While a step in the right direction for universal rights, ASEAN’s human rights declaration is no Magna Carta, writes MATHEW DAVIES.
The Magna Carta is much invoked but little understood. Most recently Kevin HR Villanueva has claimed that the ASEAN Human Rights Declaration (AHRD) stands as a Magna Carta for Southeast Asia. Strong words; but, I fear, words bred of a rather optimistic understanding of both the AHRD and, incidentally, the Magna Carta itself. That being said, the similarities and differences between the 13th century charter and its 21st century counterpart are illustrative.
Perhaps the crucial difference between Magna Carta and the AHRD is that while the former was drafted by those who wanted something, the latter has been created by those who, in many cases, seem to want to avoid something. Magna Carta was forced upon a reluctant King John at the nadir of his fortunes. It protected the liberties of the English elites, the barons of the realm, from the arbitrary depredations of a monarch with scant regard for their apparent rights.
As for the AHRD there is considerable evidence that many of the 10 members of ASEAN are engaged in a consistent policy of avoiding human rights obligations. I have recently been researching how ASEAN member states have, or in more cases have not, aligned themselves with core global human rights treaties. While there has been an ever rising number of ratification of human rights treaties by Southeast Asian states, there remains a considerable gap between the ratification of treaties by governments and evidence that those same governments intend to comply with the content of those treaties. The reports prepared by the United Nations Human Rights Council catalogue a litany of enduring shortcomings. Further, all ASEAN members have used reservations and declarations to avoid articles to treaties they deem objectionable. The right to individual petition offered in numerous optional protocols has received a very hostile reception.
We must not forget that it is these states that have crafted the AHRD and their penmanship is clearly visible. I have already written here about the dual nature of the Declaration, but suffice to say there is succour to both sides of debate. The optimist can, as Villanueva does, draw reference to the stronger embrace of universality, or the most detailed description of human rights ever put in an ASEAN document. The sceptic will focus on the statements about regional and national context which seem to echo early 1990s statements of exceptionalism, whilst critiquing the content of the AHRD as too vague and too imprecise to really drive regional oversight.
How can those who are interested in rights in Southeast Asia make sense of all this? How can the AHRD be assessed? Again the Magna Carta provides a parallel. What is often forgotten is that the Magna Carta failed. It was a statement of intent, not a declaration of irrevocable fact; signed by a monarch in extremis, and reneged upon at the first opportunity. This is why the document was reissued and reaffirmed dozens of times over the following centuries, because it was so often broken and ignored. The importance of Magna Carta emerged slowly, as it became embedded into the thinking and aspirations of people over time. Things are not created bedrocks, they only assume that mantle over time. The charter was encrusted over time with a faith that its words alone, and its immediate fate, did not warrant.
In this light, it is simply too early to assess what the significance of the AHRD, if anything, will be and over what timescale that significance will be revealed. It is tempting to see a straight path from the first tentative regional efforts towards reform in the post financial crisis world of 1997 through to the AHRD and to use that presumed path to argue that the trend will inexorably continue. But, just as contemporary liberal democracy was not determined by Magna Carta, so too the AHRD makes nothing inevitable. Yes, there is tantalising evidence of a renewed commitment to rights, but the language of the AHRD is ambiguous and many member states who have agreed to it display scant interest in complying with the existing global human rights treaties that they have ratified.
I do not wish to be negative and I certainly do not want to claim that the AHRD will fail. Rather I suggest we cannot know the ultimate importance of the AHRD from the wording of that document or the immediate assessments of it that have flowed forth. It is how it will be used, and whether it is built upon or forgotten, that will determine its eventual importance. There are many pieces of paper, constitutions and declarations, drawn up by governments; only sometimes do they turn out to be Magna Carta.
Dr Mathew Davies is a research fellow at the School of International, Political and Strategic Studies in the ANU College of Asia and the Pacific. His research interests cover human rights, socialisation, ASEAN, the EU, the OAS, regionalism, norm diffusion and international relations theory.