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THE ASEAN HUMAN RIGHTS DECLARATION AND THE IMPLICATIONS OF RECENT SOUTHEAST ASIAN INITIATIVES IN HUMAN RIGHTS INSTITUTION-BUILDING AND STANDARD-SETTING

Published online by Cambridge University Press:  18 November 2013

Nicholas Doyle
Affiliation:
LLM Barrister, nickdoyle77@googlemail.com.
Corresponding

Abstract

On 18 November 2012 the ‘Association of Southeast Asian Nations’ (ASEAN) adopted the ASEAN Human Rights Declaration (AHRD). ASEAN has existed since 1967 and as a result allows Southeast Asia to be identified as a ‘region’ comparable with other regions such as Africa, the Americas and Europe which have been seen as such in human rights terms for over 40 years. However, until recently Southeast Asia has not been involved in a process of regional human rights institutionalization which in other regions has been an important means of implementing international human rights treaty commitments adopted by their member-States in global forums. Furthermore, the ten States of ASEAN as a group are parties to relatively few of the principal international human rights standard-setting and monitoring regimes. Hence vesting ASEAN with a human rights mandate would seem to present an opportunity to enhance the range of human rights commitments to which ASEAN States are subject. However, after reviewing the ‘ASEAN human rights mechanism’ it is concluded that much recent ASEAN activity amounts either to political rhetoric or has potential to fragment the human rights norms recognized by those ASEAN States which are committed to international human rights treaties. For the ASEAN States which are relatively uncommitted to international human rights treaty regimes, participating in the ASEAN mechanism may reduce pressure to recognize international norms.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 The ‘Association of Southeast Asian Nations’ includes Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam.

4 See, inter alia, ‘Regional Arrangements for the Promotion and Protection of Human Rights in the Asia and Pacific Region’, UNGA Res A/RES/43/140 (1988) which recognized that ‘regional arrangements make a major contribution to the promotion and protection of human rights’.

5 Shelton, D, ‘The Promise of Regional Human Rights Systems’ in Weston, BH and Marks, SP (eds), The Future of International Human Rights (Transnational 1999) 353Google Scholar; emphasis added.

6 Hashimoto, H, The Prospects for a Regional Human Rights Mechanism in East Asia (Routledge 2004) 1Google Scholar; emphasis added.

7 In the sense that ASEAN is the institutional embodiment of the Southeast Asian politico-legal self-imaging—see ASEAN Charter para 1 Preamble and art 4 which limit ASEAN membership to the Southeast Asian States of the ASEAN-ten.

8 Annex I herein shows the ASEAN States’ pattern of signature, ratification and accession to eight principal international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; the International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force January 1976) 993 UNTS 3; the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13; the Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; the International Covenant on the Elimination of all forms of Racial Discrimination (CERD) (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195; the Convention on the Prevention and Punishment of the Crime of Genocide (GC) (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (adopted 10 December 1989, entered into force 26 June 1987) 1465 UNTS 85; the International Convention on the Protection of the Rights of All Migrant Workers and their Families (CMW) (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3.

9 <http://www.un.org/en/members/index.shtml> accessed 8 August 2012.

14 The Treaty of Amity and Cooperation in Southeast Asia (TAC) (signed on 24 February 1976, entered into force 21 June 1976) 27 ILM (1988) 610 sets out the core principles and purposes of ASEAN and describes itself as a ‘treaty’, expressed in imperative language. The founding of ASEAN on 8 August 1967 was achieved by the ‘Bangkok Declaration’ 6 ILM (1967) 1233 (hereinafter ‘the ASEAN Declaration’) para 2.1 of which described the purpose of ASEAN as concerned with ‘economic growth, social progress and cultural development’.

15 Tan describes art 2 of the TAC as the crystallization of the ‘regional ideology’ of the ‘ASEAN Way’; the normative content on this account being the art 2 ‘fundamental principles:

  1. a

    a Mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations;

  2. b

    b The right of every State to lead its national existence free from external interference, subversion or coercion;

  3. c

    c non-interference in the internal affairs of one another;

  4. d

    d settlement of differences and disputes by peaceful means;

  5. e

    e renunciation of the threat or use of force;

  6. f

    f effective cooperation among themselves'.

See Tan, HL, The ASEAN Intergovernmental Commission on Human Rights (Cambridge 2011) 145Google Scholar.

16 The period of military intervention and diplomatic confrontation between Indonesia and Malaysia precipitated by President Sukarno's opposition to the formation of Malaysia (1963–66).

17 Tan (n 15) 144–5.

n 15

18 Tensions which competing Sino-ASEAN and intra-ASEAN territorial claims in the South China Sea continue to express. ‘Divided We Stagger: ASEAN in Crisis’ Economist (18 August 2012).

19 Acharya, A, Constructing a Security Community in Southeast Asia (Routledge 2009) 72Google Scholar. However, it would be wrong to suggest that ASEAN States never engage in open criticism of each other outside ASEAN. The Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) Merits [1962] ICJ Rep 4 was the first intra-Asian case referred to the International Court of Justice (ICJ). More recently Singapore and Malaysia referred one of a number of territorial disputes to the ICJ: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Judgment, ICJ Rep 2008 12. The Philippines and Cambodia have accepted ICJ compulsory jurisdiction under art 36(2) Statute.

20 ‘Declaration of ASEAN Concorde II’ (Bali Concorde II) (signed 7 October 2003) 43 ILM 18 (2004).

21 ASEAN Political-Security Community Blueprint, Thailand, 1 March 2009 (2008) 12 SYBIL 281. <http://www.aseansec.org/5187-18.pdf> accessed 1 June 2012.

22 Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (20 July 2009) 48 ILM 1165 (2009).

23 Chesterman considered ASEAN to be an institution, in the sense of being a constraining and facilitating feature of its member-States' relations, but in the pre-Charter era more in the manner of a ‘standing diplomatic conference’ (at 210). Chesterman considered ASEAN as ‘perhaps the most important regional organization in Asia’ but considered its objective legal personality at time of writing to be questionable (at 200). Chesterman, S, ‘Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person’ (2008) 12 SYBIL 199211Google Scholar.

24 ASEAN Charter (signed on 20 November 2007, entered into force 15 December 2008) <http://www.aseansec.org/publications/ASEAN-Charter.pdf> accessed 1 June 2012.

25 Art 6.8 ToR AICHR.

26 Art 1.1 ToR AICHR.

27 ‘Final Declaration of the regional meeting for Asia of the World Conference on Human Rights (The Bangkok Declaration)’ (Bangkok 29 March–2 April 1993) (2 April 1993) UN Doc A/CONF.157/ASRM/8. The Bangkok Declaration crystallized the seemingly ambiguous position of Asian States: an affirmation of ‘universality’ but a laying of emphasis on ‘regional peculiarities’ and, like the ToR AICHR at art 2.2, emphasizing in its preamble the indivisibility, interdependence and interrelatedness of human rights. The Bangkok Declaration reflected the high water mark of ASEAN States’ promotion of the regional and rejection of the global. The ASEAN Inter-Parliamentary Organization ‘Kuala Lumpur Declaration on Human Rights’ (October 1993) 3 Asian YBIL 496 appeared to further reflect this approach.

28 eg art 2.5 ToR AICHR.

29 ToR AICHR art 1.5.

30 Universal Declaration on Human Rights UNGA Res A/217(III)[A-E].

31 Vienna Declaration and Programme of Action (Vienna 14 June–25 June 1993) A/CONF/157/23.

32 ToR AICHR art 1.6.

33 Both art 2(2)(e) Charter and art 2.1(b) AICHR ToR provide ‘non-interference in the internal affairs of ASEAN Member-States’ as, respectively, a principle ‘States shall act in accordance with’ and a principle the AICHR ‘shall be guided by’ in respecting the principles of the Charter. In April 2010 the AICHR held its first meeting to deal specifically with the drafting of the AHRD and to set a timetable for its completion in 2012. However, Cabalerro-Anthony reports ASEAN's ‘Seniors’ rejected a more ambitious approach envisioned for the ASEAN human rights mechanism by the Eminent Persons Group (EPG) tasked with drafting proposals for the ASEAN human rights mechanism. The EPG's original proposal included compliance mechanisms, to include a commission and a court. Caballero-Anthony, M, ‘The ASEAN Charter: An Opportunity Missed or One That Cannot Be Missed?’ (2008) Southeast Asian Affairs 71, 75Google Scholar.

35 See A/HRC/RES/19/21, Resolution of the Human Rights Council: ‘Situation of Human Rights in Myanmar’, 26 April 2012 and A/HRC/RES/18/25, Resolution of the Human Rights Council: ‘Advisory Services and Technical Assistance for Cambodia’ 17 October 2011, available at <http://www.ohchr.org/EN/HRBodies/SP/Pages/Countries.aspx> accessed December 2012.

36 UNGA Res 60/251 (3 April 2006) A/RES/60/251 at para 5(e).

37 See the UPRs of Brunei Darussalam at para 27 A/HRC/WG.6/6/BRN/1, Cambodia at para 23 A/HRC/WG.6/6/KHM/1, Indonesia at para 38 A/HRC/WG.6/13/IDN/1, Laos at para 21 A/HRC/WG.6/8/LAO/1, Malaysia at para 26 A/HRC/WG.6/4/MYS/1/Rev.1, Myanmar at para 117 A/HRC/WG.6/10/MMR/1, Philippines at paras 16, 17 and 19 A/HRC/WG.6/13/PHL/1 , Singapore at para 31 A/HRC/WG.6/11/SGP/1, Thailand at para 16 A/HRC/WG.6/12/THA/1, and of Viet Nam at para 16 A/HRC/WG.6/5/VNM/1.

38 Indonesian voluntary pledge <http://www.upr-info.org/IMG/pdf/hrc_pledge_indonesia_2011.pdf> accessed 12 August 2012 at 4.

39 Thailand's reservation to art 7 CRC having been withdrawn in 2010 and to art 16 CEDAW in July 2012.

42 Linton, S, ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed ASEAN Commission on Women and Children’ (2008) 30 HRQ 436, 468CrossRefGoogle Scholar. While Finland, Denmark and Sweden severed the reservation, no State opposed the entry into force of CEDAW as between itself and Singapore and Singapore has cooperated with the CEDAW Committee reporting process as a State-party.

43 CEDAW Concluding Observations CEDAW/C/SGP/CO/4 at para 13. As a general comment on reservations to art 2 CEDAW, the CEDAW Committee in 2010 urged that all States-parties maintaining such reservations should have ‘the goal of withdrawing them as soon as possible’, General Recommendation no 28, para 41, CEDAW/C/GC/28.

45 <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en#49> accessed 24 Aug 2012. Linton notes that Finland, Belgium and Norway severed the reservations, but again no State expressed the view openly that Singapore was not a State-party to the CRC. Linton (n 42) 476.

n 42

46 CRC Committee Concluding Observations CRC/C/SGP/CO/2-3 at para 6.

48 Linton (n 42) 467.

n 42

49 CEDAW Committee Concluding Observations CEDAW/C/MYS/CO2 at para 10.

52 CRC/C/MYS/CO/1 para 12.

53 Linton (n 42) 480.

n 42

54 CRC/C/MYS/1 paras 161 and 172.

55 Art 11(4) Constitution of Malaysia available at <http://confinder.richmond.edu/admin/docs/malaysia.pdf> accessed 25 Aug 2012. Under art 3(1) Constitution of Malaysia, Islam is enshrined as the religion of the Federation.

56 Linton (n 42) 480.

n 42

57 V Muntarbhorn, ‘Roadmap for an ASEAN Human Rights Mechanism’, 28 May–29 May 2003, quoted in Tan (n 15) 169.

n 15

58 Art 6.8 ToR AICHR.

59 CRC/C/SGP/CO/2-3 para 73.

60 Linton (n 42) 493.

n 42

61 Linton also suggested that the ACWC might also promote the well-being of women and children in particular ASEAN region-specific contexts: cooperation against trafficking of women and children, sex tourism/pornography/prostitution and adoption at (n 42) 493.

n 42

62 Linton (n 42) 492.

n 42

63 S Pitsuwan, ASEAN Bulletin 2010, ‘Inaugurated: ASEAN Commission for the Promotion and Protection of the Rights of Women and Children’, Ha Noi, 7 April 2010 <http://www.asean.org/news/item/asean-bulletin-april-2010#Article-2> accessed 24 Aug 2012.

65 ACWC ToR para 3.2.

66 ACWC ToR 3.1.

67 This assertion is discussed further in section VII.

68 A recurring theme of the justifications offered by Malaysia and Singapore for their reservations to the CEDAW and CRC was the accommodation of minority interests, particularly those of Malay Muslims in Singapore and Islamist majorities in certain Malaysian states, and the supposedly conflicting doctrines of Sharia' law and international human rights. Lee, HP, ‘Human Rights in Malaysia’ in Peerenboom, R, Petersen, C and Chen, A (eds), Human Rights in Asia (Routledge 2008) 193–7Google Scholar.

70 ibid paras 4 and 5 Preamble, Statement of Adoption.

ibid

71 ibid para 3.

ibid

72 ibid para 2; emphasis added. The UN Charter, the UDHR and the Vienna Declaration and Programme of Action are the only other sources of commitment. Hence, like the AHRD itself, no direct reference is made to the international human rights treaties, only to ‘other international human rights instruments of which ASEAN Member States are parties’.

ibid

73 ibid para 1 Preamble, Statement of Adoption.

ibid

75 ibid Preamble para 2.

ibid

76 Kuala Lumpur Declaration on Human Rights, adopted by the fourteenth General Assembly of the ASEAN Inter-Parliamentary Organization, October 1993, (1993) 3 Asian YBIL, 496Google Scholar.

77 The Kuala Lumpur Declaration on Human Rights (KLDHR) was drafted by the ASEAN Inter-Parliamentary Assembly (AIPA), a cooperative assembly of parliamentary representatives from ASEAN member-States. The KLDHR represented an early initiative to include human rights in the agenda of ASEAN. On Acharya's account, the AIPA considered that in light of the ‘ASEAN Way’ and ‘Asian values’ justifications for ASEAN leaders’ rejection of the human rights standards crystallizing in international law as a result of UN and treaty practice, an autochthonous instrument enumerating ‘ASEAN human rights’ was necessary. Acharya, A, ‘How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian RegionalismInternational Organization 58(2) (2004) 239CrossRefGoogle Scholar. The KLDHR is the only comprehensive enumeration of human rights emanating from ASEAN prior to the AHRD. The KLDHR is a non-binding declaration using either hortatory language or obligatory language in respect of obligations of conduct. Only three substantive ‘Fundamental Human Rights’ are described in the KLDHR.

78 Para 1 KLDHR Preamble.

79 See comments by Thio, L, ‘Implementing Human Rights in ASEAN Countries: “Promises to Keep and Miles to Go before I Sleep”’ (1999) 2 YaleHumRts&DevLJ 1Google Scholar, 35, 66.

80 Okere, BO, ‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems’ (1984) 6 HRQ 141CrossRefGoogle Scholar, 146.

81 The Bangkok Declaration, recalling as it did the UNGA Declaration on the Right to Development (UNGA 41/128 (4 December 1986), expressed Asian/developing States' concerns that economic, social and cultural rights were assuming a second place to civil and political rights in the international discourse on human rights and laid much emphasis on the ‘indivisibility’ of these schools of rights—see, inter alia, Bangkok Declaration para 10: ‘Reaffirm the interdependence and indivisibility of economic, social, cultural, civil and political rights, and the need to give equal emphasis to all categories of human rights’. This reflected a deeper theoretical debate at the time on the relationship between the human rights movement and economic development which emerged as a justification for some Asian leaders’ rejection of human rights, parallel to the ‘Asian values’-based justifications. For the advocates of ‘indivisibility’, to vouchsafe certain human rights is to fetter economic development, human rights reflecting a form of economic ‘drag’ on the streamlined hull of the developing State. See for example Yew, Lee Kuan, From Third World to First: Singapore and the Asian Economic Boom (Harper Collins 2000)Google Scholar and also Zakaria, F, ‘Culture is Destiny: A Conversation with Lee Kuan Yew’ (1994) 73 Foreign Affairs 109CrossRefGoogle Scholar. Sen is critical of the ‘Lee thesis’ model as tending to downplay the role of ‘helpful policies’ (openness to competition, high standards of education and policies which attract foreign investment) by which States like South Korea and Singapore achieved rapid economic growth. Sen finds no evidence to suggest that the realization of civil and political rights is inimical to these policies; rather civil and political rights are not just a means to development but also an end. The freedom to participate in the political discourse of the nation by exercising civil and political rights and to hold government to account are not merely negotiable elements of the means by which some developed state might be achieved. Sen, A, Development as Freedom (Anchor Books 2000)Google Scholar, chs 2 and 10, esp 148.

82 On the ‘Asian values’ discourse in the 1990s, of which the Bangkok Declaration and the KLDHR were an expression, see Jung, KD, ‘A Response to Lee Kuan Yew: Is Culture Destiny? The Myth of Asia's Anti-Democratic Values’ (1994) 73 Foreign Affairs 189CrossRefGoogle Scholar and Sen, A, ‘Human Rights and Asian Values: What Lee Kuan Yew and Le Peng Don't Understand about Asia’ (14 July 1997) 217(2/3) The New Republic 33(8)Google Scholar.

83 The African Charter on Human and Peoples' Rights (The Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM (1982) 59.

84 The American Convention on Human Rights (Pact of San José) (signed on 22 November 1969, entered into force 18 July 1978) 9 ILM (1970) 99.

85 The second substantive Part of the AHRD consists of 16 articles and is entitled ‘Civil and Political Rights’. Art 10, the first article of the Part, affirms ‘all the civil and political rights of the [Universal Declaration on Human Rights]’. Art 10 implies that the subsequent 15 articles of the Part are specific affirmations of the UDHR. This conclusion is fortified by the observation that art 10 makes no reference to any other source of human rights law. It is noteworthy that despite the words of para 3 Preamble and the title of the second Part, no reference is made to the ICCPR and hence the opportunity to adopt the ICCPR as a basic standard relevant to civil and political rights in SEA is eschewed. Art 26—the first article of the third substantive Part of the AHRD consisting of nine articles and entitled ‘Economic, Social and Cultural Rights’—is in the same terms, mutatis mutandis, as art 10. Hence, the opportunity to locate the AHRD in the context of the ICESCR is eschewed and instead the Part is said to affirm the economic, social and cultural rights of the UDHR.

86 This attempt to classify and compare rights is not a precise science. The interpretation of the scope of any given right is highly elastic; where complex concepts such as human rights are reduced to writing some ambiguity may persist and the reader may be free to enlist interpretive concepts from elsewhere in the text. Rights may also be subject to provisions in the national law of States-parties. Given the declaratory nature of the AHRD the emphasis of this comparison exercise has been placed on the actual rights each text purports to recognize, rather than on any commitments expressed to realize those rights. Rights of an economic, social and cultural class are particularly resistant to comparison since while a ‘right’ of extensive scope may be described by one text, that text may omit to describe the means by which such a right is to be realized, whereas a corresponding ‘right’ in another text may be drafted more narrowly but with a fulsome account of the practical steps which a State-party should take in order to realize it.

87 Whereas the AHRD's predecessor, the KLDHR, included no positive obligation to protect life (only recognizing an abstract right to life at its art 7).

88 Second Optional Protocol to the International Covenant on Civil and Political Rights (adopted 15 December 1989, entered into force 11 July 1991) 1642 UNTS 414.

89 ‘Information’ but not ‘ideas’—an important omission; compare art 19(2) ICCPR.

90 Although unlike art 2(1) ICESCR, art 33 AHRD is not expressed as an undertaking.

91 These last three adjectives may have been inspired by the text of art 7 ICESCR: ‘decent’ is to be found in art 7(a)(ii) ICESCR where the phrase ‘a decent living’ forms part of the content of the right to ‘just and favourable conditions of work’ (art 7 chapeau), along with fair wages and equal pay for equal work (art 7(a)(i) ICESCR).

92 Article 10(3) ICESCR provides that ‘children … should be protected from economic and social exploitation’; (emphasis added).

93 Article 8 ICCPR describes, inter alia, a right not to be held in slavery but does not address trafficking.

94 However, no mention is made of a right to compensation for non-arbitrary deprivation nor does the article address informal ownership. Indeed, by the phrase ‘lawfully acquired’ squatter settlements and informal occupation according to minority customary rights or laws may be excluded.

95 Art 24(3) ICCPR describes the right of children to acquire a nationality. Malaysia retains reservations to art 9(2) CEDAW (equal rights for men and women with respect to the nationality of their children) and art 7 CRC (the right of children to a nationality from birth); art 18 AHRD excises this international standard from the regional regime and so avoids an issue of controversy.

96 While art 28 is a revealing rhetorical statement of the priorities of some or all ASEAN States it is surely fanciful to describe them as having the immediacy of ‘rights’ in this way. In respect of ASEAN's poorer States it is submitted that heavy emphasis must be placed on art 33 AHRD in the interpretation of art 28. On reading the AHRD as a whole, art 28 appears all the more strange since it would seem to foreshadow much of the content of the ‘right to development’ asserted in Part IV (arts 35–37), yet no acknowledgement of any relationship is to be found in the text.

97 In expressing that ‘no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment’, art 14 AHRD achieves textual parity with the first sentence of art 7 ICCPR and reflects a substantial advance from the position of the KLDHR which made no mention of such a norm. It will be interesting to see whether any tension with the practice of corporal punishment in some ASEAN States arises as a result of art 14 since no qualifier as to ‘arbitrariness’ or ‘by law’ is included in art 14.

98 Although a more limited right to trade union membership is provided under art 27(2) AHRD and art 32 recognizes a right to take part in, inter alia, ‘cultural life’ in association with others.

99 Declaration on the Right to Development, UNGA 41/128 (4 December 1986).

100 Contrast Pt IV AHRD with art 4 KLDHR: ‘Each Member State has the right to development based on its own objectives’; emphasis added.

101 Available at <www.un.org/millenniumgoals/>.

102 United Nations Millennium Declaration, adopted 8 Sept 2000, UNGA Res 55/2 UN GAOR 55th Sess no 49 UN Doc A/RES/55/2 (2000).

103 Murray, R, The African Commission on Human and Peoples' Rights and International Law (Hart Publishing 2000) 10Google Scholar.

104 Okere (n 80) 141.

n 80

105 ibid 146.

ibid

106 Reflected in arts 28 and 29 ACHPR.

107 Murray, R, ‘International Human Rights: Neglect of Perspectives from African Institutions’ (2006) 55 ICLQ 193CrossRefGoogle Scholar, 193.

108 Muntarbhorn, V, ‘Regional Integration and Human Rights: European and Asian Reflections’ in Petchsiri, A, de Sales Marques, JL and Roth, W (eds), Promoting Human Rights in Asia and Europe: The Role of Regional Integration (Nomos 2009) 20Google Scholar.

109 Hathaway, OA, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 YaleLJ 1935Google Scholar.

110 ibid 1999.

ibid

111 ibid.

ibid

112 ibid 2002.

ibid

113 ibid 2020.

ibid

114 ibid 2006.

ibid

115 ibid 2020.

ibid

116 ibid; emphasis added.

ibid

117 As to the kind of ‘pressure’ exerted from outside the State and the region, Tay and Yen claimed a role for ‘conditionalities’ attached to foreign aid packages. See Tay, S and Chien Yen, G, ‘Human Rights Revisited in the Asian Crisis3 (1999) SJICL 26, 45Google Scholar. Also Tan (n 15) 68–9.

n 15

118 Goodman, R and Jinks, D, ‘Measuring the Effects of Human Rights Treaties’ (2003) 14(1) EJIL 171, 175CrossRefGoogle Scholar.

119 Hathaway's response attempted to address this concern: Hathaway, O, ‘Testing Conventional Wisdom’ (2003) 14(1) EJIL 185, 190CrossRefGoogle Scholar.

120 Goodman and Jinks (n 118) 173.

n 118

121 ibid 2017.

ibid

122 Thio (n 79) 43.

n 79

123 Article 47(4) ASEAN Charter.

124 ‘Fifth from the right is the party-pooper’, Economist (22 November 2007) <http://www.economist.com/node/10178014> accessed January 2013.

125 In a number of ASEAN States the state exercises considerable de facto or de jure control over media organizations and is able to internally promote foreign policy ‘advances’.

126 Thio (n 79) 28; Thio's footnotes omitted.

n 79

127 Albeit a structure drawing on a residue of ‘Asian values’ rhetoric.

128 Complaints were made about the secretive manner in which the Working Group drafted the AHRD with little open NGO or civil society consultation and no draft being made available for public comment until after its adoption. See <http://www.hrw.org/news/2012/07/08/asean-ensure-declaration-meets-rights-standards>.

129 See Tan (n 15) 150 on Indonesia's human rights assistance foreign policy.

n 15

130 Shelton (n 5); Hashimoto (n 6).

n 5
n 6

2 The Second Optional Protocol to the ICCPR is not shown here; only Philippines has ratified. The acceptance of competence of the ICCPR Committee under art 41 is not dealt with here either since, as with other inter-State complaint mechanisms of the various treaty bodies, the system has never been used by any State. However, Philippines is the only ASEAN State to have notified of its recognition of the Committee's competence under art 41 ICCPR.

3 The Third Optional Protocol to the CRC on a communications procedure (19 Dec 2011) is not yet in force and has been signed by 25 States and ratified by none. No ASEAN States are among the signatories.

4 No ASEAN States have accepted the competence of the CERD Committee to receive individual complaints under art 14.

5 United Nations Special Procedures: Facts and Figures 2011 at 13 <http://www.ohchr.org/Documents/HRBodies/SP/Facts_Figures2011.pdf> accessed 31 July 2012. As of 31 December 2011, 90 States have extended such an invitation. Thailand extended its invitation in 2011.

6 ICCPR art 24(3) recognizes a right of the child to acquire a nationality. Art 18 AHRD recognizes the right of ‘every person’ to a nationality, albeit ‘as prescribed by law’.

7 Article 25 AHRD resists unforced classification. Art 25(1) AHRD expresses a right of citizens ‘to participate in the government of his or her country’ either directly or indirectly but with the caveat ‘in accordance with national law’ and with no reference to non-discrimination in the application of the right—a norm which art 25 ICCPR establishes in its chapeau para. Art 25 AHRD does not express a right to be elected (as with art 25(b) ICCPR). Nevertheless, art 25(2) AHRD includes the remaining elements of art 25(b) ICCPR on enfranchisement and voting conditions, but again ‘in accordance with national law’.

8 The right recognized by art 15 AHRD does not recognize an individual's right to choose his residence (contrast art 12(1) ICCPR).

9 Article 23 AHRD expresses a right in similar terms to art 19 ICCPR but omits ‘ideas’, recognizing a right to ‘seek, receive and impart information’.

10 By art 30(3) AHRD ‘motherhood’ is entitled to special assistance and equal standards of social protection shall be enjoyed by children born out of ‘wedlock’.

11 The ‘right’ expressed in art 29(1) AHRD is of similar scope to its ICESCR equivalent (art 12) but implementing provisions are absent.

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THE ASEAN HUMAN RIGHTS DECLARATION AND THE IMPLICATIONS OF RECENT SOUTHEAST ASIAN INITIATIVES IN HUMAN RIGHTS INSTITUTION-BUILDING AND STANDARD-SETTING
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