The ASEAN Human Rights Dialogue: Three Things to Watch Out For

On 5 September 2023, the ASEAN Leaders adopted the Declaration on The ASEAN Human Rights Dialogue. The declaration states that the chairing country of ASEAN may consider hosting it “to serve as a form of cooperative forum for dialogue on human rights thematic issues of ASEAN Member States to share human rights progresses and challenges with a view to enhancing cooperation for the promotion and protection of human rights”. Constructive discussion and deliberation are expected with “a view to improving cooperation among ASEAN Member States in enhancing capacity to address current and emerging human rights challenges”. Through the ASEAN Human Rights Dialogue (AHRD), the ASEAN Intergovernmental Commission on Human Rights (AICHR) is tasked to “work on a common understanding on the promotion and protection of human rights in ASEAN”. 

ASEAN’s institutionalization of the AHRD, while still voluntary based on the chair’s discretion, is significant. It marks yet another attempt by the regional bloc to open platforms for people to discuss human rights. Civil society organisations and entities associated with ASEAN (such as the Working Group for an ASEAN Human Rights Mechanism) are mentioned as being included in the dialogue. The declaration further reinforces the AICHR’s role in its Terms of Reference: to develop common approaches and positions on human rights matters, and obtain information from ASEAN Member States on promoting and protecting human rights.

Committing to a regional dialogue on human rights may not seem extraordinary to the lay public. Official news outlets and social media are, on an everyday basis, abuzz with stories on human rights. However, for keen observers of ASEAN and those noting that a minority group of ASEAN governments often resist the progress of human rights by taking advantage of procedural gaps such as the absence of a platform for human rights diplomacy, the AHRD should be welcomed. The institutionalization of a dialogue mechanism not only provides for that platform, but also “accumulates precedent”. As the practice of dialoguing multiplies, the uncommon will become common, such that human rights talk will achieve normality. Although there is a fear that banality may also breed neglect, it is argued that at this stage of ASEAN’s human rights journey, elevating the ‘status’ of human rights conversations to a more formal setting is necessary. 

Already, we see AICHR representatives regularly reporting at AICHR meetings on developments in human rights in their country and the region. Some representatives also express their concerns about the situation in other countries, such as Myanmar and the currently stalled Five-Point Consensus (5PC) implementation. Although no diplomat would like to hear negative things about their country, there is a certain level of trust and confidence in sharing information among themselves at the AICHR now. The AHRD is likely to be seen as an extension of the current AICHR practice, socializing and fortifying the practice through a formal mechanism on a larger platform. 

Moving Forward on the AHRD: Beyond Simply ‘Talk’, Higher Reporting Standards and Accountability   

The AICHR’s only tool at the moment to “implement” human rights is through persuasion and encouragement, hence, to “dialogue”. Coercion, through “hard” measures such as sanctions, judicial decision-making, and incentives (financial or otherwise), is out of the picture. Whether the AHRD will lead to robust outcomes for the implementation by the AICHR or ASEAN remains to be seen. 

Firstly, having a dialogue is not an end in itself. It is only a means to an end. The AHRD should consider having an outcome document providing critical points discussed and items to take action on. Alternatively, at minimum, in order to achieve the “common understanding” goal expressed in the declaration, it should also deliver a document stating the AICHR’s baseline position on a particular issue. Otherwise, the programme may be an exercise in futility. We are already seeing fatigue among diplomats who are required to attend interface events to exchange views annually without follow-up action being taken. Arguments by resisters of institutionalisation of human rights mechanisms point to having an ASEAN dialogue duplicates international human rights reporting requirements such as the Universal Periodic Review mechanism. Countering this, some have said that if ASEAN governments can be at the international fora, why not back home in the region?

Second, the voluntary disclosure process of the AHRD should be respected but still viewed with circumspect. ASEAN states are comfortable sharing information if they are not compelled to. This exercise also acknowledges that we can talk about other governments’ track records on human rights without violating the non-interference principle. This position should be cherished, and diplomatic practices such as the AHRD foreclose future arguments by governments that we cannot discuss their human rights challenges and problems. Nevertheless, keeping a fluid structure may allow a ‘free-for-all’. Yet, human rights reporting should mean something; not just anything that can be conveyed should be conveyed, even if it is unrelated to human rights. As such, the possibility of having guidelines to enhance the effectiveness of the AHRD should be considered. Given that the audience at the AHRD is composed of a larger group of stakeholders, the AHRD should aim for a higher reporting standard than what is currently practised at AICHR meetings under the “Recent Developments in ASEAN” agenda item. 

This is our third point: transparency and accountability in human rights implementation can no longer be elusive targets for ASEAN. Not only must the AHRD provide a platform for civil society organisations representing groups in vulnerable situations to raise their grievances, but responses to the matters raised should be forthcoming. The diversity of views will enrich the dialogue and provide a standard that other regional organizations across the globe can emulate. Given how many impacted communities mention the inability or unwillingness of their government officials in charge of human rights to meet with them, the dialogue opportunity presents itself for an in-person exchange of views. Stopping short of a protection mandate that gives the power to the AICHR to adjudicate cases, this is the closest human rights cases can be brought to the table to be discussed in a comfortable, frank, and constructive manner. State officials can share actions taken to address the cases, if any. Monitoring such cases and remedial measures can form part of the AHRD mechanism.

As an overarching Charter body, the AICHR is considered the region's human rights forerunner. The declaration continues the slow but incremental growth of the human rights platforms in ASEAN. Naturally, some will be pessimistic about the AHRD’s effectiveness but much will depend on the drivers of the dialogue mechanism and the support required to make it work. 

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Umavathni Vathanaganthan has experience and expertise as human rights researcher. She has been working as the Collective Operating Officer (COO) at the Collective of Applied Law and Legal Realism (CALR) for three years. She is currently the assistant to the Malaysian Representative to the AICHR (ASEAN Intergovernmental Commission on Human Rights).

Edmund Bon was recently re-appointed by the Government of Malaysia as the Representative of Malaysia to the ASEAN Intergovernmental Commission on Human Rights (AICHR) for the term of 2024-2026. He served his first term as the Representative of Malaysia from 2016 to 2018. Edmund is also a practising lawyer in Malaysia for more than 25 years. He co-founded AmerBON, Advocates and two non-profit organisations, Malaysian Centre for Constitutionalism & Human Rights (MCCHR) and Collective of Applied Law & Legal Realism (CALR).

Disclaimer: This published work was prepared with the support of the Heinrich Böll Stiftung. The views and analysis contained in the work are those of the author and do not necessarily represent the views of the foundation. The author is responsible for any liability claims against copyright breaches of graphics, photograph, images, audio, and text used.