INTRODUCTION

On November 18, 2012, heads of state of the Association of Southeast Asian Nations (hereinafter “ASEAN”) met in the Cambodian capital of Phnom Penh and adopted the ASEAN Human Rights Declaration (hereinafter “the Declaration”).

The ASEAN Human Rights Declaration, which now represents an important component of that system, consists of three constitutive parts and in the next three sections following ASEAN background, each is examined in turn. First, it consists of politics, or a political context, in which changing political conditions in ASEAN, including its commitment to human rights, provide an enabling environment for the development of the system and its most significant achievement to date: the Declaration. Second, it consists of a process in which different stakeholders compete to exert influence over the system, including the Declaration. Third, it consists of a product: the Declaration itself.

BACKGROUND: ASEAN AND ITS HUMAN RIGHTS SYSTEM

As in some other multi-lateral organizations, the language of ASEAN diplomacy refers to three distinct “tracks” or institutional layers; Track One covers governmental and intergovernmental bodies; Track Two, non-governmental bodies enjoying official ASEAN recognition; and Track Three, independent bodies, including civil society organizations, which interact with ASEAN organs.

POLITICS: THE POLITICAL CONTEXT TO THE DECLARATION

ASEAN's composition as a disparate group of countries creates distinct political challenges in the development of the ASEAN human rights system — differences that are evident in the subsidiary Declaration of 2012. These political challenges arose particularly from the expansion in membership in the late 1990s, with the accession of poorer and more authoritarian states.

One key cleavage in ASEAN divides the “ASEAN Six” (Indonesia, Thailand, the Philippines, Malaysia, Singapore and Brunei) from the “CMLV countries” (Cambodia, Myanmar, Laos and Vietnam) or the more economically-prosperous states from their poorer, and historically conflict-ravaged, neighbors. In the case of human rights, therefore, the “ASEAN Six” versus the “CLMV” split, and variations of it, can make it difficult to reach agreement within ASEAN, hindering the development of new initiatives.

Despite these differences between member-states and the cleavages to which they give rise, plans for an ASEAN Community were crystallized in the ASEAN Charter adopted on November 20, 2007. As a core principle, the Charter calls for “respect for fundamental freedoms, the promotion and protection of human rights and the promotion of social justice”, giving rise to political and legal obligations on the part of member-states.