Yogyakarta, 30th September 2019
Written by Robbaita Zahra
Yogyakarta – On Friday, 27th of September 2019, ASEAN Studies Center Universitas Gadjah Mada held Bincang ASEAN with the theme of “Challenges for Civil Society Advocacy on Human Rights in the Next Decade”, bringing Ms. Yuyun Wahyuningrum, the Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR) as the speaker.
The discussion started with the elaboration of human rights regime analysis by Donnelly, which consists of: Declaratory, Promotional, Implementation, and Enforcement. Declaratory regime is when a state declare whether or not it acknowledges human rights. Promotional regime refers to the engagement of states in activities such as exchange of information, technical assistance, and other processes where human rights are discussed. A state can be said to be in implementation regime if it has concluded legally binding documents on human rights. Enforcement is when a State has enforced human rights accordingly. Ms. Yuyun stated that Indonesia is currently in promotional regime going to implementation regime.
Further, the discussion continued with discussing international law. It is important to discuss international law when talking about human rights as it puts state as the main actor of human rights (produce, enforce, monitor). In this context, State has 2 identities: as the offender and protector of human rights. The balance between these identities have to be seen to determine whether or not a State is respecting human rights. However, this dual identity makes the relation between State and international human rights law complicated.
Moving to the discussion about the context and regionalism in ASEAN. Ms. Yuyun explained that ASEAN countries, which previously only discussed about politics and economy, are forced to discuss about human rights within this new regionalism context. There are 3 reasons of State creating regional human rights mechanisms: 1) As the expression of modernity; 2) Compared to international mechanism, regional mechanism is more likely to discuss issues within Southeast Asia; and 3) As the intermediary between national and international system.
After the Universal Declaration of Human Rights, all countries in the world domesticate human rights into their constitutions, including ASEAN countries. Despite this fact, human rights are not included in the establishment of ASEAN. The reasoning behind this is because countries in Southeast Asia do not want to be disturbed by the competition that is happening within the Cold War. However, this does not mean that human rights are not discussed at all in ASEAN. It has to be noted that ASEAN is home for diversities, different from for example EU – which is supranational. Therefore, in talking about human rights, ASEAN has to be careful because it cannot replace the state’s role as the protector of human rights.
With regard to ASEAN human rights system, one of the main part of this is ASEAN Intergovernmental Commission on Human Rights (AICHR), which has the function to protect and promote human rights. Ms. Yuyun then proceed to discuss the challenges for civil society. Regional human rights framework in ASEAN is the product of the combination between ASEAN Way, international human rights law, and national interest of ASEAN member states. With this context in mind, the challenges for civil society are: 1) Lack of independency of the AICHR Representatives; 2) Lack of transparency of AICHR’s work; 3) Lack of interest of AICHR Representatives to engage with CSOs; 4) Lack of recognition from AICHR on the role of CSOs/Stakeholders; 5) Lack of member states’ political will to integrate human rights fully in ASEAN regionalism project; 5) Lack of ability and capacity to protect human rights; and 6) Lack of people awareness about its role.
Despite these challenges, AICHR has obtained several achievements during Ms. Yuyun’s period, such as the adoption of ‘Minus X Formula’, meaning that which countries are ready to participate in any scheme, they can go ahead while members who are not ready could join in later. This has opened several discussions which are not being able to be held before due to the difficulty to reach consensus from all member states. Another achievement is the agreement to conclude ‘Recommendation on the Implementation of ASEAN Human Rights Declaration’, successful briefing on Rakhine Crisis, and other various achievements. However, none of these achievements are coming from the request of the people, which is aiming at the protection of human rights. Nonetheless, this can be the starting point of doing so.
Lastly, the discussion ended with a question and answer session. Within this session, Ms. Yuyun explained that the deficit of democracy within countries in Southeast Asia has influenced the development and the dynamic of AICHR. She also explained that knowledge regarding the dynamic of culture and tradition are essential in ASEAN. However, many institutions are not aware of this fact. Therefore, AICHR tries to respond with this by establishing practice, concluding internal documents as future references, and engaging with civil society and students in various countries in ASEAN. This Bincang ASEAN is one of the manifestations of this practice.