Kevin H. R. Villanueva, “Asean ‘Magna Carta’ Universalizes Human Rights”

On November 18, 2012, the ASEAN Human Rights Declaration was signed by the 10 ASEAN heads of state. This Asian “Magna Carta” is a slender document of 40 articles that begins with a preamble followed by six sections on general principles, civil and political rights, economic, social and cultural rights, development, peace and international cooperation in the promotion and protection of human rights.

Nothing like it has ever been adopted by any country or by any other bloc with legal personality within the region. What does this landmark declaration symbolize? “The Asian values debate” and the spectre of cultural relativism, which arrived with rage in the 1990s, have now finally been laid to rest.

Does this also mean, however, the demise of “Asian” values? What is certain is that the rights and principles that have been enshrined
in the Declaration reveal the political will of ASEAN to level the playing field in international politics.

Between January and September 2012, the 10 representatives of the ASEAN Intergovernmental Commission on Human Rights braved 10 tough meetings in seven different cities around Southeast Asia and gave the human rights project its autochthonous shape: Not least, are novel and delicate notions on the right to peace and development and a clarion call for sovereign respect and equality in international cooperation.

One iconic feature of this regional Declaration, however, and what I believe is its greatest contribution, is ASEAN’s imprimatur on the
universality of the international human rights regime. The longest and thorniest debates during the negotiations revolved around the word “regional particularities”.

It was a joust between adopting the same and exact paragraph in the Vienna Declaration and Program of Action in 1993, from which the phrase originates, drafting a modified version that would alter the paragraph except the word, or removing the word “particularities” in an absolute and final way.

The result was a new article: “All human rights are universal, indivisible, interdependent and interrelated. 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 realization 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 (Article 7). “Particularities” was purged, putting on record the ASEAN consensus for an effective end to pretexts for selectivity, including partiality and forms of discrimination or double standards not only among member state, but also between them and detractors in the West who would use rights talk in the service of self-interest.

It was agreed that Article 7 must never be interpreted as diminishing the universality of human rights or in a manner that would undermine the principles protected in the Declaration. The provision also maintains the respect for the rich socio-cultural diversities of the member states and their national traditions. It serves to remind the international community to be sensitive to the specific needs and desires of national constituencies — but to be critical and steadfast against local practices that violate human dignity.

It is unfortunate that in the past, understandings of “backgrounds” tended to emphasize national over regional contexts. Notions of “particularities” have thus to this day, inadvertently, been on the basis of national differences rather than on shared regional practices. The Phnom Penh statement by the heads of state on the adoption of the Declaration explicitly states that the implementation of human rights must be “in accordance to the Charter of the United Nations, the Universal Declaration of Human Rights, the Vienna Declaration and Program of Action, and other international human rights instruments to which ASEAN Member States are parties, as well as to
relevant ASEAN declarations and instruments pertaining to human rights” lest the Declaration lends itself to the tangential interpretations of cultural relativists or would be authoritarians.

These deliberations manifest the exceptional ideal of ASEAN regional solidarity in full action. The organization has been criticized from within and outside for the lack of an effective voting system.

But the spirit of compromise and consensus played out consistently — and quite painfully — throughout the entire drafting process and especially in the negotiation of Article 7. Notwithstanding hard and intractable positions, the representatives invoked the ground rule to drop any issue when one or more states were in absolute disagreement. It was the double-edged sword. Between the benefits of avoiding neighbourly conflict or those of an agreement, the preeminent principle for political expediency held sway: One for all — and all for one.

Furthermore, in consonance with ASEAN informality, the representatives also convened a series of what they call “retreats” in the course of the negotiations. ASEAN officials, ministers and bureaucrats alike use this unique regional custom when they agree that protocol must give way to straight and intimate talk between peers. The retreat environment is relaxed, familial and unceremonious.

They were exercised with care and restraint by the framers, who were ultimately responsible for every word in the Declaration, in order to negotiate away from the public eye, combining first the requirements of confidentiality (not secrecy), and last but not insignificantly, the ubiquitous value of saving face in Southeast Asian ethos.

Such ideals and values are unique to ASEAN, but they lean undeniably on the principles of the modern state system in large measure. Indeed, we can choose to be cynical and look only at the staying power of the state and how often it falters in providing for the welfare of the individual rights and freedoms of women and men.

But we can also choose to look differently at this Declaration: One small step for ASEAN but one giant leap for humanity. The reverse is no less true: One small step for humanity, one giant leap for ASEAN. It is no small wonder that we now all stand to benefit either way. — The Jakarta Post (http://w w w s/2013/01/08/asean-magna-carta-universalizes-human-rights.html)

(The writer was member of the Philippine delegation under Ambassador Rosario Manalo to the ASEAN Intergovernmental Commission on Human Rights for the drafting of the ASEAN Human Rights Declaration. This article was originally published at The Malaysian Insider on January 9, 2012).

Human Rights Declaration of Southeast Asian Nations

WE, the Heads of State/Government of the Member States of the Association of Southeast Asian Nations (hereinafter referred to as “ASEAN”), namely 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 Viet Nam, on the occasion of the 21st ASEAN Summit in Phnom Penh, Cambodia.

REAFFIRMING our 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 principles of democracy, the rule of law and good governance;

REAFFIRMING FURTHER our 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;

REAFFIRMING ALSO the importance of ASEAN’s efforts in promoting human rights, including the Declaration of the Advancement of Women in the ASEAN Region and the Declaration on the Elimination of Violence against Women in the ASEAN Region;

CONVINCED that this Declaration will help establish a framework for human rights cooperation in the region and contribute to the ASEAN community building process;



1. All 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.

2. Every person is entitled to the rights and freedoms set forth herein, 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.

3. Every person has the right of recognition everywhere as a person before the law. Every person is equal before the law. Every person is entitled without discrimination to equal protection of the law.

4. The rights of women, children, the elderly, persons with disabilities, migrant workers, and vulnerable and marginalised groups are an inalienable, integral and indivisible part of human rights and fundamental freedoms.

5. 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.

6. 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 society where one lives. It is ultimately the primary responsibility of all ASEAN Member States to promote and protect all human rights and fundamental freedoms.

7. All human rights are universal, indivisible, interdependent and interrelated. 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.

8. The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms 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 securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.

9. 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 standards and politicisation, should always be upheld. The process of such realisation shall take into account peoples’ participation, inclusivity and the need for accountability.

10. ASEAN Member States affirm all the civil and political rights in the Universal Declaration of Human Rights. Specifically, ASEAN Member States affirm the following rights and fundamental freedoms:

11. Every person has an inherent right to life which shall be protected by law. No person shall be deprived of life save in accordance with law.

12. Every person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.

13. No person shall be held in servitude or slavery in any of its forms, or be subject to human smuggling or trafficking in persons, including for the purpose of trafficking in human organs.

14. No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

15. Every person has the right to freedom of movement and residence within the borders of each State. Every person has the right to leave any country including his or her own, and to return to his or her country.

16. Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.

17. Every person has the right to own, use, dispose of and give that person’s lawfully acquired possessions alone or in association with others. No person shall be arbitrarily deprived of such property.

18. Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.

19. The family as the natural and fundamental unit of society is entitled to protection by society and each ASEAN Member State. Men and women of full age have the right to marry on the basis of their free and full consent, to found a family and to dissolve a marriage, as prescribed by law.

20. (1) Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal, at which the accused is guaranteed the right to defence.

(2) No person shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.

(3) No person shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each ASEAN Member State.

21. Every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence including personal data, or to attacks upon that person’s honour and reputation. Every person has the right to the protection of the law against such interference or attacks.

22. Every person has the right to freedom of thought, conscience and religion. All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated.

23. Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.

24. Every person has the right to freedom of peaceful assembly.

25. (1) Every person who is a citizen of his or her country has the right to participate in the government of his or her country, either directly or indirectly through democratically elected representatives, in accordance with national law.

(2) Every citizen has the right to vote in periodic and genuine elections, which should be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law.


26. ASEAN Member States affirm all the economic, social and cultural rights in the Universal Declaration of Human Rights. Specifically, ASEAN Member States affirm the following:

27. (1) Every person has the right to work, to the free choice of employment, to enjoy just, decent and favourable conditions of work and to have access to assistance schemes for the unemployed.

(2) Every person 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, in accordance with national laws and regulations.

(3) 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.

28. Every person has the right to an adequate standard of living for himself or herself and his or her family including:
a. The right to adequate and affordable food, freedom from hunger and access to safe and nutritious food;
b. The right to clothing;
c. The right to adequate and affordable housing;
d. The right to medical care and necessary social services;
e. The right to safe drinking water and sanitation;
f. The right to a safe, clean and sustainable environment.

29. (1) Every person has the right to the enjoyment of the highest attainable standard of physical, mental and reproductive health, to basic and affordable health-care services, and to have access to medical facilities.

(2) The ASEAN Member States shall create a positive environment in overcoming stigma, silence, denial and discrimination in the prevention, treatment, care and support of people suffering from communicable diseases, including HIV/AIDS.

30. (1) Every person shall have the right to social security, including social insurance where available, which assists him or her to secure the means for a dignified and decent existence.

(2) Special protection should be accorded to mothers during a reasonable period as determined by national laws and regulations before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate social security benefits.

(3) Motherhood and childhood are entitled to special care and assistance. Every child, whether born in or out of wedlock, shall enjoy the same social protection.

31. (1) Every person has the right to education.

(2) Primary education shall be compulsory and made available free to all. Secondary education in its different forms shall be available and accessible to all through every appropriate means. Technical and vocational education shall be made generally available. Higher education shall be equally accessible to all on the basis of merit.

(3) Education shall be directed to the full development of the human personality and the sense of his or her dignity. Education shall strengthen the respect for human rights and fundamental freedoms in ASEAN Member States. Furthermore, education shall enable all persons to participate effectively in their respective societies, promote understanding, tolerance and friendship among all nations, racial and religious groups, and enhance the activities of ASEAN for the maintenance of peace.

32. Every person has the right, individually or in association with others, to freely take part in cultural life, to enjoy the arts and the benefits of scientific progress and its applications and to benefit from the protection of the moral and material interests resulting from any scientific, literary or appropriate artistic production of which one is the author.

33. ASEAN Member States should take steps, individually and through regional and international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of economic, social and cultural rights recognised in this Declaration.

34. ASEAN Member States may determine the extent to which they would guarantee the economic and social rights found in this Declaration to non-nationals, with due regard to human rights and the organisation and resources of their respective national economies.


35. The right to development is an inalienable human right by virtue of which every human person and the peoples of ASEAN are entitled to participate in, contribute to, enjoy and benefit equitably and sustainably from economic, social, cultural and political development. The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. While development facilitates and is necessary for the enjoyment of all human rights, the lack of development may not be invoked to justify the violations of internationally recognised human rights.

36. ASEAN Member States should adopt meaningful people-oriented and gender responsive development programmes aimed at poverty alleviation, the creation of conditions including the protection and sustainability of the environment for the peoples of ASEAN to enjoy all human rights recognised in this Declaration on an equitable basis, and the progressive narrowing of the development gap within ASEAN.

37. ASEAN Member States recognise that the implementation of the right to development requires effective development policies at the national level as well as equitable economic relations, international cooperation and a favourable international economic environment. ASEAN Member States should mainstream the multidimensional aspects of the right to development into the relevant areas of ASEAN community building and beyond, and shall work with the international community to promote equitable and sustainable development, fair trade practices and effective international cooperation.


38. Every person and the peoples of ASEAN have the right to enjoy peace within an ASEAN framework of security and stability, neutrality and freedom, such that the rights set forth in this Declaration can be fully realised. To this end, ASEAN Member States should continue to enhance friendship and cooperation in the furtherance of peace, harmony and stability in the region.
39. ASEAN Member States share a common interest in and commitment to the promotion and protection of human rights and fundamental freedoms which shall be achieved through, inter alia, cooperation with one another as well as with relevant national, regional and international institutions/organisations, in accordance with the ASEAN Charter.

40. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to perform any act aimed at undermining the purposes and principles of ASEAN, or at the destruction of any of the rights and fundamental freedoms set forth in this Declaration and international human rights instruments to which ASEAN Member States are parties.

Adopted by the Heads of State/Government of ASEAN Member States at Phnom Penh, Cambodia, this Eighteenth Day of November in the Year Two Thousand and Twelve, in one single original copy in the English Language.



International Symposium

International Symposium: “Human Rights and Democracy in a Globalized World”. November, 12-14, 2012.

Symposium organized by the Centre for Philosophical Research (Argentina) and Torcuato Di Tella University (Argentina) with the support of the Alexander von Humboldt Foundation.

International keynote speakers:

– Hauke Brunkhorst (University of Flensburg, Germany)
– Regina Kreide (Giessen University, Germany)
– Cristina Lafont (Northwestern University, USA)
– Saladin Meckled-García (University College London, UK).

National main speakers:

– Marcelo Alegre (Buenos Aires University, Argentina)
– Alejandro Chehtman (Di Tella University, Argentina)
– Mariano Garreta Leclercq (National Research Council, Argentina)
– Osvaldo Guariglia (National Research Council, Argentina)
– Julio Montero (National Research Council, Argentina)
– Eduardo Rivera López (Di Tella University, Argentina)