental Commission on Human Rights on the ASEAN Human Rights
Declaration, call for universal standards to be upheld’, 25 June 2012, available at: www.fidh.
org/Civil-society-organisations-meet [last accessed 23 February 2013].
18 There are, however, divergences between the texts. For example, the AHRD does not contain
an equivalent provision to Article 24 UDHR, which provides for the right to ‘rest and leisure,
including reasonable limitation of working hours and periodic holidays with pay’.
560 HRLR 13 (2013), 557^579
Articles 3 and 5 of the AHRD, concerning the right to recognition before

the law19 and the right to an enforceable remedy,20 are identical to Articles 6

and 8 of the UDHR. The prohibition on torture in the AHRD is also an exact
replica of the provision in the UDHR.21 In relation to some rights, such as free-
dom of movement, the AHRD adopts a slightly different expression to the one
used in the UDHR, but the difference is without consequence.22 In other
cases, the AHRD actually expands and clarifies rights contained in the UDHR.
In relation to the prohibition on slavery and servitude, for example, along
with the general prohibition on these things, the AHRD includes references to
‘smuggling or trafficking in persons, including for the purpose of trafficking
in human organs’.23 In a provision that has no counterpart in the UDHR,
Article 4 of the AHRD draws special attention to the rights of women, children,
the elderly, persons with disabilities, migrant workers and vulnerable and mar-
ginalised groups, as ‘inalienable, integral and indivisible parts of human
rights and fundamental freedoms’.
In relation to certain rights, however, the AHRD provisions are different to
the UDHR provisions in small, but not necessarily trivial, ways. For example,
in relation to rights of asylum24 and nationality,25 the AHRD provides that
these rights must be exercised in accordance with national State law. The
AHRD’s right to freedom of thought, conscience and religion includes the
statement that ‘[a]ll forms of intolerance, discrimination and incitement of
hatred based on religion and beliefs shall be eliminated’,26 but does not contain
the expansive right to change religion, and to manifest religion in teaching,
practice, worship and observance as set out in the UDHR.27 The UDHR
19 Although Article 3 AHRD contains an additional sentence to the provision contained in the
UDHR. Article 3 provides: ‘Every person is equal before the law. Every person is entitled with-
out discrimination to equal protection of the law’. Article 6 UDHR provides: ‘Everyone has
the right to recognition everywhere as a person before the law’.
20 Article 5 AHRD provides: ‘Every person has the right to an effective and enforceable remedy,
to be determined by a court or other competent authorities, for acts violating the rights
granted to that person by the constitution or by law’.
21 Article 14 AHRD provides: ‘No person shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment’. Article 5 UDHR provides ‘No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment’. There is no significance
to the deletion of the ‘-ed’ in ‘subjected’ in the AHRD formulation of this right.
22 For example, the provisions on freedom of movement in the AHRD and the UDHR are identi-
cal, save that the Article 15 AHRD is gender inclusive, adding ‘or her’ to the ‘his’ set out in
Article 13 UDHR.
23 Article 13 AHRD. Article 4 UDHR merely refers to slavery and servitude and the prohibition
of the slave trade.
24 Article 16 AHRD.
25 Article 18 AHRD.
26 Article 22 AHRD.
27 Article 18 UDHR. The UDHR provisions would have troubled some followers of Islam in coun-
tries such as Malaysia, Brunei and in parts of Indonesia. Islamic traditions do not permit
Muslims to change religion. See An-Na’im, ‘Human Rights in the Arab World: A Regional
Perspective’ (2001) 23 Human Rights Quarterly 701.
contains the right to peaceful assembly and association.28 The AHRD also con-
tains a right to freedom of assembly, but not a right to freedom of association.29

The right to found a family, guaranteed in the UDHR to men and women of
full age without limitation due to race, nationality or religion, is circumscribed
in the AHRD by the addition of the phrase ‘as prescribed by law’, and does not
contain the UDHR’s prohibition against discrimination.30 The right to work in
the UDHR is more expansive than in the AHRD.31 Yet the AHRD includes a
clause not found in the UDHR, and one which relates specifically to the prob-
lem of child labour, which is prevalent in Southeast Asia:
No child or any young person shall be subjected to economic and social
exploitation. Those who employ children and young people in work
harmful to their morals or health, dangerous to life, or likely to hamper
their normal development, including their education should be punished
by law. ASEAN Member States should also set age limits below which
the paid employment of child labour should be prohibited and punished
by law.32
Other rights included in the AHRD but not in the UDHR, are the rights of those
suffering from communicable diseases, including HIV/Aids;33 and the right to
reproductive health, within the broad ‘right to health’.34 The rights to develop-
ment, peace and the environment, discussed below, are also present in the
AHRD.35
3. The Preamble
The Preamble reaffirms adherence to ‘the purposes and principles of ASEAN as
enshrined in the ASEAN Charter, in particular the respect for and promotion
and protection of human rights and fundamental freedoms, as well as the
28 Article 20 UDHR.
29 Article 24 AHRD.
30 Article 19 AHRD and Article 16 UDHR.
31 Article 23 UDHR provides for the right to equal pay for equal work, without discrimination. It
also provides that everyone who works has the right to remuneration which will give himself
and his family an existence worthy of human dignity, and that it will be supplemented, if ne-
cessary, by other means of social protection. Article 27 AHRD merely states that every
person has the right to work, to the free choice of employment, to enjoy just, decent and fa-
vourable conditions of work and to have access to assistance schemes for the unemployed.
Both the AHRD and the UDHR provide that everyone has the right to form trade unions and
join the trade union of his or her choice for the protection of his or her interests; but the
AHRD adds the phrase ‘in accordance with national laws and regulations’, see Article 27(2)
AHRD and Article 23(4) UDHR.
32 Article 27(3) AHRD.
35 Articles 35^37 AHRD.
562 HRLR 13 (2013), 557^579
principles of democracy, the rule of law and good governance’, and‘a commitment
to the Universal Declaration of Human Rights, the Charter of the United Nations,

the Vienna Declaration and Programme of Action, and other international
human rights instruments to which ASEAN Member States are parties’. It is sig-
nificant that the Preamble specifically reaffirms only those principles in the
ASEAN Charter that are positively related to human rights. In previous ASEAN
human rights instruments, provisions which are adverse to human rights have
been included, leading many to doubt the willingness of ASEAN states to submit
to scrutiny about their human rights practices. For example, the Terms of
Reference of the ASEAN Intergovernmental Commission on Human Rights 2009
lists among the Commission’s guiding principles ‘non-interference in the internal
affairs of ASEAN Member States’.36 This principle is not included in the AHRD.
The ‘object and purpose’ clause in the Preamble changed significantly
throughout the course of the drafting process. An early draft, dated 9
January 2012, contained a broad and ambitious ‘object and purpose’ clause,
which envisaged the Declaration as
a foundational instrument to manifest common values, commitments
and aspirations in the field of human rights promotion and protection
for the peoples of ASEAN, and as a shared vision of ASEAN for the fulfil-
ment of the goals and objectives set forth herein, including establishing
a framework for human rights cooperation through various ASEAN con-
ventions and other instruments dealing with human rights.37
The final draft of the AHRD is much more modest:
CONVINCED that this Declaration will help establish a framework for
human rights cooperation in the region and contribute to the ASEAN
community building process.38
4. Article 1: Born Free and Equal in Dignity and Rights

Article 1 of the AHRD provides that ‘[a]ll persons are born free and equal in
dignity and rights. They are endowed with reason and conscience and should
act towards one another in a spirit of humanity.’ Article 1 of the AHRD repli-
cates Article 1 of the UDHR.39 The drafters of the UDHR drew their text from
the 1948 Pan-American Declaration of Human Rights and Duties (‘the Bogota
Declaration’),40 which was itself drawn from the French 1789 De¤claration des
36 Article 2(1)(b) TOR AHRD.

37 Clause vii, Working draft of the ASEAN Human Rights Declaration, 9 January 2012.
38 Preamble AHRD.
39 In the AHRD, ‘humanity’ replaces the word ‘brotherhood’ used in the UDHR.
40 See Glendon,‘The Forgotten Crucible: The Latin American Influence on the Universal Human
Rights Idea’ (2003) 16 Harvard Human Rights Journal 27.
droits de l’homme et du citoyen, which holds that ‘men are born and remain
free and equal in rights’.41 Article 1 of the 1993 Vienna Declaration of Human

Rights and Program of Action reaffirms Article 1 of the UDHR, providing:
‘[h]uman Rights and fundamental freedoms are the birth-right of all human
beings; their protection and promotion is the first responsibility of
Government’.42 The Preamble to the 1993 Kuala Lumpur Declaration also in-
cludes a statement affirming that the peoples of ASEAN are ‘born free and
equal with full dignity and rights and are endowed with reasoning and
conscience’.43
Article 1 was not the subject of any significant debate or discussion
throughout the course of the drafting process. The provision was amended
only once. In the January 2012 draft, the Article begins with the word
‘Everyone’. In the June draft, and in the final version of the AHRD, the provision
begins with ‘All persons’.44
Article 1 of the AHRD stands in marked contrast to Article 1 of the Kuala
Lumpur Declaration. Article 1 of the Kuala Lumpur Declaration provides:
All human beings, individually and collectively, have a responsibility to
participate in their total development, taking into account the need for
full respect of their human rights as well as their duties to the commu-
nity. Freedom, progress and national stability are promoted by balance
between the rights of the individual and those of the community.45
The Kuala Lumpur Declaration was drafted in the wake of the Vienna
World Conference, where strong statements had been made about the different
41 Sinha, ‘The Axiology of the International Bill of Human Rights’ (1989) 1 Pace Year Book of
International Law 21 at 53.
42 Vienna Declaration, supra n 14.
43 Kuala Lumpur Declaration, supra n 16.
44 It is debatable how significant a change this is. The American Declaration on the Rights and
Duties of Man begins its statement about ‘the freedom and equality of all’ with the phrase
‘all men’. In the drafting of the American Convention, the words ‘all men’ were changed to
‘All persons’. Clearly, ‘All persons’ is the more inclusive in gender terms. But there may be a
more significant difference between ‘all men’ and ‘all persons’. ‘All men’ denotes ‘all mankind’,
or ‘all human beings’: it is a general reference to humanity. The concept of ‘person’ is a legal
conceptça ‘person’ is someone who is recognised under law and who is accorded a particular
bundle of rights as a legal person. It could be argued that the change from ‘everyone’ to ‘all
persons’ suggests a desire on the part of the drafters to impart to the subjects of the AHRD a
legal status as rights-holding subjects. On the other hand, Article 1 UDHR begins with the
words ‘All human beings . . .’. When the UDHR was finally transformed into the two
Conventions, the ICCPR and ICESCR, the broader references to ‘human beings’ and to ‘every-
one’ was preserved. For a discussion on the significance of the use of ‘person’ vis a¤ vis
‘human beings’ or ‘everyone’, see Nussbaum, ‘Human Functioning and Social Justice: In
Defense of Aristotelian Essentialism’ (1992) 20 Political Theory 202.
45 Kuala Lumpur Declaration, supra n 16. The 1993 Bangkok Declaration, supra n 15, while re-
affirming a commitment to the UDHR in its own Article 1, does not contain the UDHR’s
phrase about people being born ‘free and equal, and endowed with reason and conscience’.
564 HRLR 13 (2013), 557^579
developmental stages and priorities of different nations and regions, and where
the idea of ‘legitimate difference’ had acquired a significant degree of currency.

The emphasis in Article 1 of the Kuala Lumpur Declaration on communitarian
principles, on balancing rights and duties, on the idea of total development,
the link between freedom, progress and stability, and the idea of individual
and collective participation, is drawn from the religious and political traditions
of Southeast Asia. The provision speaks to the concerns of many people in
the region to develop a full account of human well-being (‘total development’),
which involves progress at the physical, spiritual and community levels. The
acknowledgment that freedomçwithout which people cannot discover and
articulate their needs and desiresçshould be tempered by obligation to com-
munity, is a principle found in Confucianism and Buddhism.
The absence of any similar statement in the AHRD could be attributed to a
number of factors. One might be the fact that ASEAN’s membership in 2012
was larger than in 1993, and included the ‘CLMV’ States: Cambodia, Laos,
Myanmar and Vietnam. It would have been more difficult, among a larger
group, for the drafters to agree upon the kind of philosophical statement
found in Article 1 of the Kuala Lumpur Declaration. It was also very important
to the drafters of the AHRD, and to ASEAN states, that the AHRD be seen to
‘reach the standard’ of the UDHR.46 Replicating Article 1 of the UDHR was a
step towards achieving this.
5. Article 2: Non-discrimination
Article 2 of the AHRD again replicates the UDHR. It contains the essential
principle of non-discrimination, entitling everyone to all the rights and free-
doms set forth in the AHRD, without distinction of any kind, such as race,
gender, age, language, religion, political or other opinion, national or social
origin, economic status, birth, disability, or other status.
In the course of the drafting process, representatives of Thailand, the
Philippines and Indonesia, unsuccessfully argued that among the prohibited
grounds of discrimination should be ‘sexual orientation and gender identity’.
This was a position supported by several non-governmental organisations
(NGOs) whose work focused on Sexual Orientation and Gender Identity
(SOGI), and several of the regional civil society coalitions working on the
AHRD.47 Malaysia and Brunei, States with majority Islamic populations and
46 See Katsumata, ‘ASEAN and Human Rights: Resisting Western Pressure or Emulating the
West’ (2009) 22 The Pacific Review 619.
47 The International Gay and Lesbian Human Rights Commission, ‘LGBT Report From The
Peoples’ Forum In Phnom Penh, Cambodia’, 30 April 2012, available at: iglhrc.wordpress.
com/2012/04/30/lgbt-report-from-the-peoples-forum-in-phnom-pehn-cambodia/ [last ac-
cessed 21 May 2012].
which apply Shari’a law, strongly objected to the inclusion of rights of SOGI, as
did Singapore.48

6. Article 6: Duties
Article 6 of the AHRD provides:
The enjoyment of human rights and fundamental freedoms must be
balanced with the performance of corresponding duties as every person
has responsibilities to all other individuals, the community and the soci-
ety where one lives. It is ultimately the primary responsibility of all
ASEAN Member States to promote and protect all human rights and fun-
damental freedoms.
The January 2012 ‘working draft’ of the AHRD contains ten alternative formu-
lations of a ‘duties’ provision, suggesting that this provision was one that
caused significant difficulties for those tasked with creating the AHRD.49
Civil society organisations objected very strongly to any reference to ‘balan-
cing’ rights with duties, arguing that: ‘the notion of ‘‘balancing’’ duties against
human rights is alien to the concept of ‘‘inalienable’’ human rights’.50 In her
statement to the Bali Democracy Forum on 7 November 2012, the United
Nations High Commissioner for Human Rights argued that, ‘the balancing of
human rights with individual duties was not a part of international human
rights law, misrepresents the positive dynamic between rights and duties and
should not be included in a human rights instrument’.51
The idea of ‘duties’ has a clear pedigree and place in international human
rights instruments.52 The Preamble to the American Declaration of the Rights
and Duties of Man provides that ‘the fulfilment of duty by each individual is a
48 Mohd Amin, ‘LGBTIQ Rights Should be Excluded’, 10 September 2012, available at: www.
malaysiakini.com/letters/208463 [last accessed 2 October 2012]; and Au, ‘Singapore
Choosing to be Anti-human Rights’, 14 September 2012, available at: yawningbread.word
press.com/2012/09/14/at-asean-singapore-choosing-to-be-anti-human-rights/#more-8006
[last accessed 18 September 2012].
49 Article 12 January 2012 Draft ASEAN Human Rights Declaration.
50 Coalition of National and Regional CSOs,‘Open letter to ASEAN Foreign Ministers at Informal
ASEAN Foreign Ministers Meeting (IAMM) on the ASEAN Human Rights Declaration’,
26 September 2012, available at: www.mekongmigration.org/?cat=21 [accessed 14 March
2013].
51 UN High Commissioner for Human Rights, ‘Statement by the High Commissioner for Human
Rights at the Bali Democracy Forum’, 7 November 2012, available at: www.ohchr.
org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12752&LangID=E [last accessed 10
November 2012]. The High Commissioner drew attention to the fact that even at that late
stage, a draft of the Declaration had still not been released to the public.
52 Glendon points out that in the lead-up to the drafting of the UDHR, the importance of includ-
ing duties was emphasised by participants from China, Latin America, the Soviet Union and
France, see Glendon, ‘Knowing the Universal Declaration of Human Rights’ (1997) 73 Notre
Dame Law Review 1153.
566 HRLR 13 (2013), 557^579
prerequisite to the rights of all. Rights and duties are interrelated in every
social and political activity of man. While rights exalt individual liberty, duties

express the dignity of that liberty’.53 Similarly, Article 29(1) of the UDHR pro-
vides that: ‘Everyone has duties to the community in which alone the free and
full development of his personality is possible.’ The American Convention on
Human Rights also contains a provision on the ‘Relationship between Duties
and Rights’54 and the International Covenant on Civil and Political Rights con-
tains a reference to duties.55 The Preamble to the African Charter on Human
and Peoples’ Rights recognises ‘that the enjoyment of rights and freedoms
also implies the performance of duties on the part of everyone’, and Articles
27 to 29 of the Charter contain specific duties of individuals.56 In sum, nearly
all of the human rights instruments created since the Second World War, with
the exception of the European Convention on Human Rights, have provided ex-
press or implied recognition of duties.57
Civil society organisations seemed very prepared to accept the idea of a place
for duties in the AHRD. It was the idea that rights must be ‘balanced’ against
duties that caused concern. This is understandable, given the particular concep-
tion of duty that has prevailed among some governments in Southeast Asia.58
The leaders of Malaysia, Singapore, Indonesia and Myanmar have all argued,
at different times, that personal rights and civil and political liberties are less
53 Articles XXIX^XXXVIII, American Declaration emphasise specific duties: to society; towards

children and parents; to vote; to acquire an elementary education; to obey the law; to cooper-
ate with the state and the community with respect to social security and welfare; to pay
taxes; and to work.
54 Article 32(1) American Convention on Human Rights.
55 The Preamble to the ICCPR recognises ‘that the individual . . . is under a responsibility to
strive for the promotion and observance of the rights recognized in the present Covenant’.
Such private duties and responsibilities cannot be fulfilled if an individual violates the rights
of other individuals or groups, and the preamble to the Covenant clearly states that, with re-
spect to human rights, individuals have ‘duties to other individuals and to the community’.
56 In particular, Article 27(1) provides that ‘every individual shall have duties towards’, among
others, ‘his family and society’. Article 28 also proclaims a general duty to respect othersça
duty that, if adequately implemented, must encompass the right of each person to human dig-
nity and fundamental human rights and freedoms.
57 In his contribution to the UNESCO Committee on the Drafting of the UDHR, Mahatma Gandhi
suggested that instead of a list of rights, it might be better for the Committee to ‘define the
duties of every Man and Woman and correlate every right to some corresponding duty to be
first performed. Every other right can be shown to be a usurpation hardly worth fighting
for.’ See Gandhi in United Nations Educational, Social and Cultural Organization (ed.),
Human Rights Comments and Interpretations: A Symposium (London: UNESCO, 1949). In the
early 1990s, Paust advised a shift from theoretical inquiries about whether duties existed in
international human rights law, to questions about what sorts of duty correspond to what
sorts of rights in what contexts, how competing rights should be accommodated, and how
these ultimately affect public responsibility: see Paust, ‘The Other Side of Right: Private
Duties under Human Rights Law’ (1992) 5 Harvard Human Rights Journal 51 at 62.
58 See, for example, Freeman, ‘Human rights, democracy and ‘‘Asian values’’’ (1996) 9 The Pacific
Review 352; Tan, ‘Creating ‘Good Citizens’ and Maintaining Religious Harmony in Singapore’
(2008) 30 British Journal of Religious Education 133; and Tan and Leong Wong, ‘Moral
Education for Young People in Singapore: Philosophy, Policy and Prospects’ (2010) 13 Journal
of Youth Studies 89.
important than fulElling duties and responsibilities towards family, community

and nation.59 In relation to ASEAN’s communist members, Vietnam and Laos,

the idea of balancing duties with rights is inherently problematic. In communist
societies, the possession of rights is contingent on the performance of duties.60
Article 51 of the Constitution of the Socialist Republic of Vietnam, modelled on
Article 59 of the 1977 Soviet Constitution, provides: ‘The citizen’s rights are in-
separable from his duties. The State guarantees the rights of the citizen; the citi-
zen must fulfil his duties to the State and society’. Against this background,
CSOs feared that in any balancing act between individual liberties and an indi-
vidual’s duty to ensure the cohesion and security of the State, it would be indi-
vidual liberty that inevitably suffered.61
7. Article 7: Universalism and Particularism

All human rights are universal, indivisible, interdependent and interre-
lated. All human rights and fundamental freedoms in this declaration
must be treated in a fair and equal manner, on the same footing and
with the same emphasis. At the same time, the realisation of human
rights must be considered in the regional and national context bearing
in mind different political, economic, legal, social, cultural, historical
and religious backgrounds.
This provision follows the formulation of Article 5 of the Vienna Declaration:
All human rights are universal, indivisible and interdependent and inter-
related. The international community must treat human rights globally
in a fair and equal manner, on the same footing, and with the same em-
phasis. While the significance of national and regional particularities
and various historical, cultural and religious backgrounds must be
59 This is the very notion that the idea of rights was supposed to resist. Consider, for example,
Dworkin’s idea of rights as ‘trump cards’, which protect the basics of our individual freedom
and liberty against other imperatives: Dworkin, Taking Rights Seriously (Cambridge, MA:
Harvard University Press, 1977). Waldron, ‘Rights in Conflict’ (1989) 99 Ethics 503, argues
that rights are supposed to impose limits on the sacrifices that can be demanded from individ-
uals as a contribution to the general good: ‘designed to pick out those interests of ours that
are not to be traded off against the interests of others in this way’.
60 Howard and Donnelly, ‘Human Dignity, Human Rights, and Political Regimes’ (1986) 80 The
American Political Science Review 801.
61 Civil society organisations viewed as particularly problematic Malaysia’s proposal in the January
2012 draft AHRD to include the following provision:‘The parameters of the enjoyment and exer-
cise of human rights and fundamental freedoms is dependent on the fulfilment of duties and
responsibilities towards other individuals, societies, future generations and the State.’ Vietnam
put forward a proposal that stated: ‘The rights of persons are inseparable from their duties. The
State protects these rights and the persons fulfil their duties towards the State and society.’
568 HRLR 13 (2013), 557^579
borne in mind, it is the duty of States, regardless of their political, eco-

nomic and cultural systems, to promote and protect all human rights

and fundamental freedoms.
Article 7 of the AHRD also reflects Article 8 of the 1993 Bangkok Declaration,
which states:
[W]hile human rights are universal in nature, they must be considered
in the context of a dynamic and evolving process of international norm-
setting, bearing in mind the significance of national and regional parti-
cularities and various historical, cultural and religious backgrounds.
In its Preamble, the 1993 Kuala Lumpur Declaration on Human Rights states:
[T]he peoples of ASEAN accept that human rights exist in a dynamic and
evolving context and that each country has inherent historical experi-
ences, and changing economic, social, political, and cultural realities
and value systems which should be taken into account.
The second sentence of the AHRD, which affirms the realisation of rights ‘in
the regional and national context bearing in mind different political, economic,
legal, social, cultural, historical and religious backgrounds’, generated signifi-
cant protests from CSOs. They identified this sentence as one of the
Declaration’s key shortcomings, which would ‘allow ASEAN Member States to
not respect human rights’ and, in the words of Human Rights Watch,
Thailand, render the ASEAN Human Rights Declaration ‘a tragedy’ for the six
hundred million people of Southeast Asia.62
The concern of CSOs about the inclusion of a reference to the ‘national and
regional context’ echoes the furore that surrounded the adoption of the
Bangkok Declaration by Asian governments in the lead-up to the Vienna
World Conference. The word in the Bangkok Declaration that greatly troubled
human rights activists and western leaders at the time was ‘while’: ‘while
human rights are universal in nature, they must be considered in the context
of a dynamic and evolving process’.63 After tortuous negotiation during the
Vienna World Conference, in the Vienna Declaration, the qualifying ‘while’
was placed in relation to the claim for particularism, rather than the claim for
universalism. The effect of Article 5 of the Vienna Declaration is that regardless
of historical, cultural backgrounds (which can be borne in mind) it is the
62 Phasuk, Human Rights Watch, Thailand quoted in Khemara, VOA Khmer, ‘Mixed Reviews of
ASEAN Human Rights Declaration’, 19 December 2012, available at: www.voacambodia.
com/content/mixed-reviews-of-asean-rights-declaration/1567319.html [last accessed 22
December 2012].
63 Emphasis added.
State’s duty to promote and protect all human rights and fundamental
freedoms.64

Article 7 of the AHRD is best read as a middle path between the Bangkok
and Vienna Declarations. The AHRD draws attention to the fact that different
political, economic, legal, social, cultural, historical and religious backgrounds
should be ‘borne in mind’, but it does not permit States to defer to particulari-
ties of context in the realisation of rights. It is not, in this sense, an endorse-
ment of relativism.
8. Article 8: Limitations
Article 8 of the AHRD contains a limitations clause which provides:
The human rights and fundamental freedoms of every person shall be
exercised with due regard to the rights and duties of others. The exercise
of human rights and fundamental freedoms shall be subject only to
such limitations as are determined by law solely for the purpose of secur-
ing due recognition for the human rights and fundamental freedoms of
others and to meet the just requirements of national security, public
order, public health and public morality and the general welfare of the
peoples in a democratic society.
The limitations clause in the UDHR, Article 29(2), permits limitations on the
basis of morality, public order and the general welfare in a democratic society.
The limitations clause in the AHRD is not, in any substantive way, different to
the limitations clause contained in the UDHR.65 Nonetheless, some CSOs,
some western governments and the UN High Commissioner for Human
Rights, objected to the limitations clause in the AHRD, on the grounds that it
was placed in the ‘General Principles’ section of the text, meaning (in the view
of these actors) that limitations could potentially apply to all rights, including
rights that are non-derogable under international law.
Some regional CSOs were also highly critical of the inclusion of ‘public mor-
ality’ as a limitation on the exercise of rights and freedoms. Yet most interna-
tional human rights instruments include a provision which permits States to
limit certain rights and freedoms on the basis of public morality. The UDHR
64 The phrase ‘national and regional particularities’ was present in the January 2012 draft of the
AHRD. Civil society organisations strongly objected to the inclusion of this phrase. They saw
the word ‘particularities’as a direct attempt to revive the ‘Asian values’debate and as an open-
ing to future concessions to relativism. In the end, the phrase ‘national and regional particu-
larities’ was removed from the final text of the AHRD.
65 Article 29(2) UDHR. One other point to note about the limitations provision in the AHRD,
however, as compared to the one in the UDHR, is that it is located at the beginning of the
AHRD, whereas in the UDHR it is placed at the end of the document. It is doubtful whether
this is of legal significance. It does, perhaps, contribute to the sense of importance that the
limitations clause conveys within the overall text.
570 HRLR 13 (2013), 557^579
limitations provision is very similar to that of the AHRD; the European

Convention on Human Rights permits limitations on certain rights (private

life, freedom of thought, conscience and religion, expression and assembly) on
grounds of public morality; the American Convention on Human Rights lar-
gely follows the European model; the African Charter permits certain rights
to be limited or circumscribed by reference to national law; and the Arab
Charter permits limitations on rights to political participation and information
on the basis of morality.66 Moreover, the constitutions of most ASEAN States,
in one form or another, provide for the limitation of rights on the basis of
public morality.67
The Asia Pacific Forum on Women, Law and Development (APFWLD) sought
the advice of ‘United Nations special mandate holders and CEDAW committee
members’, who ‘unanimously advised that morality clauses have the potential
to undermine women’s rights and should not be used in the AHRD’.68 The
APFWLD argued that ‘morality’ reflected the dominant culture, which tended
to favour some, who were mostly men in power, and marginalise others, who
were mostly women. They argued that in Southeast Asia, political and reli-
gious hierarchies made women the subject of patriarchal and hetero-normative
standards, and excluded the narratives and perspectives of minorities, denying
them access to the processes of deliberation and decision-making within socie-
ties, and that for these reasons,‘morality’ should not be included as a limitation
in the exercise of rights.69
66 Articles 24 and 31 Arab Charter on Human Rights 2004. See Rishmawi,‘The Arab Charter on
Human Rights and the League of Arab States: An Update’ (2010) 10 Human Rights Law
Review 169.
67 For example, Article 41 Constitution of Cambodia 1993 provides in relation to the right of
Freedom of Expression, that: ‘(1) Khmer citizens have freedom of expression, press, publication,
and assembly. No one may exercise this right to infringe upon the rights of others, to affect the
good traditions of the society, or to violate public law and order and national security’; Article
28J Constitution of the Republic of Indonesia 2002 permits the limitation of some rights on
the basis of: ‘morality, religious values, security and public order in a democratic society’;
Article 44 of the Amended Constitution of the Lao’s Peoples Democratic Republic provides that
Lao citizens have the right and freedom of speech, press and assembly and have the right to
set up associations and to stage demonstrations, which are not contrary to the laws; and
Article 10(2) of the Constitution of Malaysia 1957 permits restrictions on the rights of expres-
sion, assembly and association, on the grounds of morality (among other things).
68 Asia Pacific Forum on Women’s Law and Development,‘Adding Value: Removing Morality from
the ASEAN Human Rights Declaration’ (2011), available at: http://www.apwld.org/wp-con
tent/uploads/APWLD-paper-on-Morality_final.pdf [last accessed 19 January 2013].
69 Ibid. In their submission, the APFWLD drew attention to the comments of the Human Rights
Committee, which has stated that ‘the concept of morals derives from many social, philosoph-
ical, and religious traditions; consequently, limitations on the freedom to manifest a religion or
belief for the purpose of protecting morals must be based on principles not deriving exclusively
from a single tradition’. See UN Human Rights Committee (HRC), General Comment No 22 (art.
18): Freedom of thought, conscience or religion, 30 July 1993, CCPR/C/21/Rev.1/Add.4; 1^2
IHRR 30 (1993). See also the Southeast Asia Women’s Caucus on ASEAN, ‘Submission on the
ASEAN Human Rights Declaration’, 21 October 2011, available at: www.apwld.org/latest-
news/womens-caucus-submission-on-asean-human-rights-declaration/ [last accessed 21
February 2013].
Where there is no common position on a particular moral issue within a

State or region, the practice of the European Court of Human Rights is to

afford States a margin of appreciation in relation to public morality limita-
tions.70 On matters of public morality, States are seen ‘by reason of their direct
and continuous contact with the vital forces of their countries as being in prin-
ciple in a better position than the international judge to give an opinion on
the exact content of these requirements’.71 The difficulty perceived by
Southeast Asian critics of a public morality limitation in the AHRD is that the
diversity of opinion on issues of public morality within the region would pro-
vide States with a wide latitude to determine themselves whether or not
freedoms should be restricted in the interests of preserving the prevailing
morality.
Malaysia played a significant role in preserving the ‘public morality’ limita-
tion within the AHRD. Reports from the Second Public Consultation on the
ASEAN Human Rights Declaration, were that the Malaysian representative to
AICHR, Datuk Seri Muhammad Shafee Abdullah, strongly defended the public
morality limitation in the AHRD on the basis that Malaysia’s own constitution
permitted limitations on the grounds of public morality, and that it would
therefore be inconsistent if the AHRD did not permit similar limitations. In a
public statement issued on 19 November 2012, the Southeast Asian Women’s
Caucus on ASEAN claimed that while representatives of some of other
ASEAN nations seemed prepared to abandon a ‘public morality’ limitation,
Malaysia insisted on preserving it.72
9. Article 9: The Avoidance of Double Standards and

Politicisation
In the realisation of the human rights and freedoms contained in this
Declaration, the principles of impartiality, objectivity, non-selectivity,
non-discrimination, non-confrontation and avoidance of double stand-
ards and politicisation, should always be upheld. The process of such real-
isation shall take into account peoples’ participation, inclusivity and the
need for accountability.
70 See Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human
Rights’ (1999) 48 International and Compirative Law Quarterly 638.
71 Handyside v United Kingdom A 24 (1976); 1 EHRR 737.
72 The Southeast Asian Women’s Caucus on ASEAN, ‘ASEAN Human Rights Declaration Limited
by ‘morality’ Say Women’s Organisations’, 19 November 2012, available at: www.iglhrc.
org/binary-data/ATTACHMENT/file/000/000/623-1.pdf [last accessed 14 March 2013].
572 HRLR 13 (2013), 557^579
The final form of this provision in the AHRD was the result of two important
and very late changes. First, when the provision was originally drafted, and

right up until September 2012, the word ‘paramount’ was included before the
word ‘principles’, that is, the provision stated that ‘the paramount principles of
impartiality, objectivity, non-selectivity, non-discrimination, non-confrontation
and avoidance of double standards and politicisation, should always be
upheld.’73 During the second public consultation on the Declaration, held in
Manila in September 2012, CSOs objected to the inclusion of the word ‘para-
mount’, on the grounds that it implied that these considerations were capable
of overriding other principles (such as the universality of all human rights). It
was removed. Second, the final sentence of the provision was not originally
included in the draft and was only added after the second regional consult-
ation with CSOs.
The principles listed in Article 9 of the AHRDçimpartiality, objectivity,
non-selectivity, non-discrimination, non-confrontation and avoidance of
double standards and politicisationçare drawn from Articles 3 and 7 of the
1993 Bangkok Declaration.74 The Bangkok Declaration was signed by all
ASEAN States and also by Asian States such as China and India, at the meeting
of Asian leaders in Bangkok, which preceded the Vienna World Conference. At
the Bangkok meeting, several Asian leaders accused Western States of hypoc-
risy for their attempts to promulgate human rights in other nations. Articles
3 and 7 of the Bangkok Declaration were directed towards highlighting the
inconsistencies in the practice of international human rights, as well as limit-
ing the exposure of Asian States to external criticism. The inclusion of key
words from the Bangkok Declaration, in the AHRD, implies ongoing uncer-
tainty about international human rights on the part of ASEAN states.
Yet the second sentence of Article 9, which is not found anywhere in the
Bangkok Declaration (or in the Vienna Declaration), limits the negative conno-
tations of the first sentence. The emphasis in the second sentence is on the
ideal of deliberative democracyçthe idea of public participation in all levels
of governance and the accountability of those who govern. If the principles
listed in the first sentence (impartiality, objectivity, non-selectivity, non-dis-
crimination, non-confrontation and avoidance of double standards and politi-
cisation) are applied from the perspective of the people’s democratically
73 Emphasis added.
74 Article 3 Bangkok Declaration states: ‘Stress the urgent need to democratize the United
Nations system, eliminate selectivity and improve procedures and mechanisms in order to
strengthen international cooperation, based on principles of equality and mutual respect,
and ensure a positive, balanced and non-confrontational approach in addressing and realiz-
ing all aspects of human rights.’ Article 7 Bangkok Declaration states: ‘Stress the universality,
objectivity and non-selectivity of all human rights and the need to avoid the application of
double standards in the implementation of human rights and its politicization, and that no
violation of human rights can be justified’.
expressed preferences (rather than from the perspective of States and rulers),
then they are less likely to be used against the interests of rights-holders.

10. ‘Value Adding’ in the ASEAN Human Rights
Declaration: Peace, the Environment and Development
The ASEAN Human Rights Declaration contains three ‘solidarity’ rights: the
right to a safe, clean and sustainable environment;75 the right to develop-
ment;76 and the right to peace.77 The wording of these rights in the AHRD lar-
gely tracks their formulation in international human rights treaties and
declarations. Civil society organisations and the governments of Southeast
Asian nations were largely in agreement about the inclusion of these rights in
the AHRD. This is unsurprising. The environment, peace and development,
represent genuinely cross-border ‘regional’ issues, where the actions of individ-
ual States impact on regional neighbours, and where the human rights effects
of environmental degradation, war and poverty, are obvious to citizens and
governments alike. For example, the haze arising from forest fires in
Indonesia in 1997 affected the health of people as far afield as Thailand,
Malaysia, Singapore and the Philippines. Deforestation, overfishing and the
pollution of urban air and waterways, threaten not just the communities in
States where these activities occur, but also those in neighbouring States.
Large-scale development projects such as dams, in places like the Lower
Mekong, affect communities along the river, in Laos, Cambodia, Vietnam and
Myanmar. Internal conflict in nations such as Myanmar causes refugees to
spill over the border to Thailand.
Peace has been prominently articulated in previous Southeast Asian re-
gional instruments. The 1967 Bangkok Declaration, announcing the establish-
ment of ASEAN, put peace as the raison d’etre of the association’s existence.78
In the Preamble to the 1993 Kuala Lumpur Human Rights Declaration, peace
is mentioned as desirable, although it is not put forward in the body of the
Declaration as a ‘right’. Article 1 of the 2008 ASEAN Charter confirms that
the purpose of ASEAN is to ‘maintain and enhance peace, security and stabil-
ity and further strengthen peace oriented values in the region’. Of the fourteen
‘Principles’ set out in the ASEAN Charter, eight are concerned with the preser-
vation of peace, largely through respect for sovereignty.
75 Article 28(f) AHRD.

76 Articles 35^37 AHRD.
77 Article 38 AHRD.
78 For example, the Preamble includes the following, along with several other references to
peace: ‘Desiring to establish a firm foundation for common action to promote regional cooper-
ation in South-East Asia in the spirit of equality and partnership and thereby contribute to-
wards peace, progress and prosperity in the region’ (emphasis added).
574 HRLR 13 (2013), 557^579
Concerns with development and the environment are prominent intheASEAN

Charter.The Preamble to theASEANCharter resolves‘to ensure sustainable devel-

opment for the benefit of present and future generations and to place the well-
being, livelihood and welfare of the peoples at the centre of theASEAN community
building process’and Article 1(9) of the ASEAN Charter lists as one of the ‘pur-
poses’of ASEAN promoting ‘sustainable development so as to ensure the protec-
tion of the region’s environment, the sustainability of its natural resources, the
preservation of its cultural heritage and the high quality of life of its peoples’.
The right to development is repeatedly referred to throughout the Kuala
Lumpur Declaration, both in the Preamble and in the body of the instrument.
The Preamble to the Kuala Lumpur Declaration also contains a Buddhist-
inspired statement on the environment:
Whereas, the peoples of ASEAN realise that human beings cannot live
alone but in harmony with one another, with nature and their environ-
ment to achieve complete fulfilment of their aspirations in a just society
based on harmonious and balances economic, social, political and cul-
tural developments.
The preambular statement in the Kuala Lumpur Declaration points to the indi-
vidual’s fulfilment through their role within the environment and the commu-
nity. The UDHR contains a reference in Article 29 to the community’s role in
making possible the free and full development of the individual’s personality.
These statements make clear that rights such as development, peace and the
environment have both an individual and a collective dimension. The individ-
ual right is the right of any victim or potential victim to obtain the cessation
of the activity and reparation for the damage suffered, or in the case of devel-
opment, to participate (in the fullest sense) in any development proposal. The
collective dimension implies the duty of the State to contribute through inter-
national cooperation to resolving problems at a community level.
It is interesting to note, from the working papers of the drafting group of the
ASEAN Human Rights Declaration, that some debate surrounded the issue of
where in the Declaration certain solidarity rightsçsuch as the right to
peaceçshould be located. Some representatives proposed putting the right to
peace in the Declaration’s ‘General Principles’, before the right to life, indicating
that peace was perceived as an individual right. Others within the drafting
group argued for having the provisions included near the right to development,
aligning it with other collective rights. In the end, the right to peace was
placed with collective rights. But the text of the AHRD nonetheless states that
peace is a right of every individual.79
79 It is notable that the African Charter on Human Rights and Peoples’ Rights mentions the
right to peace only as a right of peoples. It does, however, specifically name the right to na-
tional (domestic) peace as well as international peace.
11. Self-determination and Indigenous Rights?

Two rights that are notably not present in the AHRD are the right to self-deter-
mination and the rights of indigenous peoples. The right to self-determination
is found in Article 1 of both the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR), and the principle of self-determination is found in
Articles 1(2) and 55 of the UN Charter. All ASEAN States voted in favour of
the adoption by the UN General Assembly of the Declaration on the Rights
of Indigenous Peoples, which includes self-determination as a right by virtue
of which ‘a peoples’ may ‘freely determine their political status and freely
pursue their economic, social and cultural development’.80
The explanation for the exclusion of these rights is probably that several
ASEAN governments face the problem of how to achieve national unity
among diverse ethnic and religious groups, and no Southeast Asian govern-
ment wished to inflame secessionist causes with a reference to ‘self-determin-
ation’ in the AHRD. Article 46(1) of the Declaration on the Rights of
Indigenous Peoples, which makes clear that the principle of self-determination
does not include the right to act in a way that undermines sovereignty, in like-
lihood offered insufficient comfort to these governments.
Myanmar, for example, has endured decades of ethnic conflict. The 1948
Constitution of Burma provided for a right of secession for the Shan and Kayah
peoples.81 The 2008 Constitution, however, specifically provides: ‘No part of the
territory constituted in the Union such as Regions, States, Union Territories
and Self-Administered Areas shall ever secede from the Union’.82 Under the
2008 Constitution, ethnic groups are arranged into States, which possess some
powers of self-government.83 But it is, at the time of writing, unclear precisely
how self-government will work; how autonomous the States and self-adminis-
tered zones will be; and whether the different ethnic groups will be satisfied
with the degree of independence which they have been given.
In the Philippines, the Muslim Moro peoples of Mindanao, in the country’s
south, have been engaged in an often violent struggle for autonomy since the
United States granted the Philippines independence after the Second World
War. In October 2012, the Philippines finally announced a peace agreement
with the Moro peoples, which paves the way for the establishment of a new au-
tonomous region, the ‘Bangsamoro new autonomous political entity’, by
80 Article 3 UN Declaration on the Rights of Indigenous Peoples.

81 Silverstein, ‘Politics in the Shan State: The Question of Secession from the Union of Burma’
(1958) 18 The Journal of Asian Studies 43.
82 Article 10 Constitution of the Union of the Republic of Myanmar 2008. Articles 6(a^c)
Myanmar Constitution set out as basic principles of the Union: (i) non-disintegration of the
Union; (ii) non-disintegration of National solidarity; and (iii) perpetuation of sovereignty.
83 The Shan peoples have an added degree of autonomy, in a ‘self-administered zone’: see Article
6 Myanmar Constitution.
576 HRLR 13 (2013), 557^579
2016.84 But again, as in the case of Myanmar, it is unclear whether or not the
‘Bangsamoro new autonomous political entity’ will answer the people’s de-

mands for self-determination and, if it does not, whether peace will last. In
the Cordillera region of the Philippines, the Igorot peoples have also called for
the right to maintain control over their land and resources, practice and de-
velop their own cultures, and determine their own path of development. But
there has been deep disagreement among the Igorot people themselves about
precisely what political form self-determination should take. The Cordillera
Peoples Liberation Army has called for the establishment of an independent
‘Cordillera Nation’. The Cordillera Peoples Alliance has called for the establish-
ment of a ‘Cordillera Autonomous Region’ within the Republic of the
Philippines. The Congress of the Philippines is currently deliberating on
House Bill No 5595 and Senate Bill No 3115, which would create a Cordillera
‘autonomous region’. The measures will allow the regional government to con-
trol its resources and oblige the national government to augment its yearly rev-
enues. Whether the people of the Cordillera’s will be satisfied with these most
recent measures is unclear.
Finally, there is the case of Indonesia. Since gaining independence from the
Dutch after the Second World War, Indonesia has engaged in several armed
conflicts with ethnic groups, who have all claimed a right to independence
from the Republic of Indonesia. These include the Aceh/Sumatra National
Liberation Front; the movement of the Republic of South Moluccas; the
Independence movement of West Papua; and the Fretilin of East Timor.85 East
Timor gained independence from Indonesia in 1999, following a United
Nations-sponsored referendum. The Free Aceh Movement signed a peace
accord with Indonesia in 2005, in the wake of the Asian Tsunami.86 The largely
Christian inhabitants of the Moluccas, which were part of the Netherlands
East Indies, but only formed part of Indonesia after decolonisation, continue
to agitate for independence from Indonesia.87 West Papua also continues to
call for independence, and for the reversal of the 1969 United Nations
84 As in the case of Myanmar, the decades-old conflict between the government of the
Philippines and Moro peoples has its origins in the nation’s colonial history. In 1946, when
the United States granted independence to the Philippines, it incorporated into the new
Republic two previously independent Muslim sultanates.
85 In West Papua/Irian Jaya, the population is ethnically Melanesian and predominantly animist
or Christian, with many supporting integration with Papua New Guinea. In 1965, the
Organisasi Papua Merdake (‘OPM’, Free Papua Movement) launched an armed insurgency
and the Indonesian government responded with a counter-insurgency campaign. By 1999
the insurgency was effectively contained, but the pro-independence vote in East Timor in
1999 reignited the struggle of the OPM.
86 Aceh was never part of Indonesia. In 1949, when the United Nations brokered an agreement
to transfer all the former colonial territory of the Dutch East Indies to the sovereign state of
the Federal Republic of Indonesia, Aceh was included in the new Republic.
87 On 25 April 1950, the South Moluccas declared independence from Indonesia, a move vio-
lently ended by Indonesian troops, four months later.
Resolution concerning the handover of then-West New Guineaçnow Papua

and West Papuaçfrom the Netherlands to Indonesia.88

Given that self-determination was not included in the AHRD, it is perhaps
unsurprising that a reference to the rights of indigenous peoples was also not
included in the Declaration. The AICHR representative from Laos stated that
the right was ‘not appropriate for countries that have no indigenous popula-
tions, such as Laos’.89 This statement is not a reflection of reality. Laos, together
with Vietnam, Indonesia and most other countries in Southeast Asia, still pos-
sess autochthonous populations. These populations exist in relative poverty
and are politically under-represented at local, regional and national levels.
Because they are often geographically located in remote areas, they are vulner-
able to the effects of development projects and natural resource exploitation
(logging, damming and mining).90
12. Conclusion
In 2009, when ASEAN’s newly appointed human rights commissioners
announced their mandate to prepare an ASEAN Human Rights Declaration,
few within the region were optimistic that the product would be a muscular
statement of rights which met international standards. There were sound rea-
sons for scepticism.
First, the States of Southeast Asia have diverse political systems and histor-
ically, their leaders have had varying ideas about the value and importance of
human rights. Southeast Asia cannot describe itself in the same way Europe
did in the Preamble to the 1950 European Convention on Human Rights, as a
region comprised of ‘like-minded’ nations, with ‘a common heritage of political
traditions, ideals, freedom and the rule of law’.91
Second, ASEAN states have been traditionally reluctant to engage with the
international human rights treaty monitoring system. Of the seven major
international human rights treaties, only the Convention on the Elimination
of all Forms of Discrimination against Women (CEDAW) and the Convention
on the Rights of the Child (CRC) have been ratified by all ASEAN Member
88 UN General Assembly, Agreement between the Republic of Indonesia and the Kingdom of the
Netherlands concerning West New Guinea (West Irian), 19 December 1969, A/RES/2504.
89 12 CSOs, ‘AHRD is Hijacked by Narrow-minded National Interests’, 13 September 2012, avail-
able at: www.burmapartnership.org/2012/09/ahrd-is-hijacked-by-narrow-minded-national-in
terests [last accessed 19 October 2012].
90 Clarke, ‘From Ethnocide to Ethnodevelopment? Ethnic Minorities and Indigenous Peoples in
Southeast Asia’ (2001) 22 Third World Quarterly 413.
91 Preamble, European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950, ETS 5, as amended by Protocols Nos 11 and 14, ETS 5.
578 HRLR 13 (2013), 557^579
States.92 Even in relation to these treaties, several ASEAN States have entered
substantial reservations.93 Only the Philippines is a party to the 1966 First

Optional Protocol to the International Covenant on Civil and Political
Rights,94 allowing its citizens the right of individual petition to the Human
Rights Committee.95 The reluctance to engage in the international treaty
system suggests, at the least, a region-wide ambivalence about subjecting gov-
ernment action to external scrutiny, and at the most, ongoing State-level resist-
ance to the international human rights project altogether.
Third, the ‘Asian Values’debate and the Bangkok Declaration led some to fear
that even if a Declaration could be agreed upon, it would be vacuous, describ-
ing rights at a level of generality which permits multiple and conflicting inter-
pretations; or worse, that the AHRD would explicitly constrain the rights of
individuals and groups in favour of a broad discretion permitting States to
limit freedoms on grounds such as public security, public health or public mor-
ality. Perhaps the greatest fear was that an ASEAN Human Rights
Declaration would re-open the question of the universality of rights, which
had lain dormant since the 1997 Asian Financial Crisis robbed Southeast
Asia’s ‘tiger economies’ of the justification for their rhetoric of human rights
exceptionalism.
Against this backdrop, what assessment should be made of the ASEAN
Human Rights Declaration? The text reflects the tension that exists in
Southeast Asia between the aspiration on the part of some Southeast Asian
States to endorse universal human rights and an ongoing reluctance on the
part of others to cede sovereignty. The former impulse is evident in the extent
to which the AHRD endorses and replicates the UDHR. The latter is evident in
the specific provisions of the AHRD that defer to national law, and in the
broad provisions that exalt ideas about ‘the avoidance of double standards
and politicisation’. The tension is perhaps inevitable, given the different his-
tories and political systems of Southeast Asia’s ten nations.
Nonetheless, the AHRD differs from the 1993 Bangkok Declaration in im-
portant ways. The Bangkok Declaration was framed as a protest against a
world order perceived as perpetuating injustices against developing countries:
the practice of human rights was projected as an instrument of the West,
92 Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249
UNTS 13; Convention on the Rights of the Child 1989, 1577 UNTS 3.
93 Brunei has entered a reservation in regard to provisions of CEDAW that may be contrary to
the Constitution and to the beliefs and principles of Islam. Malaysia has declared that acces-
sion to CEDAW is subject to the understanding that the provisions of the Convention are not
contrary to and do not conflict with the Constitution and the beliefs and principles of
Islamic law. Singapore has similarly entered a reservation that provides that all of its obliga-
tions are subject to Singaporean law. Generally on reservations of ASEAN states, see Linton,
‘ASEAN States, their Reservations to Human Rights Treaties and the Proposed ASEAN
Commission on Women and Children’ (2008) 30 Human Rights Quarterly 436.
94 1966, 999 UNTS 171.
95 The Philippines acceded on 22 August 1989.
selectively utilised to suit the West’s purposes. This sentiment is not present in
the AHRD. The focus of the Declaration is squarely on the region, and on the

challenge of mapping human rights onto the political landscape of Southeast
Asia. The problem is that there is no unanimity among the States of the
region about how this might best be done.
The AHRD is, as the drafters repeatedly insisted, intended to be a ‘political
instrument’.96 In the end, it is probably not the finer details of the text that
will determine its potential, but the practices of interpretation that evolve as
the Declaration is invoked and applied by AICHR, CSOs and human rights ac-
tivists. How States respond to these invocations will be the litmus test of the
Declaration’s worth. The great strength of the instrument is that it emanates
from the region itself: no Southeast Asian government will ever again be able
to deflect criticism on the basis that human rights are an ‘external imposition’.
96 Iman Santosa and Ririhena, ‘ASEAN Leaders Adopt Lame-duck Rights Declaration’, 19
November 2012, The Jakarta Post, available at: www.thejakartapost.com/news/2012/11/19/a-
sean-leaders-adopt-lame-duck-rights-declaration.html [last accessed 21 February 2012].

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Human Rights Law Review 13:3 ß The Author [2013]. Published by Oxford University Press.

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The ASEAN Human Rights

Keywords: ASEAN Human Rights Declaration ^ ASEAN Inter-

*Associate, Sydney Centre for International Law, University of Sydney (catherine.renshaw@syd

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relativism’.11 The US State Department has criticised the Declaration on a

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Articles 3 and 5 of the AHRD, concerning the right to recognition before

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4. Article 1: Born Free and Equal in Dignity and Rights

36 Article 2(1)(b) TOR AHRD.

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53 Articles XXIX^XXXVIII, American Declaration emphasise specific duties: to society; towards

important than fulElling duties and responsibilities towards family, community

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7. Article 7: Universalism and Particularism

borne in mind, it is the duty of States, regardless of their political, eco-

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limitations provision is very similar to that of the AHRD; the European

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Where there is no common position on a particular moral issue within a

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9. Article 9: The Avoidance of Double Standards and

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75 Article 28(f) AHRD.

Concerns with development and the environment are prominent intheASEAN

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11. Self-determination and Indigenous Rights?

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80 Article 3 UN Declaration on the Rights of Indigenous Peoples.

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Resolution concerning the handover of then-West New Guineaçnow Papua

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