Keynote Address to the U.S.-ASEAN Symposium on the ASEAN Human Rights Declaration

Daniel Baer
Deputy Assistant Secretary, Bureau of Democracy, Human Rights, and Labor
Washington, DC
November 28, 2012

Sixty-four years ago, against the backdrop of the horrible atrocities committed during World War II, a group of dedicated individuals stood together to lay out a framework for the acknowledgement and protection of human rights around the world. Through this group’s earnest commitment, the world acknowledged for all time that certain rights are manifest, held by all individuals throughout the world, irrespective of who they are or where they live.

The work they produced became the Universal Declaration of Human Rights, adopted on December 10, 1948. Present at the creation, Burma, the Philippines, and Thailand supported the document in the General Assembly. The UDHR became the baseline expression of rights to which all persons are entitled – the standard against which all other efforts to define human rights have been, and will continue to be, judged.

Many regional institutions have since adopted their own regional human rights instruments, which reinforce the international framework provided by the UDHR and the International Covenant on Civil and Political Rights. ASEAN established the ASEAN Intergovernmental Commission on Human Rights in 2009 to ensure the cause of human rights occupied its rightful place front and center of ASEAN’s community-building agenda. The AICHR’s establishment is enshrined in the ASEAN Charter and supports important ASEAN community principles elaborated in Article 2, namely respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice. In creating AICHR, ASEAN’s member states initiated a process by which they potentially could reaffirm and strengthen their commitments to universal rights..

Ten days ago, on November 18, ASEAN member states came together and adopted an ASEAN Human Rights Declaration that by its own terms, “affirms all the civil and political rights” and the “economic social and cultural rights” in the UDHR. However, many of the ASEAN Declaration’s core principles include language that could be interpreted as undermining the universal rights and freedoms set forth in the UDHR and International Bill of Rights – concerns that many others, including Navi Pillay, the UN High Commissioner for Human Rights, and regional and international nongovernmental organizations, have echoed. As the Department of State’s Spokesperson, Victoria Nuland, outlined in a statement on November 20, the United States is concerned that some articles in ASEAN’s Declaration advance caveats based on cultural relativism, subordination of universal principles to domestic law, novel or unique limitations to universal rights, and group veto potential over individually-held rights, and that such caveats are incompatible with both the letter and spirit of the UDHR.

Our longstanding partnership with ASEAN and its members, as well as our aspirations for the organization, are at the heart of our deep disappointment and concern. Central to our partnership with the region is a shared interest in seeing Southeast Asia reach its potential as a leading voice in the international community. However, ASEAN can only reach its full potential as an organization if it, and its constituent member states, commit to observing the established universal human rights and fundamental freedoms that allow the people of the ASEAN region to think and act freely; to engage in open debate; and to live up to the noble principles of the ASEAN Charter.

Let me outline the heart of our concerns.

Cultural Relativism

The Declaration, as adopted ten days ago, subordinates respect for fundamental freedoms to an assumed cultural context. Yet universal human rights are just that – universal. These rights are not Western, or Eastern. These rights are not subject to regional and national limitation. These rights do not bear in mind political, economic, legal, social, cultural, historical, or religious backgrounds. Viewing human rights through a lens of cultural relativism takes those principles out of focus. When these rights mean different things to different people, to different societies, those freedoms are abridged. An individual’s right to stand up and peacefully demand change in her government is as applicable in Bangkok as in Bratislava, or Brasilia. The accident of her birth in Chiang Mai does not, cannot, mean she is less entitled to call peacefully for change than the accident of her birth in Chicago. An Asian is entitled to the same right to change his religion, to be accorded due process, and to seek, receive, and impart information as an American or an Argentine.

Domestic Laws Versus Universal Rights

Similarly, universal human rights are not subordinate to domestic law. In several instances the ASEAN Declaration outlines rights, only to suggest that the universal human rights memorialized apply only to the extent afforded by local law. The right guaranteeing the free expression of the will of the electors is not subject in the UDHR to accord with national law. Likewise citizens have the right to participate in the government of their country, period. National law is not a caveat to this universal right. Subordinating universal human rights to domestic law is a departure from more than 50 years of established international practice of human rights, going back to the UN Declaration.

Novel Limits to Rights

The ASEAN Declaration also seeks to introduce a patchwork of illegitimate limitations on universal rights. Some rights, it claims, must be “balanced” against an “individual’s duties.” Not only does this evidence a fundamental misunderstanding of the premises of universal rights possessed by each person, by imposing arbitrary limitations, the Declaration is not truly reflective of universal human rights, but rather a mirage of them. Who decides? Who decides the appropriate balance? Who decides which “duties” and when? Is a simple Facebook posting disagreeing with a country’s foreign policy subject to a balancing test? This abridgement undermines the very values that the ASEAN Declaration, in affirming its commitment to international human rights instruments, purports to uphold.

Similarly, the right to freedom of thought, conscience, and religion is cited, but then is subject to the caveat that “All forms of intolerance, discrimination, and incitement of hatred based on religion and beliefs shall be eliminated.” This language undermines freedom of expression and of religion by justifying overly broad bans on speech. Religious beliefs are deeply held and deeply personal. Offensive language can be difficult to accept. But that is part of the core of living in a free society.

Individual Rights Subject to Group Veto

The rights enshrined in the Universal Declaration are individual rights. Similar to limitations discussed earlier, these rights apply universally and are not subject to the collective expression of a group. Suggesting that “every person” and the “peoples” of ASEAN have the “right to enjoy peace . . .” creates tension between the ASEAN Declaration and the foundational principle in the UN International Bill of Rights. Laying out that rights can be held both by “persons” and by “peoples” opens the door to notions that the group can trump or veto the rights of individuals. An individual’s right to free expression could be seen by a group as threatening that group’s “right to enjoy peace,” as outlined in ASEAN’s Declaration (but not defined in the International Bill of Rights). Who decides? The UN documents make it clear – rights are individually held. The ASEAN Declaration introduces a worrying counter to recognized individual rights.

The Way Forward

These shortcomings undermine the work that countless advocates throughout Southeast Asia have done to further the respect for and protection of fundamental freedoms. ASEAN countries are home to some of the most inspiring, impressive, home-grown human rights NGOs in the world. They deserve a strong declaration. As adopted, this document will not be taken as a serious expression of ASEAN’s intentions to boost its efforts to promote and protect human rights. ASEAN, as a collection of strong, confident governments that have nothing to fear from allowing their citizens to exercise freely their fundamental freedoms and human rights, can and must do better.

We applaud ASEAN’s interest in elevating the conversation about human rights. We are pleased its governments acknowledge the common interest they – and we –

share, in a commitment to the promotion and protection of human rights. The Declaration and the ASEAN statement of adoption call for the Declaration to be implemented consistent with the Universal Declaration on Human Rights and international human rights agreements. Therefore, ASEAN has an opportunity to take steps to revise the Declaration through a transparent process that includes more active and reciprocal engagement with civil society and that brings the document in line with the provisions and protections in the UDHR and ICCPR. We have been and will continue to be a steadfast partner with ASEAN and as such, will work together with the organization and its member governments, and people, to help them take the steps necessary to fully endorse, in word and deed, the principles of international human rights instruments.

I look forward to being a part of that conversation and with that, look forward to your questions.