Blocked by ‘Non-intervention’

JAKARTA – Two judicial verdicts within a month of each other in different parts of the world show how far Southeast Asia has to go to match emerging transnational human rights standards in the European Union, which ASEAN is trying to emulate.

Last June, the European Union Human Rights Court ordered the government of Turkey to pay Turkish national Nahide Opuz €36,500 as compensation for the state’s failure to protect her from more than a decade of domestic violence.

Previously, in May, a Burmese court extended the house arrest of Nobel Peace laureate Aung San Suu Kyi who has been living under house arrest for most of the last two decades.

For years, the international community and some of Burma’s Southeast Asian neighbours have been trying in vain to secure Daw Suu Kyi’s personal and political freedom – to no avail. Recently, the secretary general of ASEAN, to which Burma belongs, criticised Burmese authorities for putting her on trial anew. But the ASEAN official’s move was quickly countered by some of the group’s member governments, which said it was not the tradition for ASEAN to interfere in the domestic affairs of its member nations.

Almost on reflex, the Burmese government itself joined in the clucking, describing the ASEAN head’s criticism as “not in conformity with ASEAN practice, incorrect in facts, (and) interfering in the internal affairs of Myanmar (Burma).…”

It’s incidents like this that calls into question the relevance – and use – of having something like the new ASEAN Intergovernmental Commission on Human Rights (AICHR), which was inaugurated just this October during the 15th ASEAN Summit in Thailand.

The EU itself welcomed the initiative, but it also called on ASEAN to make full use of the regional rights panel to protect the personal liberties of its citizens.

The truth is that ASEAN is up for a difficult balancing act, given the vast diversity of governing systems and uneven pace of democratisation in the region. Brunei is a constitutional sultanate. Cambodia, Thailand, and Malaysia are constitutional monarchies with multi-party governance. Indonesia and the Philippines are multi-party democracies while Singapore is effectively a single-party state. Laos and Vietnam are single-party socialist states and Burma is the solitary military-ruled state.

Among these nations, only Indonesia, the Philippines, Thailand, and Cambodia have set up national human-rights commissions so far.

State and community 

The main challenge to promoting uniform human-rights standards across the region is the ASEAN principle of ‘non-intervention’. But former ASEAN Secretary General Rodolfo C. Severino of the Philippines would rather see this as one of the key “inter-related and mutually reinforcing” elements of the regional grouping.

In a published commentary on ASEAN’s future, Severino says these elements also include the “informal way” in which ASEAN conducts its business, its decisions being “largely non-binding in the legal sense”. He explains that the Southeast Asian forum has a “non-ideological, pragmatic, and flexible approach to its own affairs”, which is linked to its “tight embrace of the principle of national sovereignty and non-interference in one another’s internal affairs”.

“ASEAN has good reasons for adopting these characteristics,” writes Severino in his 2004 think piece. “In order to understand those reasons, it would be useful to go back to ASEAN’s history to take a look at the nature of Southeast Asia.”

An earlier article in The Pacific Review by Asia politics expert Jurgen Ruland, however, argues that these principles alone do not make the ‘ASEAN way’.

Ruland does concede that “ASEAN’s collective identity (is) crystallised in the revered principle of non-intervention”. Yet he says this is true only to a certain extent, arguing that there is more to the ASEAN collective identity, or the ‘ASEAN way’, than the principle of non-interference.

The concept of shared values and of culture as the basis of collective identity has also been nurtured since the inception of ASEAN, he points out. It is these underlying culturally-based beliefs, he says, that make up the real ‘ASEAN way’.

AICHR member Rafendi Djamin of Indonesia, for his part, says that although the principle of “national sovereignty and non-interference” has been a central tenet of the postwar world order as embodied in the UN Charter, it is no longer understood as closing national doors to the outside world.

Once closely linked to respect for territorial integrity, the principle of national sovereignty has a broader meaning now, says Djamin. Thus, in joining an international institution or association of nations, a country accepts that this involves surrendering a measure of national sovereignty in pursuit of the shared goals of the grouping. This is why Turkey has to accept the EU Human Rights Court’s ruling, which would seem to affect the county’s national sovereignty.

Djamin, a well-known human-rights activist, notes that Article 14 of the ASEAN Charter permits similar interventions on humanitarian grounds. This requires ASEAN members to surrender a small measure of national sovereignty to allow the ASEAN rights body to function.

Journalism professor Danilo Arao of the University of the Philippines also points out that all ASEAN members adhere to the UN Universal Declaration of Human Rights. “(And) even if the protection of human rights leaves much to be desired,” he says, “ASEAN and the international community can take erring countries to task through legal channels like the International Court of Justice and the People’s Permanent Tribunal.”

Promotion and protection

Arao, however, finds the new ASEAN human-rights body “vague in terms of how it can go about ensuring the protection and upholding of human rights”.

According to its terms of reference, the AICHR aims to strike a balance between promotion and protection of human rights.

Critics, though, aren’t confident that enough attention would be given to rights protection. At the very least, Thitinan Pongsudhirak of Chulalongkorn University’s Institute of Security and International Studies in Bangkok sees an inherent contradiction between the principle of non-interference and the goal of the AICHR, commenting, “(This) makes the (ASEAN) charter fundamentally farcical unless the democratisation gaps among members are increasingly bridged towards the highest common denominator.”

For sure, ASEAN believers would beg to disagree. Termsak Chalermpalanupap, director of ASEAN’s Political and Security Directorate, indicates that critics really have nothing to worry about since “promotion and protection of human rights are closely inter-related” – the implication being that ASEAN promotes human rights.

“Promotion (of human rights) will result in improved protection of human rights,” he writes in the brochure 10 Facts About ASEAN Human Rights Cooperation. “When people are better informed of their human rights and fundamental freedoms, they would know how to make use of them constructively. Rights and freedoms in ASEAN are always balanced with duties and responsibilities.”

Counters an unimpressed Thitinan: “Without protection, promotion is difficult, and promoting rights that are not protected is meaningless.”

Termsak, however, is apparently convinced that the ASEAN rights body need not be belligerent or aggressive to get things done. Or as he likes to put it, it does not need to bite. “ASEAN would not have come this far if its member states want to bite one another with sharp teeth just to get things done their own way,” he says.

AICHR’s Djamin meanwhile says that member countries can expect visits from ASEAN Human Rights Body commissioners to seek information on their respective rights situation. But he makes it a point to say that this should not be seen as intervention in internal affairs of ASEAN members.

Such information sharing among ASEAN members on domestic human rights, he says, can go a long way in promoting national accountability to protect human rights. To Djamin, this method is consistent with the unique ‘ASEAN way’ of conflict resolution without intervention.