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).