The Universal Declaration of Human Rights: A Normative Benchmark for Southeast Asia?

Abstract

The study of the regional dynamics of the Universal Declaration of Human Rights is a way to assess its normative power. Sometimes seen as locally inadequate and poorly implemented, the Universal Declaration of Human Rights also competes in Southeast Asia with other regional doctrinal discourses (such as Asian values). Evaluating its normative power can however be achieved by comparing trajectories, establishing typologies and seeking to draw trends. The reluctant, incomplete, disappointing and often misleading adoption of the Universal Declaration of Human Rights in Southeast Asia is examined here in three stages: (1) Signature; (2) Progress and (3) Avoidance (from putting into practice). Throughout this chapter, certain questions will be raised: to what extent has the UDHR been incorporated into the local legal systems? Could ASEAN, as a regional association, not develop a specific human rights regime? Finally, might the UDHR conceivably constitute a normative and practical reference point for governments, associations and individuals?

Over the last decade, the diverse Southeast Asian political regimes have adopted relatively authoritarian and often repressive models of government. These States are buoyed by economic growth and a general increase in income, although marked by crises, most often quickly overcome. The general picture of a contemporary Southeast Asia with an authoritarian majority and few democratic governments (Morgenbesser & Weiss, 2018) should not, however, obscure the dynamics of each national political scene with their respective waves of progress and retreat of democracy and its corollary: the back-and-forth in terms of fundamental rights and freedoms.

Due to its rapid economic development, Southeast Asia benefits from the image of a rather stable region that has succeeded both economically and socially in its integration into the global economy. “However, transformations are very rapid, even brutal, and while governments, often very authoritarian, try to hide tensions to reassure investors and tourists, confrontations between development models are at the root of countless conflicts, some of which are very intense” (Mellac, 2019: 231).

Indeed, the accelerated dynamics of capitalist development, driven in particular by export-oriented agriculture, industrial zones, mega-dams and the revival of the mining sector, are combined with demographic growth and urbanisation, which increase the challenges posed by the appropriation and use of land. In addition to land-related conflicts, social movements which touch on the political status of religion, corruption, nationalism, identity claims, industrial pollution and so on are being heard. But in most moments during the recent years, economic and political changes have been imposed from above by the exercise of public force. In some clear situations of human rights abuses, governmental political power seems to forge the dynamics while social movements are relegated to a rather passive factor: whether it is the 2014 coup d’état in Thailand, the repression of journalists or the bloody fight against drugs led by Rodrigo Duterte in the Philippines, the imprisonment of bloggers in Vietnam, the intimidation of the opposition in Malaysia between 2013 and 2018 or the brutal return to the military after the February 2021 coup in Myanmar.

In this context, the study of the regional dynamics of the Universal Declaration of Human Rights is also a way to assess its normative power. Sometimes seen as locally inadequate and poorly implemented, the Universal Declaration of Human Rights also competes in Southeast Asia with other regional doctrinal discourses (such as Asian values). This study of its diffusion and implementation will be conducted through relating the discursive field to (debatable but nevertheless necessary) indicators (Rich, 2011); comparison and typologies and trends. The reluctant, incomplete, disappointing and often misleading adoption of the Universal Declaration of Human Rights in Southeast Asia is examined here in three stages: (1) Signature; (2) Progress and (3) Avoidance (from putting into practice). Throughout this chapter, certain questions will be raised: to what extent has the UDHR been incorporated into the local legal systems? To what extent could ASEAN develop a specific human rights regime? Finally, might the UDHR conceivably constitute a normative and practical reference point for governments, associations and individuals: either as an achievement to be defended, or as a shared basis for the future of these polities?

Signing: A Review of UN Conventions in Southeast Asia in 2020

The Universal Declaration of Human Rights was signed in December 1948 in Paris: at that time, the only Southeast Asian country to participate was Burma, which had been independent since January but was plagued by strikes, armed struggle and mutinies. Burma signed the declaration alongside three other Asian countries: India and Pakistan, which had recently become independent, and also China, whose delegate, the intellectual and diplomat P.C. Chang, had made a significant contribution to the universalist character of the declaration during the deliberative process within the Third Committee.¹

The Dynamics of Signature: Heterogeneous and Temporally Contrasted

The first step in examining the relationship of Southeast Asian countries to the UDHR begins with the review of the signing of international human rights conventions and covenants by their respective governments.²

The process of signature encompasses the 1948 UDHR and the two fundamental treaties (International Covenant for Civil and Political Rights, ICCPR and International Covenant on Economic, Social and Cultural Rights, ICESCR) adopted in 1966 (together referred to as the International Bill of Human Rights) as well as several international Conventions inspired by the UDHR, and their optional protocols (Table 3.1).

Table 3.1 ASEAN’s Signatories to international human rights treaties

Asynchronous, the signing process is neither complete (not all conventions, covenants and protocols are signed) nor unanimous (not all countries sign or ratify the same text). The conflicting conditions under which most of the statesmen of the young decolonised nations of Southeast Asia attempted to forge and stabilise nation-building in the face of centrifugal social forces, and maintained their power in the midst of the Cold War, easily explain the practical impossibility for these governments to sign the early UN conventions, which they all too obviously violated. At the level of ASEAN from 1967 onwards, its five founding fathers advocated the rule of non-interference in the internal affairs of neighbouring countries. This principle was adopted as part of the ASEAN Way, establishing a modus vivendi capable of fulfilling the promise of peace and external stability³ and has gained increasing substance over the past decades. Non-interference was also the clear sine qua non condition for the subsequent accessions of Brunei, at its independence in 1984, Vietnam, 1995; Laos, Burma (1997) and Cambodia, in 1999.

The signing of the Human Rights Conventions by the ASEAN countries presents a heterogeneous dynamic in its trajectory and contrasts in its practical significance. Indeed, only two Conventions have been signed by the eleven countries in the region: the Convention on the Rights of the Child (CRC, 1989) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1981) (signed by 11 countries/11). However, for these two conventions a number of reservations have been made regarding respect for Islam (Malaysia, Brunei) or arbitration (Thailand, Vietnam, Singapore), which weakens their scope. In addition to these two conventions ratified by all, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965) has nine signatures, as well as the more recent Convention on the Rights of Persons with Disabilities (CRPD, 2006): they are among the most accepted conventions (9 countries/11). Together with the Convention against Torture (CAT, 1984), the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) has eight signatures (8/11). However, it contains strong reservations from Indonesia, and rejection (Thailand, Myanmar) of the article on self-determination. The International Covenant on Civil and Political Rights (ICCPR, 1966), which is demanding for an authoritarian regime, comes next (7/11). Other areas rank low on number of signatures because they are problematic in terms of their implementation: the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW, 1990) and the International Convention for the Protection of All Persons from Enforced Disappearance (CED, 2006) have only been signed by a minority of Southeast Asian countries. Finally, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity has only been signed by Vietnam and the Philippines (2/11).

The fact that the main UN conventions have been ratified in the region by at least several countries indicates a minimum degree of acceptance of the global human rights system. To draw the contours of this acceptance more clearly, we may classify the countries in the region into three groups based on the number of conventions and protocols signed: the “best in class” (on paper); the intermediate cases (“half-hearted goodwill”) and the least committed.

The Best Performers Show the Strongest Political Contrasts (Indonesia, Philippines, Cambodia and Timor Leste)

In Southeast Asia, the four countries that have ratified the most UN human rights conventions are Indonesia, the Philippines, Cambodia and Timor Leste. This calls for further analysis, as the political reality of human rights protection on the ground is extremely varied.

In the group (Table 3.2), the trajectories of signatures are strongly influenced by internal political conditions, as well as by the role of the international community in national construction and political stabilisation as two interplaying factors.

Table 3.2 The best-in-class (date of ratification or of signature if no ratification, and reservations to the conventions)

Indonesia has been a regional leader in signing conventions, but the momentum came rather late. The fall of the New Order finally allowed a breakthrough with the ratification of the CAT (October 1998) and the gradual signing and ratification of all other conventions apart from the Convention on the Enforced Disappearance of Persons (not yet ratified) and the Convention, on War Crimes and Crimes Against Humanity (not signed).

The Philippines also appears to be proactive in signing the Convention on Social, Economic and Cultural Rights early, and the Covenant on the Elimination of Discrimination against Women two years after its entry into force. The overthrow of Ferdinand Marcos in 1986 enabled the signing of the Convention on Civil and Political Rights and the Convention on the Elimination of Torture. As in Indonesia, the fall of the dictator quickly triggered a new dynamic in favour of signing. Finally, from June 1986 onwards, the other Conventions were signed on average two years after their entry into force, a rapid trajectory that paralleled the pace of the UN. However, the Convention on Enforced Disappearances (2006) has not yet been ratified and, following the election of Marcos’s son, Ferdinand Romualdez Marcos in 2022, this seems unlikely to be on the agenda anytime soon.

Another country that has signed many international conventions is Cambodia, despite the poor quality of human rights protection in the country. The Convention on the Elimination of All Forms of Racial Discrimination was signed at the end of 1983 under the occupation of Vietnam, which had signed the Convention in 1982. The other signatures date from the post-Paris Peace Agreement period (1991-), during the national reconciliation process under the auspices of the United Nations. The signing of Human Rights Conventions continued, despite the authoritarian drift of Prime Minister Hun Sen.

Following independence in 2002, Timor Leste signed all the conventions and covenants associated with the UDHR between 2003 and 2004. It is the only country to have ratified the Protocol on the abolition of the death penalty. Rather than a simple transposition of Indonesia’s signatures, this active entry into the international human rights system manifestated both democratic goodwill towards the international community and compliance with the UN system. Although it has signed slightly fewer Conventions than the other three countries in this group, Timor Leste nevertheless presents one of the most convincing dynamics of inclusion in the international human rights system: in the region, only the Philippines and Timor Leste have signed and ratified the CCPR-Second Optional Protocol aiming to the abolition of the death penalty.

Intermediate Cases: “Mainland Mixed Goodwill” (Vietnam, Laos, Thailand)

 As the ASEAN member most closely tied to the Western bloc and relatively democratic before the 2014 military coup, Thailand sits in the class of intermediate signatories alongside Vietnam and Laos, the two socialist republics of ASEAN. The signing trajectory of the latter two testifies to a certain nominal commitment to the universalist and emancipatory values of the UDHR. The Vietnamese government for instance, regularly recalls that since the Doi Moi in 1986, “it has placed human rights at the centre of all its development policies”.⁴

In these three mainland Southeast Asian countries, government positions combine traits of universalist goodwill with an art of reserve (Table 3.3).

Table 3.3 Intermediate cases (“mainland mixed goodwill”)

In Vietnam, the Convention on Racial Discrimination (CERD), the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Social, Economic and Cultural Rights were signed in 1982, before Doi Moi. Alongside the Philippines, it is the only ASEAN country to have signed the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (in 1983). The Convention on the Rights of the Child (CRC) was signed and ratified as soon as it was adopted (1990). The 1984 Convention on Torture was only signed in 2007 and ratified in 2015. However, the Convention on the protection of migrant workers (ICMW) has yet to be signed.

Similarly, Laos has signed all the Conventions except the one on the protection of migrant workers and their families. It has however not ratified the Convention on the Elimination of Torture and has made reservations on civil and political rights or on the elimination of racial discrimination, de facto limiting the scope of these latter signatures.

Finally, Thailand has signed all the Conventions except those on migrant workers and on the non-applicability of statutory limitations to war crimes. At the same time, it has made reservations to almost all the Conventions except those on the rights of persons with disabilities: these reservations greatly diminishes the value of the signature.

The Least Committed: Former British Possessions (Malaysia, Myanmar, Singapore and Brunei)

Four countries stand out for having signed very few international human rights conventions and for having refused to ratify the two fundamental covenants (ICCPR and ICESCR). Interestingly, all four countries share the historical experience of British colonial administration (Table 3.4).

Table 3.4 The least committed

The least committed are Myanmar, that has only signed three of the (most consensual) human rights conventions, and Malaysia, which, under UMNO rule from 1955 to 2018, then again in 2021–2022, signed only three Conventions (CEDAW, CRC and CRDP). A series of reservations made these Conventions conditional on compliance with the sharia and/or the Constitution, weakening their scope. Following the pro-rule of law ballot revolution of the May 2018 elections, the issue of Malaysia’s ratification of UN conventions, including the reconsideration of the death penalty, has been raised to the highest level of parliamentary debate, but without the hoped-for progress (Sreenevasan, 2022).

Singapore signed the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) in 1995 with a number of reservations, including the refusal of international arbitration, stating that it could disrupt the country’s “ethnic and religious harmony”. The Convention on the Elimination of Discrimination against Persons with Disabilities was signed, noting that it corresponded to existing Singaporean legislation. Finally, the Convention on the Elimination of All Forms of Racial Discrimination was signed in 2017 without any reservations. The death penalty (the abolition of which is covered by the Second Optional Protocol of the ICCPR) remains in force in Singapore, as the 2022 “wave of hangings” illustrates.⁵

Similar to the other countries in this category, the oil-rich Sultanate of Brunei only started signing human rights conventions in the 1990s (the first out of four in 1995). One of the four signed Conventions has yet to be ratified and the other three have been accepted with reservations that prevent their de facto application, except in harmless cases subject to the respect of the sharī’a and the Constitution.

The fact that these are authoritarian or semi-authoritarian regimes does not alone suffice to explain the weakness in the implementation of the UDHR. This would be to overlook the existence of democratic progress in these countries, as well as setbacks in countries that perform better in terms of signing international human rights treaties. Arguably, what also plays a role is the British legacy of a preference for the common law.

The classification of signatory countries is summarised in Table 3.5.

Table 3.5 Classification of signatory countries: summary

ASEAN countries have mostly accepted the human rights discourse anchored in the UN context. It undeniably represents a shared rhetoric (Rich, 2011: 186) which runs counter to the “Asian Values” discourse.

However, behind the relatively high number of signatures and ratifications, the degree of acceptance and transposition into local legal systems remains highly variable, even questionable. The ratification of these treaties has been further compromised by reservations and objections.

At the regional level, however, the first decade of the new millennium bore the mark of relative progress in the implementation of the UDHR.

Moving Forward: A Protective Regime in the Making, ASEAN Progress from 1998 to 2012

Notwithstanding the fact that the issue of human rights took far too long to make its way onto the ASEAN agenda, and despite the glaring violations thereof, it is now, at least gradually, becoming part of regional policy among states. The ASEAN agenda can thus be viewed as departing from its initial objectives of security (Boisseau du Rocher, 2017) and economic development. Still, the notion of a regional system that is more protective of rights appears to be relatively distant, and even at odds with political scientists’ predictions. Criticism of the shortcomings vis-a-vis effective protection of these rights and freedoms continues to dominate. Nevertheless, Jacques Dupouey, one of the few European lawyers to take ASEAN’s legal development seriously, a process which began in 1967 (Dupouey, 2017), believes that the human rights dimension is not absent from the modest normative structure being created. Successive integration phases illustrate this regional empowerment, at the end of the 2000s and at the beginning of 2010s for instance, the defence of human rights is progressively viewed as vital and imperative: human rights values and their inclusion in institutional work have since evolved along these lines.

Unprecedented Regional Institutionalisation Stages

Parallel to the rise of an ASEAN values discourse, somewhat paradoxically, the elaboration of a legal regime for the protection of human rights can be observed in Southeast Asia. No mention was made of such during ASEAN’s first 25 years. The turning point came in 1993 with the Vienna Conference, which left its mark on the ASEAN approach to human rights. In Southeast Asia, this conference was preceded by a preparatory meeting from which the Bangkok Declaration was drawn up to reflect the aspirations of the countries in the region. The 26th ASEAN Ministerial Meeting which took place in Singapore in July 1993 released a Communiqué recognising that

Human rights (which) are closely related, indivisible, are civil, political, economic, social and cultural rights. These rights are of equal importance. They must be approached in a balanced and integrated manner and protected and promoted taking into account the specific cultural, social, economic and political circumstances… the promotion and protection of human rights must not be politicised. (Dupouey, 2018)

There are three asserted principles here: respect for national sovereignty, territorial integrity and non-interference in internal affairs; the need to link civil and political rights with economic, social and cultural rights and an emphasis on economic growth and development rather than on fundamental rights and freedoms. Much has been made of the distancing of the principles of individual freedom (while “Asian values” emphasise the nation, society, family) and the affirmation of cultural relativism.

Carried by ASEAN itself, in other words by the consensus of these Southeast Asian States, this Declaration paved the way for future commitments in favour of ensuring due consideration of human rights on a regional scale. Indeed, as early as 1995, a working group for the establishment of ASEAN human rights mechanisms was set up, followed by the drafting of successive action plans: ASEAN Vision 2020 Hanoi, Vietnam, (1997(only two years after Vietnam joined ASEAN) and Vientiane, Laos,) in 2004, which organised the preparation of the ASEAN Community (2015).

Against this backdrop of renewed ASEAN institutional development we can observe increasing progress vis-a-vis the recognition and protection of human rights. Firstly, the ASEAN Charter, considered as the “Constitution” of ASEAN was adopted in November 2007. The ASEAN Human Rights Declaration was subsequently signed in Phnom Penh, on the 18th of November 2012. The latter reaffirms the respect for and protection of human rights and fundamental freedoms, as well as the principles of democracy, the rule of law and good governance. It also upholds ASEAN’s commitment to the UDHR and assesses the importance of efforts in promoting human rights⁶”. Furthermore, the 31st of December 2015, at the end of the Malaysian chairmanship, saw the establishment of the ASEAN Community: “Human rights can now be considered part of the ASEAN Community, although they are not explicitly mentioned in the three pillars. Several entities, in particular the ASEAN Political and Security Community and the ASEAN Socio-Cultural Community have recognised human rights principles, such as equality and justice” (Khoo, 2017: 67).

In a departure from the defensive posture of states towards human rights terminology, the institutionalisation of a more protective ASEAN regime was underway in the 2000s (Dupouey, 2018). Two precursor areas of vigilance are the protection and promotion of the rights of migrant workers on the one hand, and the protection of the rights of women and children on the other. Following the “ASEAN Declaration against Trafficking in Persons, Especially Women and Children” (2004), the Association issued its “Declaration on the Protection and Promotion of the Rights of Migrant Workers” in January 2007, the ASEAN Committee on Migrant Workers (ACMW, 2007) was subsequently established. This was initially led by Malaysia and Singapore, Thailand and Indonesia became involved too. An ASEAN Women’s Committee (AWC) was established in 2005, giving rise to the Jakarta based ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) in 2010, based in Jakarta. The latter’s efforts leading to the adoption of the “ASEAN Declaration on the Elimination of Violence against Women and Elimination of Violence against Children” at the ASEAN Summit in 2013.

The Thematic Commissions and regional initiatives aimed at bolstering Convention implementation, heralded the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR). The AICHR was the fruit of years of discussion and external pressure and was launched at the opening of the 15th ASEAN Summit in Cham Am, Hua Hin, Thailand in 2010: It comprises the ten ASEAN member countries along with Timor Leste which holds observer status, and manifests ASEAN’s commitment to a regional cooperation strategy on human rights.

Progress Markers: National HR Institutions and HR Indicators

In parallel, new national instruments have been developed through the establishment of national human rights institutions (NHRIs) responsible for the promotion or protection of human rights. The national institutions act as interfaces in ensuring international standard implementation at local level. They promote States’ compliance of international obligations and mediate between human rights associations and governments. They can emerge autonomously, as in the Philippines in a context of martial law abuses,⁷ or over time, as was the case following the Paris Principles (1993).

The most recent was set up in 2011 in Myanmar, but it does not cover all Southeast Asian countries: of the three groups established above, the states with the best record of signing treaties and conventions are also the most active here. Cambodia too falls within this bracket, although they have now reportedly abandoned the project, Vietnam has been committed to establishing such an institution since 2013 (Khoo, 2017: 71). There are only 6 NHRIs in Southeast Asia in 2023 (Table 3.6).

Table 3.6 National Human Rights Institutions in Southeast Asia

According to Khoo Ying-Hooi, the most significant regional instrument, in use today was created in 2009: the Southeast Asian Human Rights Network Forum (SEANF), a network of national human rights institutions (NHRIs) which aims to “join forces to accelerate the establishment of an ASEAN human rights mechanism” (Khoo, 2017: 71). This network was broadly considered to have “the potential to make a huge contribution, not only in the promotion but also in the protection of human rights, by acting as a bridge between the ASEAN Intergovernmental Commission on Human Rights (AICHR) and civil society organisations” (Khoo, 2017: 73).

Thus, the shift in the ASEAN Community with respect to human rights is now more widely recognised and, on the surface at least, even acknowledged. Further to formal progress in building an ASEAN-wide human rights regime, the Freedom House Political Rights and Civil Liberties Index noted improvements in political rights and civil liberties in the majority of ASEAN countries between 1998 and 2012.

As Table 3.7 illustrates, improvements occurred in seven of the eleven countries in the region. We have first to consider the high number of scores 6 and 7, featuring the lowest levels of freedom and rights for countries according to the Freedom House system of rating. Beside this, the most notable improvements were in Post-Suharto Indonesia,which transitioned from being “not free” to “free”, followed by Timor, which gained independence in 2002. Conversely, only two countries, the Philippines and Thailand (in the aftermath of the 2006 military coup), back-slided, becoming “partially free”. Finally, it is worth noting that the worst-rated countries under these criteria, Laos and Myanmar (classified as “not free”), stagnated between 1998 and 2007. Is it possible to link this progress in the effective defence of rights to the normative frameworks of international treaties and conventions stemming from the UN on the one hand, and from ASEAN on the other?

Table 3.7 Human rights indicators in Southeast Asia at the turn of the twenty-first century: a dynamic of regional progress

Avoiding Consequences: Declarations and Signatures with Little Follow-Up

Despite the cascade of signatures and the momentum of institutional progress at the ASEAN level, the region still seems to refer to the UDHR to avoid the implementation of principles, despite its commitments. As Antje Jetschke recalls, the adoption of the ASEAN Charter by governments that had previously preferred to rely on the principles of non-interference and sovereignty in 2007 affirmed a commitment to uphold human rights. This came as a surprise to observers. “The organisation presents[] itself as an economic and political community concerned with the rule of law as well as political stability. When Southeast Asian countries asserted that human rights were now central to regional integration, the primary goal remained economic and strategic, aimed at continuing to attract foreign investment, not political (Jetschke, 2017: 67). In addition, commitments are waning: the Asian values discourse has been revived in parallel with the recent wave of autocratisation in Southeast Asia, as Mark Thompson clearly states (Chapter 17).

Both immediate political history and human rights indicators affirm that the results in terms of promotion and protection of rights remain weak on the ground. In fact, the political, administrative and institutional capacity to promote and protect rights remains very limited. It oscillates between progress and setbacks on a timetable determined by the realities on the ground rather than by external commitments. Avoiding the implementation of these rights and drawing necessary practical consequences appears to be a strategy that is widely adopted at the regional level. It corresponds well to the theoretical background of “Asian values”, which emphasises the specific and the historical as well as the political character of human rights and their interpretation. Their implementation cannot be directly copied from a dominant Western interpretation, nor imposed from the outside if the political context does not lend itself to it, i.e. if the government in place is not ready.

Maintaining Paradigmatic Asian Values

Neither really coherent nor overt, the discourse on Asian values supports the existence, or even the pre-eminence, of common cultural values in Asia (theoretically shared by East Asia, and even beyond: Southeast Asia, India, etc.). This essentialist position, often described as culturalist and relativist, directly supports or even underpins statements made in relation to it in the 1990s. As expressed during the preparatory meetings for the world conference for the 45th anniversary of the UDHR, and uttered by the Singaporean Minister for Foreign Affairs during the Vienna Conference (June 1993), the divergence of views clearly concerns the universality of human rights. Distancing themselves from accusations of relativism, these authors defend themselves against dictatorial discourse (“Culture is no excuse”). Bilahari Kausikan, the Asian Values theorist⁸ claimed in 1995 that “order and justice are achieved in different ways in different countries and at different times”. In terms of development, Asian societies are struggling with the question of how to sustain their economic success over the long term. They are “searching for their own formula for balancing capitalism, state, society” (p. 277). Finally, the extent and application of fundamental rights and freedoms is the product of historical experiences of particular peoples: like all norms, they vary from one culture or political community to another”, and over given time periods. Constructivist sociology could not put it better today! Thus, in one move, the Bangkok Declaration recognises the universality of human rights while simultaneously highlighting contextual diversity (religious, historical and cultural).

Asian values are a constant underlying presence and still inform, to an extent, the human rights stances adopted by ASEAN and its member countries (Chapter 17).

Transposing Asian Values into Human Rights Texts

As ASEAN makes formal progress towards a new regional human rights system, a body of Asian values and intellectual references can be observed in the form of the ASEAN Declaration on Human Rights (2012). The Declaration re-emphasises the principle of national sovereignty/territorial integrity/non-intervention in internal affairs (ASEAN guiding principles since its inception). Several provisions clearly weaken the universalist message behind human rights’ promotion, a criticism that will be very systematically addressed.

The Office of the High Commissioner for Human Rights (Geneva), in an Open letter published in 2012, recalled that the region must apply the principles of the UDHR at a minimum, something that it does not really do. The letter referred to the drafting of the Declaration as a historic task, the Coordinating Committee of the Special Procedures of the Human Rights Council emphasised that the adoption of a credible ASEAN Declaration on Human Rights would be a significant step forward, if at a minimum, the ASEAN human rights instrument upheld international human rights standards. However, ASEAN’s recognition of human rights is qualified by provisions such as “in accordance with national law”, which governments can use to justify their failure to meet international standards. Another point of contention is that the Declaration departs from the international law terminology and refers to balancing rights with duties.

Such a provision should not be included in a human rights instrument, whose primary objective is to protect individuals and groups against the abuse and misuse of state power. It is also recalled that restrictions on grounds of “morality, public order and national security”, although deemed legitimate, carry the risk of being used to impose arbitrary, disproportionate and unnecessary restrictions on human rights. Finally, it is regretted that concerns of particular relevance to the region are not present in the Declaration, such as asylum from persecution, the principle of non-refoulement and the response to statelessness (especially of children).

Compromising Human Rights

For B. Kausikan, the practical implementation of a human rights regime in Asia should occur at the Asian government level. It is not to be undertaken by citizens or political rights groups supposedly supported by foreign powers. While universality is a crucial element in the controversy surrounding Asian values, the authors argue that one should accept the idea of rights being adopted in line with the implementing country. The country’s culture must be factored in. Also, pragmatically, its specific development context, economic and political, cannot be overlooked. As Wong Kan Seng, Singaporean Minister, says: “at best, Human rights progress is marked by ambiguity, compromise and contradictions”.⁹

An example of this ambiguous progress through compromise is the social clauses that currently apply to ASEAN countries in their latest trade and investment agreements with the European Union: as “social conditionality offers a first privileged terrain to try to grasp the phenomena of transformation of social rights” (Porta, 2019: §6), it is at work today in the Southeast Asian region in new areas of international and European regulation through trade agreements such as the UE-Vietnam or UE Singapore Trade Agreements, the Due diligence Regulation and in investment agreements.

Finally, the rise of the People’s Republic of China is also facilitating Asian values’ comeback. They are increasingly referred to in pan-Asian political or diplomatic meetings, as exemplified by a meeting of Asian countries in May 2019 which revived Asian values’ rhetoric: these values are mentioned, without any introduction or explanation, as if, despite having not been brought up for twenty or so years, they had never ceased to permeate and vitalise, if not the regional public space, then the Asian intellectual soul at the very least: “Asian values favour a consensual approach and communalism over individualism, and give priority to social order and harmony as well as respect for elders, discipline and a paternalistic state and the primary role of government in economic development. Asian values are the essential ingredients for learning to work together in trust and, therefore, for promoting globalisation”.¹⁰

Acknowledging Principles, Failing to Implement Them

There is no real enforcement of the human rights system in Southeast Asia, partly because there is no common position on human rights among the region’s countries. This is due to their profoundly heterogeneous political regimes, the political diversity of their governments and their complex bilateral relations with Europe and the United States. Enforcement also suffers from the fact that Southeast Asian countries are characterised by authoritarian rule, or at least strong political control. Lastly, the legal system for the promotion and defence of human rights has no power of imposition or coercion: the veneer of progress ostensibly illustrated through the ever growing number of research centres, lawyer networks, parliamentarians and committees belies a legal reality whereby no obligation for governments to protect and promote human rights exists. In addition, very few human rights reports are actually submitted by Southeast Asian governments to the Human Rights Committee, despite their obligation to do so.

There are other elements that regimes take advantage of when avoiding their commitments. Important limitations are noted at the institutional structure level regarding the rights protection regime: firstly, and notably, the clear absence of a mandate to conduct independent investigations and the appointment of AICHR members by governments to whom they are accountable deprive these members of their function of protecting human rights independently of states. On the other hand, in most countries in the region, the Commissions in charge of the regional rights protection mechanism do not demonstrate any guarantee of independence as their members are appointed by the governments in place.

Finally, national human rights institutions, because they are publicly funded, are often in a particularly ambiguous position to play their advocacy role. In Southeast Asia, the East Timorese institution, the Provedor for Human Rights and Justice of Timor Leste (PDHJ, 2004), is the only one that refers to an ombudsman, i.e. mediator, with prerogatives of investigation and control of state administrations, the others only play an advisory and relay role between civil society and the government. As a result, and also because the ASEAN Intergovernmental Commission on Human Rights (AICHR) seems to have chosen to consider them as civil society organisation among others, and not to rely on their political or thematic expertise, these institutions cannot effectively contribute to progress in the promotion or protection of rights in the region (Khoo, 2017). The lack of legitimacy, credibility and room for manoeuvre of these national institutions is evident, with Timor Leste being the one exception.

The typology drawn up by the International Council on Human Rights Policy (2015) is very enlightening when considering why these national institutions were created and consolidated in recent years. Alongside countries in post-conflict transition (Ireland, South Africa, the Philippines, to which we should add Timor), a second category mentions those that aim to strengthen the protection of fundamental rights (France, Canada, Australia). The last configuration brings together states facing international pressure due to human rights violations: creating these dedicated national institutions therefore makes it possible to show that something is being done to respond to these problems. This last category is clearly the most relevant to explain the existence of most NHRIs in Southeast Asia: these institutional creations appear ultimately designed to satisfy the states’ partners on the international stage. They may well be simply the result of State adaptation (Cardenas, 2001): “some governments think that the establishment of these human rights institutions will be a way of improving their international reputation, at little cost” (Khoo, 2017: 69). This is also the thesis argued by K. Fitzpatrick and C. Renshaw: in the countries where NHRIs are established, they are not the only thing to have an impact. Renshaw: in countries where international pressure is strong while domestic pressure is relatively weak, possibly because it is muzzled, national human rights institutions are essentially designed to promote the States. This explains “why we have abusive regimes with very poor human rights records that will try to set up a national human rights institution” (Fitzpatrick & Renshaw, 2012).

The progress made in building a formal normative system must therefore be reduced to modest proportions when one considers the impotence of the implementation instruments, the low number of reports on human rights submitted to the UN, and the considerable delay in submitting these reports, or indeed how many of them are suspended. Certainly, even if the conventions are signed, at least if some of them are, we still observe that the acceptance of their enforcement mechanisms remains to be seen in the vast majority of cases.

The Temptation to Backslide on Rights Protection Since 2014

Despite the signatures and formal progress, human rights violation remains the norm regionally, effectively ensuring that their effective protection be a distant prospect. In order to illustrate this gap, an examination of human rights indicators in relation to the formal commitments made by the region’s states and the normative dynamic in which ASEAN operates underscores the profound contrasts within the countries of the region. It also highlights the gap between partially recognised principles and their realisation in terms of the defence of rights. To establish a diagnosis of the human rights situation in Southeast Asia also requires, in the most traditional way for critics of government action, an examination of the violations of these rights, as recorded annually in Amnesty International’s reports, by Human Rights Watch or the International Commission of Jurists, or indeed as summarised in the human rights indicators, for example those of Freedom House (Rich, 2011). However, all these reservations, both on the principles and on their implementation, should not obscure the formal progress dynamic that emerged. This is all the more notable as this dynamic may well have since dissipated, merely serving as a reminder of a historic peak in the regional history of the establishment of legal structures for the defence of rights.

Back to the drawing board then? While there was talk of civil societies waking up, of democratic transition and of social and political progress bolstering the continuation of a strong trend towards higher incomes in the region, the year 2014 saw this turn on its head through the emergence of a new dynamic of regression in the protection of human rights. The year was marked by a coup d’état in Thailand, reflected in the Freedom House indices, the authoritarian flight to safety of Malaysian Prime Minister Najib Razak, for instance (Gomez & Ramcharan, 2014).

In the aftermath of the Phnom Penh Declaration (2012), an ephemeral stability process was roughly reflected in the Freedom House indices of civil liberties and political rights (Table 3.8). It was the result of a regional syncretic combination of several trends: the decline of human rights in the world; the weakening of Europe’s normative power; the withdrawal of US involvement and the rise of Chinese economic and geopolitical power. Indeed, following the financial crisis of 2008 and 2010–2011, the European democratic model began a rapid descent in Asia. That was before it was further weakened by the rise of illiberal democracies and populism. Two years later (2016), the region witnessed the unexpected disengagement of the United States under the Trump presidency, suddenly renouncing its internationalist and interventionist vocation that Barak Obama’s Asian pivot had almost solidified. In this profoundly renewed context, the spread of the competing Chinese political model to Southeast Asia can be read as a potential trend: at the time classified as “unfree” by the Freedom House criteria,¹¹ the People’s Republic of China has increasingly asserted itself as a normative power since 2013 under President Xi Jinping.

Table 3.8 Regional dynamics of regressive stability: 2013–2019

The Chinese authoritarian political model, economic expansion through direct investment by relocating companies, massive investment in infrastructure, and Chinese development aid seem to be leaving an unprecedented normative imprint on the Southeast Asian space (Lafaye de Micheaux, 2020). If we take the example of aid, of which the poorest countries in the region (Myanmar in the first instance, then Cambodia and Vietnam and to a lesser extent Laos) have been the main recipients between 2000 and 2012, along with Indonesia, its major principles are at odds with European aid principles (Lafaye de Micheaux, 2023). The same can be said for Japanese cooperation, both are demanding in terms of political conditionality and rigorous in terms of fund allocation transparency. Official development assistance from multilateral organisations can be described in the same way. The succession of the last three tables exhibit clearly that after the wave of improvment observed at the turn of the century (1998–2012), a relatively more balanced and stable political configuration has been attained regionally (Table 3.8): the lowest scores—6 and 7—represented then only 20% of the total of the ASEAN scores between 2013–2019 (instead of 39% as in table 3.7). However, during the early 2020s, from the Covid-Pandemic outwards, there was a noticeable and significant regression in various aspects of the Human Rights as they are encompassed in the UN Declaration. The weight of scores 6 and 7 (Freedom House, 2024) almost doubled compared to previous years (Table 3.9). A clear and deep decline of civil freedom and political rights is registered during this most recent period.

Table 3.9 Table 9

Conclusion: An Unstable Process

UDHR implementation in Southeast Asia is an unstable process, depending primarily on the position of states in the global system of international relations. Legal and political dimensions remain largely uncorrelated in that regard.

In Southeast Asia, the different trajectories of the UDHR’s incorporation into national laws seem at best to be dissociated from the social dimension of human rights in the countries involved. The emphasis placed by “Asian values” advocates the notion of process, rather than on the state of affairs at a given moment in terms of fundamental rights and freedoms. It appears to be highly relevant to the reading of UDHR principles and mechanisms in the region. At a formal mechanisms level and when it comes to the effective protection of fundamental rights and freedoms, the analysis highlights the need to take into account national political conditions over time. Setting normative developments in particular national contexts makes it possible to understand both the divergence in the commitments made by ASEAN states and in grasping the political and discursive spaces that allow governments to manage or justify the gap between these commitments and the de facto protection of individuals. Finally, a reading of the evolution of formal and real rights (dynamics that are both asymmetrical and non-linear) highlights the elastic and, at best, de-correlated nature of these trajectories: there is no simple and clear relationship between progress in the signing of UN Conventions associated with and deriving from the UDHR and the state of social rights in the countries. A high level of commitment or rapid progress vis-a-vis commitments does not translate into improved guarantees for the effective protection of people’s rights in those states. Nevertheless, the reverse is not true either: these international commitments cannot be seen as entirely artificial.

In general, over the past half century, the lack of a true nexus between the formal dynamics of the UDHR and its associated Conventions in international relations for Southeast Asia, including and especially in relation to progress at the ASEAN regional level, and the objective quality of actual respect for these rights in the area is evident. After a decade of progress which saw agreements being signed at the end of the Cold War, followed by a decade of relative improvement in the protection of rights and respect for civil liberties at the turn of the twenty-first century, a process which culminated in the formal ASEAN Declaration on Human Rights in Phnom Penh in 2012. Now, not only are there continuous conflicting situations, within what must be recognised as a space of great legal and political heterogeneity, but dynamics remain as contrasting as ever.