Introduction
Southeast Asia in the early twenty-first century appeared to be shying away from liberal democracy, the rule of law and attendant rights (Gomez and Ramcharan 2014). After impressive transitions across the region towards liberal rights-based governance enshrined in the ASEAN Charter of 2007, human rights appeared to be in regression as authoritarian governance surged.
A realist order hung over the region as seemingly progressive states appeared to be snubbing the ASEAN Charter. The founders of realism had warned that ethics in the relations between states would give way to perceived vital national interests (Morgenthau and Thompson 1948). Indeed, amidst global power transitions centred on the Asia-Pacific, the unending menace of international terrorism and the allure of global economic integration, upholding human rights norms appeared to be on the back-burner, though they could not be ignored altogether, hence the creation of an ASEAN peer-review mechanism that serves more as a firewall mechanism to protect member states and regional economic interests.
In this context, could the liberal institutionalist vision hold sway as advanced by some scholars? (Keohane and Martin 1995) The role of the United Nations and of regional organizations in the diffusion and protection of human rights is well treated in human rights literature (Steiner et al. 2008). Could ASEANâs regional mechanism, the Intergovernmental Commission on Human Rights, influence the behaviour of its members and hold states accountable to the standards they have adopted ultimately serving to protect human rights?
To date, while the creation of the ASEAN Intergovernmental Human Rights Commission on Human Rights (AICHR) is a welcome development that serves to enhance (secretive) rights communication between members, it has not publicly demonstrated such a capacity and it has focused largely on the promotion of human rights. A key problem afflicting this mechanism is the appointment by a majority of the governments of âstate-connectedâ individuals as AICHR representatives, which impedes real independence. Deeper research into the impact on norms diffusion within the AICHR peer-review process and its impact on âreluctantâ human rights norms takers is in order.
ASEANâs historic diplomacy of accommodation (Antolik 1990) or the vaunted âASEAN wayâ is another avenue for the diffusion of human rights norms in line with constructivist arguments. It has been argued that the states of the region socialized each other into a common understanding of their common security concerns and thus produced a âsecurity communityâ around the principle of non-interference (Acharya 2001). Human rights norms diffusion and ultimately the protection of human rights may yet be achieved in this way as has been argued (Finnemore and Sikkink 1998; Risse et al. 1999). After all, despite deep divisions on the issue, ASEAN states compromised sufficiently to create a regional human rights mechanism as called for by the Charter of 2007. However, this was done more for appeasing the international community as opposed to a genuine internal regard within the region to adhere to human rights principles.
As a result, the regional institution shows no signs of being able to influence the human rights policies and practices of its members. In 2017, 50 years after its creation and 10 years after the adoption of the ASEAN Charter, one of the worldâs most successful regional organizations struggles to live up to its new normsâgood governance, democracy and human rights for its peoples. While it has successfully guarded over the national security of its members and their ruling elites and sought to integrate the ten economies to cater for increased business productivity, it has thus far struggled to safeguard the universally recognized rights of its peoples. Instead, universal human rights standards, consented to by ASEAN in its own regional declaration of human rights, are flouted as many members are not party to the core international treaties on human rights and adopt contrary policies and practices. While electoral democracy has advanced in form regionally in some countries, the protection of universal human rights and the rule of law appear to be regressing on the ground.
Given the challenges of the ASEAN regional human rights mechanism, can the Universal Periodic Review (UPR) fill this void? The contributions are premised on the argument that the UPR, through its multi-stakeholder engagementâSoutheast Asian states, international institutions and global and local civil societyâconstitutes a critical regional norms diffusion and protection mechanism. To date, states have fulfilled their reporting duties under the UPR to the Human Rights Council (HRC), and the UPR âdialogueâ process is one in which Southeast Asian members appear to be comfortable engaging.
Unlike in AICHR, civil society actors are present at the UPR to hold up a mirror to their respective governments. The contributions of civil society in norms diffusion and in the protection of human rights are well documented (Korey 2001). In Southeast Asia, both at the regional and at the national level, if civil society can formally play a role in holding states accountable on human rights issues, perhaps it can help states to internalize human rights norms as part of the identity of states, as advanced by constructivist theorists. Hence continued evidence-based research on the UPR, regional mechanism and national human rights institutions (NHRIs) can help track the potential of civil society contributions to human rights advocacy in Southeast Asia.
The Universal Periodic Review
The Universal Periodic Review (UPR) of the United Nationâs Human Rights Council was created in 2006. The UPR is one of the mechanisms that helps the Human Rights Council (HRC) to perform its duties, together with the Special Procedure, the Complaint Mechanism and the Human Rights Council Advisory Committee (UN Human Rights Council 2017).
The HRC was set up as a subsidiary body of the General Assembly of the United Nations (UN General Assembly 2006) to replace the Human Rights Commission which was criticized for becoming highly politicized and confrontational. The new HRC comprises 47 member states and is directly responsible to the General Assembly of the UN and is serviced by the Office of the High Commissioner for Human Rights (OHCHR). Its overall objective is to âaddress human rights violations and make recommendations on themâ (OHCHR 2017a).
The UPR is a mechanism established by the HRC, which aims to better the human rights record in each of the 193 United Nations (UN) member states by reviewing their human rights records every four and a half years. The OHCHR notes that the UPR âprovides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligationsâ (OHCHR 2017b). The HRC Resolution 5/1 of 18 June 2007 stated, inter alia, a key objective of the UPR process: âThe improvement of the human rights situation on the ground.â
Thus, the UPR is as an important component of the new HRC to boost the profile of human rights and to establish norms of conduct to improve these rights via a feedback mechanism. It is a significant innovation that is based on equal treatment for all states. It provides an opportunity for all states to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. States are encouraged to prepare the information they submit through a broad consultation process at the national level with all relevant stakeholders. The UPR also aims to provide technical assistance to states and enhance their capacity to deal effectively with human rights challenges and to share best practices in the field of human rights among states and other stakeholders. By design, this state-driven UPR mechanism provides a unique form for all stakeholders to examine, criticize, support and suggest the promotion and protection of human rights on the ground. In short, it is designed to be a tool for states to use to measure themselves against other states and to improve their human rights performance. However, the government has the option to do as it pleases and often national interests prevail over its international human rights obligations in the event that the two clash.
The UPR was established by the UN General Assembly (UNGA) in resolution 60/251. The resolution mandated the UNHRC to âundertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all Statesâ. There are three cycles of the UPR mechanism: preparation, review and implementation and follow-up. There are three key documents for the UPR process at the level of preparation. First is the national report, which is prepared by the state under review (SuR). Second is the Office of the United Nations High Commissioner for Human Rights (OHCHR) report that is compiled by the OHCHR based on information contained in reports of treaty bodies, special procedures and other UN documents. Third is the stakeholdersâ report that is compiled by the OHCHR based on NHRI and CSO submissions. For the review stage, it involves interactive dialogue and adoption of an outcome report. During the interactive dialogue, the SuR presents its national report, and UN member states pose questions, comment and provide recommendations to SuR. The latter then may choose to accept, reject or comment on the recommendations. That leads to the summary of proceedings, recommendations and comments adopted in an outcome report. Thereafter, the most important stage is the implementation and follow-up. At this stage, the government is to implement accepted recommendations. Implementation of rejected recommendations is also encouraged. For monitoring and advocacy, NHRI and CSOs may monitor and push for the implementation of recommendations.
The UPR held its first session from 7 to 18 April 2008. By 2016, the UPR has completed two cycles of examinations of state reports on human rights situations in member states of the UN, including Southeast Asian countries. Even though the UPR is a state-centre mechanism, it provided CSOs a unique opportunity to engage with human rights as the mechanism had a built-in framework for CSO participation. In Southeast Asia, the UPR has become a focal point for CSOs, governments, intergovernmental organizations and donors through which to articulate and highlight human rights issues. To support civil society engagement with the UPR process, numerous consultations and trainings have been held to facilitate submissions to the UPR. For intergovernmental organizations, donors, international NGOs, the focus has been very much on facilitating the process of participation and collaboration in drafting and submitting reports. Governments in the region have also met with their local CSOs to demonstrate engagement with civil society. But what has been the impact of CSOsâ advocacy in the UPR in terms of implementation? Ultimately, has it helped in enhancing human rights protection in the region? To answer these questions, this book identifies and analyses civil society engagement in the UPR of Southeast Asian countries over the past two cycles. In particular, the book seeks to track the types of civil society organizations (CSOs) engaging with the UPR, trends in CSO submissions to the UPR process, dominant issues raised in the CSO submissions and the impact of CSO submission on furthering human rights protection under the UPR.
The editors begin by outlining the Asia Centre mapping of civil society trends and themes during the UPR of Southeast Asian countries. This is followed by an introduction of the chapters in the book.
Civil Society Trends and Themes in the UPR of Southeast Asia
Historically, CSOs have been hailed as a bulwark to the protection of human rights in other parts of the world. In Southeast Asia, thus far, CSOs do not have any institutionalized engagement with regional or national human rights mechanisms. With regard to AICHR, civil society lobbied over 20 years for its formation but has not been granted, thus far, any formal role in this mechanism (Gomez and Ramcharan 2013). With reference to the NHRIs in the six countries that have established one, civil society has not been able to effectively influence the limited work of these bodies (Gomez and Ramcharan 2016). Yet governments in Southeast Asia speak of engagement with civil society on matters related to regional and national human rights mechanisms and point to meetings with civil society members as evidence of engagement. It is not clear what benefits these interactions have yielded, except to provide states opportunity to demonstrate their âengagementâ with civil society. But have these engagements been effective for human rights protection in Southeast Asia? With national human rights institutions (NHRIs) struggling to enhance their effectiveness in constraining domestic political contexts and with the ASEAN Intergovernmental Commission on Human Rights (AICHR) committed to a secretive, peer-review process and a promotional approach, can civil society organizations (CSOs) advance the protection of human rights across the region by using other platforms? In the contemporary human rights landscape in Southeast Asia, where illiberal democracy holds sway, what impact has the Universal Periodic Review (UPR) had on the protection of human rights in the region?
Asia Centre undertook a review of the UPR process in early 2016 following input from academia, civil society, donors, international NGOs and intergovernmental organizations alike, on the lack of evidence-based research into the impact of the UPR on human rights in Southeast Asia. The macro level analysis involved the mapping of trends in CSO participation, nature of the submissions (individual or joint) and a thematic analysis of the key issues raised in the UPR over two cycles. Cycle 1 occurred between 2008 and 2011, while cycle 2 took place between 2012 and 2016. The review took place over a six-month period from January to June 2016 and involved a review of the national report from the state under review, compilation on UN information and summary of stakeholder information prepared by the Office of the High Commissioner for Human Rights, the report of the Working Group ...