Non-Citizen Rights in ASEAN

Abstract

As an ancien régime, East Asia has been considered a region that bucks the trend of the so-called ‘humanization of international law’, where the primacy of the interests of individual has become the norm. As such, the Association of Southeast Asian Nations (ASEAN), the only institutionalized transnational body in the region, not only embodies a political statement against the Western backed liberal order, but also harkens back to the decolonization era, summoning Bandung’s post-colonial ideals where the state is the only and, thus, ultimate expression in international affairs through the espousal of equality and non-interference paramountcy. This article argues that this post-colonial arrangement has failed to serve its supposed ultimate beneficiary, that is, subaltern groups such as the persecuted Rohingya. The Rohingya have been denied their human rights even by their post-colonial fellows. To bring sobriety into the fold, the article uses the ingenuity of the Malaysian Human Rights Commission Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM), as a node to cross-cultural legitimation, as a call for an ‘indigenized pragmatism’ embracing universal human rights that transcend the boundaries of nationalism-based political discourse rather than refugee rights due to their evocation of foreignness.

Keywords

Asia communalism Eastern values human rights international law refugee law regionalism Third World legal theories

Introduction

In addition to its reputation of playing a ‘conservatizing role’ in the global stage (Ginsburg, 2010; Chesterman, 2016), the Association of Southeast Asian Nations (ASEAN) is indisputably perceived to be an idiosyncratic entity. The predominant standard scholarship on the region continues to emphasize the exceptional nature of ASEAN, suggesting that it is too culturally and economically diverse to unite into ‘an ever-closer union’, as exists in Europe (Chia and Plummer, 2015; Tan, 2011). For a start, the elevation of musyawarah – a paternalistic mode of feudal Javanese kampung (village) governance (Bowen, 1986; Iskandar, 2016b; Magnis-Suseno, 1996) – to the regional level as the ‘ASEAN Way’ has significantly paralysed ASEAN’s effectiveness (Acharya, 2001: 65). To make matters worse, there is a high level of distrust among ASEAN member states (Beckman et al., 2016: 12–16). Member states have settled their legal disputes elsewhere; for example, Thailand and the Philippines opted for the World Trade Organization’s dispute resolution procedures despite the availability of the ASEAN Enhanced Dispute Settlement. More troubling still, as Sim (2014: 315) observes, ASEAN members ‘demonstrate a lack of confidence in invoking and applying ASEAN agreements as their underlying legal authorization’.

All things considered, ASEAN as a regionalization project has managed to move up the ladder. Seemingly, the implied need for a more formalized, institutionalized and rule-based organization has been crystallized through the introduction of the ASEAN Charter, espousing the idea of the ASEAN Economic Community (AEC), seen to mimic a European Union (EU) style single-market (Hermansyah, Munandar and Kurniawan, 2007). Despite its flaws, this progress is something worth considering since it manifestly reveals, albeit modestly, a longing for a deeper regionalization. Against this background, this article examines how this recent development may pave the way to more comprehensive human rights protection. To illustrate and advance this argument, I use the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia Malaysia [SUHAKAM]), a governmental body which was established under the 1999 Malaysian Act no. 597 on the Human Rights Commission, as a model for the ASEAN Intergovernmental Commission on Human Rights (AICHR). AICHR is ASEAN’s main human rights organ that seeks to promote the protection of human rights of non-citizens. That said, the exemplary nature of SUHAKAM goes beyond its status as a Malaysian project, because it has managed to become one of the world’s most respected national human rights institutions (Witting, 2003). More importantly, SUHAKAM may best be viewed as a ‘home-grown’ experiment that triumphantly embedded human rights in a strong social conservative regional milieu (Chang et al., 2014) through which I am hopeful that its indigeneity may enhance the ‘cross-cultural legitimacy’ of non-citizens rights (An-Na’im, 1995).

This article contributes to the emerging trend towards an ever needed ‘rule-based ASEAN’ and away from the feudalistic ‘personal relationship-based’ system of organization in the region (Davidson, 2004). To be specific, this article posits that the ASEAN Charter has provided the much-needed impetus for the AICHR to take on a more active role in its promotion and protection of human rights in the region. In particular, this article presses a case for the basic rights of non-citizens, i.e., refugees, migrants, stateless persons and others of that ilk. The imperative of this argument, as it stands, is that the region’s unrelenting practice in maintaining the distinction of legal versus illegal aliens in the region’s major states should be seen as a deep seated disregard for the rights of non-citizens which arguably sway the regional human rights discourse based on a flagrantly misleading assumption that aliens are better off. In other words, this remnant of anti-colonial nationalism that animates the first generation of nationalist politicians, such as Sukarno’s Indonesia, must be updated as the recent Rohingya crisis confirms (Sukarno, 1970). As a result, the predominant activism has willfully disengaged itself from the international concept of human rights and embraced a ‘nationalist’ conception that has eschewed non-citizens’ entitlement to human rights in the domestic legal systems. Presumably, the exclusion of non-citizens within the purview of domestic human rights laws has potently compounded the region’s already notorious record on administering refugees’ rights (Davies, 2006a; 2006b). Be that as it may, it is still worth it to be accepted as part of the legitimate legal vocabulary in the region, the current advocacy discourse has to be couched in the framework of human rights law rather than refugee law since the claim for ‘human rights’ is better accepted in both regional and national political discourses.

To particularize further, this article uses the ongoing plight of the Rohingya, who have been categorically rejected by the well-established multiple identity-based claims that in normalcy served as a standard bearer in the politics of standing (locus standi) for the claim (entitlement) of humanitarian responses from the post-colonial states. In this case, it is no longer sufficient to rely on pressure from the international (traditionally Western) groups alone for the region to sensibly respond to the humanitarian concerns; rather, it desperately begs for indigenous voices which ultimately boost the legitimacy of the politics of rights entitlement of subaltern groups against disinterested post-colonial states. As the evolving narrative has shown, not only did the impacted Malaysia, Indonesia and Thailand inhumanely lack of interest, but more surprisingly the supposedly oft-disturbed Bangladesh, as the Rohingya’s metropole, instead opts for a dehumanizing ‘solution’ by ‘relocating’ the Rohingya to ‘an inhabitable land mass offshore’ (Goldberg, 2014: n.p.). Much to everyone’s dismay, even the Nobel laureate Aung San Suu Kyi has time and again maintained a ‘tragic silence’ for what might be yet another genocide of this century (Wamsley, 2017). There have been no serious coordinated efforts from the region’s non-state actors to demand humane solution. It is reasonable to suspect that the prevailing regional solidarity is somewhat bound to their respective narrow sense of national loyalties. In this regard, it sustains suspicion among each the actors which weaken their critical stance towards the hegemonic roles of statism in regional politics. Suffice it to say, the Rohingya case is emblematic of the region’s reluctance to embrace a broader entitlement of fundamental rights beyond citizenship; but, more importantly, it provides an opportunity to reinvigorate the concept of ‘subalternity’ that goes beyond the physical entrenchment of the territorial nation-state. Bluntly put, it suggests that even the post-colonial arrangement that is based on a set of indigenous values, and by definition a correction to the Western origin liberal international order, is undoubtedly no less inimical to the interest of the ‘Third World’ subalterns, such as the Rohingya.

It is fair to suspect that a glaring disengagement of non-citizens’ rights among the region’s non-state actors is a ‘practical reference’ and strongly rooted in the many mainstream theoretical anti-colonial works, notably the so-called Third World Approach to International Law (TWAIL) that set its heart on achieving the statist ideals of the 1955 Bandung Conference (Eslava et al., 2017). As a result, it inadvertently lauded the inviolability of the individual state’s sovereignty as one of its main gospels in its crusade against the intrusion of the neo-liberal-imperialism agenda. More to the point, the regional activism’s dogmatic espousal of anti-colonial nationalism that has led to their wishy-washy response to the dehumanization of the Rohingya exposes the theoretical limitations that contradict the progressivism (that supposed innate feature of the critical approaches to which TWAIL claims to aspire). Through this lens, as the ultimate beneficiary of the intellectual movement of anti-colonialism, the plight of the Rohingya provides an opportunity to resuscitate the debate on what post-colonialism means today. As will be argued below, the post-colonial arrangement that is ardently advanced by the region’s academics is no different than beating a dead horse Westphalian statist model.

Thus, on a theoretical level, this article is intended to make a modest contribution to the growing body of post-colonial international law scholarship by providing a critical inward turn that speaks in the interest of subaltern groups in a globalized world, such as the Rohingya, who are not neatly categorized in the black-and-white dichotomy of conventional post-colonial analysis. This in turn mirrored against the superficial claims made by post-colonial Third World states that deny the basic human rights have and security (Otto, 1996). All the more so because ASEAN’ continued focus on the movement of high-skilled migrants (Iskandar and Piper, 2016) where even civil society in the region shows reluctant support for ‘more inclusive’ freedom of movement in the region such as those one can find in international human rights case law. This situation is worth examining in order to understand what has happened to the project of ASEAN (2016) as ‘one vision, one identity [and] one community’. The regional conservative discourse of sovereignty (Haslam and Mansell, 2005) and claims based on cultural peculiarities, such as the ASEAN way, are nothing but communitarian platitudes that reveal the narrow-mindedness of the post-colonial states’ elite-driven discourse. By critically assessing such discourses, this article hopes to make both theoretical and practical contributions to Third World legal scholarship and advocacy on responding to human rights abuses perpetrated in a variety of post-colonial settings.

The argument in this article is structured as follows. The next section argues that the post-colonial human rights scholarship needs to adopt a two-pronged strategy, being critical not only towards the opressive dimensions of the still looming large hegemonic clout of (Western) colonially imposed of the power structure in contemporary international politics, but also towards the predatory nature of Third World states themselves, particularly the cunning “native” elites that have benefited from colonially imposed power relations. The third section provides a critical descriptive account of ASEAN’s engagement with the human rights of non-citizens in which Southeast Asia’s post-colonial context and the preoccupation with their own narrowly defined state-centred agenda without regard to basic human values, especially those of the groups such as the Rohingya is analyzed. While keeping in mind the harsh nature of the region’s realpolitik but at the same time being optimistic, the fourth section insists that there is hope for the region to be more responsive, albeit in a modest manner, to the unfortunate situation faced by non-citizens, such as refugees and unauthorized low-skilled migrants. Meaning, it contends that the AICHR lacks the necessary means to be more responsive to the population needs, but it also fails to recognize the potential to deliver more. The next section offers some proposals to address the most pressing issues in the region regarding the rights of transnationalized subaltern groups in the globalized South.

A Post-Colonial Inward Turn Is Justified

Despite the depressing human rights reality, the practical aspects of the implementation of human rights at regional and national levels have been overlooked by the founding works in the so-called TWAIL (Anghie and Chimni, 2003; Mutua, 2000). Scholarly work on human rights has been largely devoted to critically challenge and disturb Western hegemony and the imposition of the Western conception of human rights (Chimni, 2006; Gathii, 2000; Kapur, 2006; Mutua, 2002). That said, the dominant post-colonial scholarship on human rights law has largely been highly abstract and theoretical and impractical (Kapur, 2006; Mutua, 2001). It is understandable, therefore, that Kapur (2013: 5), in investigating the ‘Delhi rape’ as a domestic legal case in the post-colonial India, focuses her analysis on ‘the dispersed operations of power in the arena of gender in the context of international law’. Even those who claim to deal with ‘the everyday life of international law’ disengage from the real-life issues of the subaltern individuals and groups and exclusively focus on the need to ‘transcend concerns about the conditions of life in the Global South’ (Eslava and Pahuja, 2012: 4). For that matter, it is this article’s contention that post-colonial literature is dominated by an ‘outward-oriented’ perspective and therefore disregards the situation at the domestic level.

Another important feature in post-colonial scholarship on human rights is that it tends to be excessively historical (Anghie, 2005). To some degree, this line of scholarship has confused and, therefore, failed to distinguish Third World people’s interests, on the one hand, and their rights vis-à-vis their abusive post-colonial states on the other (Kanwar, 2015; Pahuja, 2016). In effect, the post-colonial arguments for the cultural legitimacy of human rights in non-Western settings (An-Na’im, 2010; Mutua, 2001) are futile at best and counterproductive at worst in the context of defending the rights of Third World individuals against post-colonial state abuses, as in the case of the postcolonial world (Afshari, 1994; Iskandar, 2016b; Iskandar, 2017). This is not to say that there is no place for historical or theoretically informed and critical work. Rather, there should be a constructive engagement that results in a more practically oriented solution that speaks directly to the interest of Third World people facing abusive post-colonial states. In this regard, Roth (2000: 2057) rightfully observes that the reluctance of Third World legal scholars to accept ‘the more traditional brand of legal scholarship’ has made their efforts ‘politically dysfunctional’:

[Mainstream] ‘[c]ritical’ scholars frequently seem to imagine that, in struggling against the methodological norms of their disciplines, they are struggling against the very structure of the power relations that exploit and repress the poor and weak – the metaphor being, in their minds, somehow transubstantiated into reality. The result is, all too often, an illusory radicalism, rhetorically colorful but programmatically vacuous. The danger is that a fantasized radicalism will lead scholars to abandon the defense of the very devices that give the poor and weak a modicum of leverage, when defense of those devices is perhaps the only thing of practical value that scholars are in a position to contribute.

Considering that the post-colonial approach has also acknowledged the fact that ‘Third World states often act in ways counter to the interests of their people (Anghie and Chimni, 2003: 78), it is legitimate to take an ‘inward turn’ in Third World human rights scholarship in order ‘to transform international law from being a language of oppression to a language of emancipation’ (Anghie and Chimni, 2003: 79). Importantly, an ‘inward turn’ is perfectly aligned with ‘[t]he TWAIL perspective [which] is advanced by a group of scholars who share the common minimum aspiration of looking at the history, structure, and process of international law and institutions from the standpoint of the peoples of the Third World, in particular its poor and marginal sections’ (Chimni, 2007: 200).

It is within the rightful purview of postcolonial approaches that this article deliberately focuses on the fundamental rights of non-citizens to illustrate that even post-colonial Third World states treat ‘other’ Third World people as egregiously as the (European) Empire treated the ‘other’. In short, the critical nature of the post-colonial approach should be directed not only towards the West, but also to the local hegemons that all too often abuse ‘indigenous peculiarities’ as a guise to further their own personal and political schemes. Naturally, this must lead to another important implication: a call for Third World scholars to speak as legitimate representatives of the whole population rather than in the much narrower interest of a particular state or group. Furthermore, the Third World’s today problems are much too complex to be simplified as a binary fight against former colonial powers (Mutua, 2001; Okafor, 2008; Park, 2013). It is that Third World post-colonial states alone define what the interest of their populations are, making it all the more necessary for the post-colonial scholarship agenda to hold these states accountable. It is insufficient for post-colonial approaches to view the challenges through simplistic binary lenses that unwittingly shield the malignant role of the Third World states towards their populations that they supposedly represented. Concurrently, a practical turn in the context of human rights promotion of non-citizens at home would make an important contribution to the post-colonial approach of international law and human rights scholarship as the South-South migration is not only bigger than we think but, more importantly, it is the foremost vital venue for the the Global South vulnerables to access a better livelihood ( The Economist, 2016a). This would also encourage local scholars to focus on humanitarian needs and in the process provide the socio-cultural legitimacy of human rights for non-citizens in the Global South.

The Human Rights of Non-Citizens and ASEAN: A Critical Account

Conceptually speaking, even if such a thing as ‘Eastphalia’ exists a supposed alternate international order based on Eastern values (Ginsburg, 2010), it is nothing more than a resurrection of the dinosaur of now defunct Westphalian system. This means that the practice of contemporary post-colonial Asian states in international affairs is no more than an imitation of 17th-century European practices where the state is the foremost and only recognized entity in international affairs, which sidelines the voices of non-state actors. As a result, it has effectively muted, if not eliminated, the ‘humanizing tendencies’ that have been very influential in transforming international law (Meron, 2006). On a broader level, Asia is ‘a conservatizing player’ in a way that aims for a more closed-off model of cooperation (Ginsburg, 2010). It makes sense, therefore, that Asian states prefer an enhanced sovereignty model of regionalism where, in the words of a staff member in Indonesia’s cabinet secretariat, ASEAN is ‘[un]able to implement programs and achieve its objectives effectively’ (Brata, 2013).

Rather than a shared idealism, the establishment of ASEAN has emerged solely out of the collective fear that communism would spread in the region up to a point where one can argue that the prevailing tensions in the region have ‘manifested in near conflict and undeclared armed conflict situations’ (Beckman et al., 2016: 12). It is no surprise, therefore, that the ASEAN (Bangkok) Charter (ASEAN, 1967), the organization’s founding document, is primarily framed in a state-centred perspective in which ‘masculine vocabularies’ (Charlesworth, 1994; Charlesworth and Chinkin, 2000), such as ‘peace [and] stability’, take centre stage. The Charter is consciously based on the notion that ‘the cherished ideals of peace, freedom, social justice, and economic well-being are best attained by fostering good understanding, good neighbourliness, and meaningful cooperation among the countries of the region’ (ASEAN, 1967). In the light of this statist ‘consciousness’, it should be clear that the interests of state (government) should take precedence over the interests of populations or individuals. Nevertheless, ASEAN has managed to declare that ‘the AEC shall be the goal of regional integration by 2020’ (ASEAN, 2008: 5). The integration project, which culminated in the adoption of the ASEAN charter, is merely economic and does not extend to an EU-style political integration ( The Economist, 2016b). Despite the supposed liberating nature of freedom of movement language in the AEC, its ‘[mutual recognition arrangements] cover only eight professions, accounting for just 1.5% of ASEAN’s total workforce…even in these fields, other domestic regulations inhibit foreign workers…[it] do[es] not provide many incentives to encourage mobility among other skilled workers’ (Pruksacholavit, 2014: 474). Even worse, the much-lauded recent move to adopt the 2017 ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers is meant nothing but only signaling that the ASEAN has unashamedly continued to turn a blind eye to the undocumented migrants by excluding them from the entitlement to the regional regime of migrant human rights (ASEAN, 2017).

The ‘Singapore school’ has provided an academic rebuttal against stronger regionalism by emphasizing the diverse nature of Asian countries. To some extent, this ancien régime reasoning is framed in support of Asian values. For example, Thio (1999: 6), a controversial ‘human rights’ scholar, claims that

[w]hat binds ASEAN states is a shared pragmatism and consensual ethos in interstate relations, as well as a staunch adherence to the cardinal principle of non-intervention in the internal affairs of member states, enshrined in Article 2(c) of the 1976 Treaty of Amity and Cooperation in Southeast Asia.

This same argument has been reinforced by Tan (2011), who argues that ASEAN human rights mechanisms must be developed incrementally, and that, to have functioning human rights mechanisms, the level of development of all member states needs to be at a similar level. The good-neighbourliness argument, which asserts that non-interference is the overarching principle in the conduct of inter-state relationships, has also contributed to the disregard for the human rights of non-citizens at the domestic level.

For starters, one of the most problematic aspects of post-colonial Southeast Asian domestic legal systems is the common grouping of migrants into just two categories, namely ‘legal’ and ‘illegal’. This binary legal categorization has effectively deprived many refugees of internationally recognized rights. For instance, domestic laws in Indonesia, Malaysia and Thailand classify the Rohingya as no different from everyday ‘illegal’ migrants who come to make a living. This is despite the fact that the Rohingya are fleeing from ‘genocidal’ persecution in their origin country (The Economist, 2015; Stoakes, 2015), and that the United Nations proclaimed them to be one of the world’s most persecuted minority groups. Even worse, under the domestic laws of these three countries, ‘illegal’ migrants have no rights, including the right to have human rights. Again, while one can acknowledge that the three countries did take in Rohingya refugees, it is important to qualify this ‘gesture’, as there has been no real intention to provide resettlement opportunities for the Rohingya people in the host countries over the long term. The problem is these three countries perceive taking in the Rohingya as a matter of compassion and, perhaps, religious solidarity, as in the case of Indonesia and Malaysia, rather than as an acknowledgement as a matter of human rights (Chachavalpongpun, 2015; Yi, 2015a, 2015b). The strict application of the principle of non-interference coupled with the binary lenses of ‘legal’ and ‘illegal’ migration has legitimized the shooting of Rohingya on the grounds they are attempting to ‘illegally’ enter state jurisdiction, regardless of the fact that they are fleeing from persecution from their own government.

On a different yet related matter, ASEAN’s half-hearted approach to the human rights of non-citizens is evident in its deliberate exclusion of low-skilled migrants from its current human rights regime (Iskandar and Piper, 2016). A particularly disconcerting aspect of this exclusion is manifested in the 2007 non-binding ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, which exclusively addresses the human rights of high-skilled workers at the expense of the low-skilled workers (ASEAN, 2007; Kneebone, 2010). This failure to acknowledge the human rights of low-skilled migrants is both disturbing and confusing given the fact that labour migration throughout the ASEAN region is largely comprised of low-skilled migrants (many of them undocumented due to lack of avenues for legal migration) (ILO and ADB, 2014; Orbeta, 2013).

Just Do It, AICHR

Despite the seemingly negative picture of human rights reality in ASEAN, the organization has been receptive to the idea of the regionalization of human rights. Recent works on human rights in the ASEAN region have rejected the notion of cultural relativism, arguing that Asian states have started realizing that ‘moving towards human rights…can result in substantial material benefits from the international community…through development and other assistances’ (Linton, 2008: 443). Katsumata (2009: 621) claims that ASEAN’s individual member states ‘have “mimetically” been adopting the norm of human rights which is championed by the advanced industrialized democracies, with the intention of securing ASEAN’s identity as a legitimate institution in the community of modern states’. Moreover, Baik (2012: 9) observes that ‘[t]he growth of human rights movements in Asia has been relatively recent, but the concept of human rights has tremendous influence—much greater than is generally understood’. Thus, he predicts ‘that human rights should be a fundamental component of globalization, and that Asia will not – and should not – be an exception in the process’ (Baik, 2012: 9).

Southeast Asian post-colonial states have, however, gained some global notoriety for their wholesale rejection of international refugee law. At least two relevant scholarly explanations have been offered for why the rejection is so persistent among the countries in the region. For instance, Davies (2006a) claims that the limited involvement of Asian states in formulating the international regime of refugee law has been the determining factor in their rejection of it. Specifically, as ‘the drafting process did not admit an Asian understanding of the refugee problem’ (Davies, 2006a: 563), it is natural for Asian states to exclude themselves. Meanwhile, Muntarbhorn (1992) cites the strong tradition among the Asian states of refraining from interfering in their neighbours’ domestic issues as the major reason why the 1951 Refugee Convention and its 1967 Protocol are out of favour with these states.

This article, however, posits that the underlying exceptionalism that has been identified by Davies (2006a, 2006b) and Muntarbhorn (1992) as the main obstacle is no longer relevant in the light of recent developments. For starters, post-colonial Southeast Asian states, including the belligerent Myanmar, through ASEAN, have gone beyond ritualistic requirements regarding the promotion and protection of human rights. They have, for instance, promulgated a string of documents that reiterate their commitment to human rights, which may ultimately lead to the genuine acceptance of the AICHR. Since they have deliberately opted for human rights, that is, the fundamental rights of all, including non-citizens, it should be an encouraging sign for advocates of the rights of non-citizens, including refugees. Indeed, the AICHR, as ASEAN’s regional human rights body, is expected ‘to uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties’ (AICHR, 2009: 4). It might be fair, therefore, to tentatively conclude that the era of ASEAN exceptionalism, along with its prioritization of Asian values, is unwinding. To specify, the AICHR is ‘the home-grown’ human rights body with an autochthonous legitimacy to invoke the international standard of human rights that is applicable to citizens and non-citizens alike. Theoretically speaking, there exists an opportunity to create a more substantive approach to address the human rights of non-citizens at both the regional and national level within ASEAN (Baik, 2012; Linton, 2008; Katsumata, 2009).

Of course, the opportunity alone is not sufficient for a creation of a full-fledged human rights protection system. This opportunity can, however, serve as a decent starting point. Moreover, given that substantive institutional reform is highly unrealistic in the short term, the Commission is the only option on the table for now. In other words, if AICHR members interpreted the mandate creatively, at the very least, AICHR could influence region-wide jurisprudence towards human rights. Unfortunately, the record shows that the AICHR is widely seen as a deadbeat toothless tiger and has thus been deemed a ‘failed hope’ for the region (Mercado, 2009). Instead of coming up with creative solution to respond to deal with individual complaints, AICHR simply apathetically retorts that ‘individual complaints is [sic] not part of the power of AICHR. Not yet’ (Fonbuena, 2010). This failure is also plainly expressed in a report issued by the Solidarity for Asian People’s Advocacy Task Force on ASEAN and Human Rights (SAPA TFHAR):

[t]he high expectations and optimism generated by the AICHR’s establishment in 2009 have dissipated over the course of these three years…the AICHR has done little to adequately implement even its already paltry and weak mandate, let alone try to work creatively to exploit the Term of Reference use to the maximum so as to meaningfully defend human rights. (SAPA TFHAR, 2013: 1)

Regretfully, considering strong resistance prevails from member states, the civil society seems to engage in wishful thinking by asking for the impossible, that is, ‘political and financial support from ASEAN member states’ (Wahyuningrum, 2014). Even Indonesia, which is a self-appointed leader of democracies in the Global South, through its role as the patron of Bali Democracy Forum, is disinterested in reinvigorating ‘the toothless tiger’ (Razak, 2009: 21).

Another common area of critique revolves around the peculiarity of the ASEAN conception of human rights, which can be viewed as an old-age debate between cultural relativism versus universalism (International Service for Human Rights, 2014). Arguably, this criticism cannot be separated from the 2012 ASEAN Human Rights Declaration as AICHR’s brainchild, to the disappointment of many, which is widely reviled as a ‘problematic’ and even counterproductive document (American Bar Association Rule of Law Initiative, 2014). Specifically, this declaration goes against the universal nature of human rights and made it more limited in its reach, to the extent that the International Commission of Jurists (ICJ) aptly condemned the declaration as being ‘fatally flawed’ due to its ‘radical departure from international human rights law’ (ICJ, 2012). Seen from a different perspective, this criticism perfectly reflects the predominating trend against international standards at a national level that seems to be distant and rarefied (Asplund, 2009; Iskandar, 2011, 2016a; Müller, 2016).

In the context of non-citizens’ rights, the ASEAN Declaration, as Kneebone observes (2010: 388), ‘applies only to regular migrants…[and] does not refer to racial discrimination nor to the ILO conventions, the Migrant Workers Convention, or other general human rights instruments’. This means that ‘ASEAN’s policy with its recalcitrant members has always been one of economic engagement’, which is exclusively synonymous with trade in goods (Aguirre, 2013). The Commission ‘has continued in their policy of passivity and inaction on the actual human rights issues plaguing the region, preferring instead to bow to narrow state interests, in the guise of so-called principles of “non-intervention” and “decision making by consensus”’ (SAPA TFAHR, 2013: 1). Instead of being engaged in fruitless polemics, human rights groups should be pushing an agenda that is both doable and passable, as well as congruent with broader long-term goals.

As a starting point, the AICHR has adopted the 2015 Guidelines on the AICHR’s Relations with Civil Society Organizations and is the most realistic option that can be nudged to a progressive direction. While acknowledging that the ASEAN Charter provides room for the curtailment of human rights in the name of state sovereignty, Ginbar (2010: 512–513) argues that ‘the [ASEAN] Charter does not explicitly subjugate its human rights provisions to those on national sovereignty or non-interference’. Second, as Razak (2009: 25), one of the Charter’s drafters, points out, the ASEAN Charter is meant to be a ‘living document’ that ‘can be gradually upgraded over the years as ASEAN matures.’ Third, the AICHR’s Term of Reference in Article 1.1 explicitly acknowledges its role in human rights protection in the region. Furthermore, the Term of Reference identifies specific universal documents, such as the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action, as part of the purpose of the establishment of the AICHR. Ginbar (2010: 515) asserts that another important point from the Term of Reference is that it mandated the AICHR to ‘develop strategies’ for human rights protection.

The Dawn of Non-Citizens’ Right to Have Human Rights

As the previous section indicated, one of the main obstacles for the region to be in full agreement with universal human rights jurisprudence is the claim of exceptionalism. That is, the region has a distinctive socio-political culture that legitimizes the need for a distinct concept of human rights. An-Na’im (1995), a Sudanese Muslim human rights scholar, has also emphasized the urgent need for ‘cultural legitimacy’ of human rights discourse. It is important, therefore, to look for an indigenized source that unequivocally ‘[legitimizes] the existing international standards while seeking to enhance their cultural legitimacy within the major traditions of the world through internal dialogue and struggle to establish enlightened perceptions and interpretations of cultural values and norms’ (An-Na’im, 1995: 21). Thus, drawing on the lessons learned from SUHAKAM’s experience in Malaysia, this section discusses four interrelated proposals germane to the current situation and that in turn might help enhance the role of the AICHR as the principal promoter and protector of human rights in the region. Admittedly, the proposal is by no means a silver bullet, rather it should be viewed as a preliminary step to galvanize the region to further acknowledge that non-citizens have a well-established and legitimate claim to ‘the right to have [human] rights’ (Arendt, 1958). By using SUHAKAM as the example, it is hopeful that culture-related obstacles can be lessened.

Migrant Rights Are Human Rights

Arguably, the most important approach in arguing for the rights of non-citizens is the use of international human rights law (Lyon, 2006; Lyon, 2008). This is primarily because international human rights law encompass all human beings by virtue of their membership in humanity (Henkin, 1989; Howard, 1995). ASEAN’s member states have shown, however, they are resistant to granting rights to non-citizens. For example, Thailand not only has failed to ratify but also denounced the 1951 Refugee Convention and operates without functioning asylum procedures (Human Rights Watch, 2012). Against international law, Thailand defiantly only recognizes two non-citizen categories, ‘legal’ and ‘illegal’. This binary legal approach is also being adopted by Malaysia (United Nations, 2007) and Indonesia (Iskandar, 2011), where legal entitlement to human rights is limited to its own citizens (Iskandar, 2016a).

The prevailing academic discourse on human rights in the region is focused on whether the concept is a Western product and thus transferable to Eastern societies. The failure of the region to understand migrant rights as human rights has led to the unjust exclusion of non-citizens from the purview of domestic human rights law in ASEAN member states. This means that despite the fact that Article 1 of the ASEAN Declaration is essentially a replication of Article 1 of the Universal Declaration of Human Rights (Renshaw, 2013: 562), which infers that all persons have an entitlement to human rights, ASEAN limits human rights entitlement only to its citizens. Nevertheless, international human rights standards have been integrated into the domestic legal system of all ASEAN member states mainly through the ratification of some international conventions. Supposedly, it provides some grounds for legal advocacy on behalf of persecuted refugees in the region. The use of human rights arguments may help to expand the basic rights entitlements of non-citizens, and make the distinction between citizen and non-citizen is no longer irrelevant.

Given the fact that the region has now gone beyond a mere tacit acceptance of human rights, it is important for human rights advocates to develop a programmatic strategy to broaden the entitlement of human rights to non-citizens. To reframe the advocacy on behalf of refugees into a human rights issue would not only make it easier for refugee advocates to have access to the available legal venues but, more importantly, it could overcome the deficiencies of domestic and regional legal fora. In addition to an effort to develop a distinct regional human rights jurisprudence, the region could contribute in the global dialogue towards achieving the genuine universal human rights jurisprudence.

Creative Reading

As pointed out by Ginbar (2010), AICHR has failed to be creative in its approach to human rights. The AICHR’s inconsiderate refusal to conduct an investigation into the allegations made by families of journalists massacred in the Philippines is one example (Fonbuena, 2010). The AICHR claimed that such an investigation has ‘not yet’ become its domain (Fonbuena, 2010). In reality, as Ginbar (2010: 517–18) notes, ‘there is nothing in the AICHR’s Term of Reference to prevent it from investigating complaints of human rights violations’. As Ginbar rightly observes, the Commission should be shrewd enough to realize that

[t]hese provisions may be skeletal, but legally there is nothing in the language used therein to stop the AICHR, if it so chooses, from covering them with flesh and skin, for instance by investigating human right violations, or at least requesting information from member states in response to complaints of such violations. (Ginbar, 2010: 515)

On the other hand, SUHAKAM has adopted this “creative reading” model to expand its mandate and successfully enhance its popular legitimacy:

its mandate to protect and promote the human right to equality in Article 8 of the Constitution [which] meant that it could undertake a study of the independence of the judiciary because the independence of the judiciary is essential to litigants enjoying their human right to equality before the law. (Witting, 2003: 81)

In other words, by adopting this creative reading, SUHAKAM broadened its mandate, which resulted in a ‘creation’ of another additional ‘tool’ as part of its effort in zeroing in on the problem at hand. Indeed, this creative reading is arguably indispensable for SUHAKAM in realizing its overall objectives. In the context of AICHR, one important implication of this reading is that it allows AICHR to respond swiftly to the most pressing human rights issues in the region without needing the explicit mandate from ASEAN members, giving credence to AICHR role as the legitimate interpreter of substantive aspects of specific human rights norms.

The International Human Rights Obligation of ASEAN Member States

In regards to the human rights of non-citizens, there are only two member states of ASEAN that have ratified the 1990 UN Convention on Migrant Rights and none of them accedes to any other convention on other non-citizen groups. Nevertheless, the not-so-bad news is that all member states of ASEAN in one way or another have ratified one of the nine core UN human rights treaties. For instance, even Myanmar is a state party to the 1979 UN Convention on Women’s Rights. Fortunately, all international human rights norms, in the words of the 1993 Vienna Declaration and Programme of Action, are ‘universal, indivisible and interdependent and interrelated’ (United Nations Human Rights Office of the High Commissioner, 1993). Thus, the human rights of non-citizens are, by definition, covered by any human rights treaty. In the case of Myanmar, one can therefore legitimately seek Myanmar’s respect for the protection of the rights of women non-citizens. Significantly, given the recent victory of the rights-based approach in the UN system (Slinckx, 2009), there is no doubt that ASEAN is inescapably obliged to protect the human rights of its non-nationals.

Therefore, it should be a legitimate request to ask these states, either individually or collectively, to fulfil their obligations towards the full realization of human rights of non-citizens in their respective jurisdiction. In the most extreme cases, such as the rampant application of the death penalty by ASEAN member states (Novak, 2014), legal invocation of the erga omnes (towards all) obligation might be helpful. The definition of this obligation is found in the International Court of Justice’s Barcelona Traction case, which states the following: ‘the obligations of a State towards the international community as a whole…, [in which] all States can be held to have a legal interest in their protection; they are obligations erga omnes’ (ICJ, 1970: para. 33). In fact, the ICJ in the same case specifically stated that ‘[w]hen a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them’ (ICJ, 1970: para. 33).

Engaging International Jurisprudences

As argued by Purkey (2013: 263), law-based arguments have a

normative force…[that] gives law power that can be transferred to the claim-holder and used to alter the power dynamics of relationships; an individual with a legal claim has more practical power to control her destiny than one who merely has a moral claim.

Unfortunately, the region is lacking a home-grown regional jurisprudence that would be useful in advancing the agenda of non-citizens’ rights. This is why it is important to sample SUHAKAM’s advocacy for gender equality, among many others of its achievements, which has been successful in employing international law in order to legitimize a liberal interpretation of many conservative provisions in Malaysia (Witting, 2003: 83). In the context of the AICHR, an abundance of ‘pro-international standards’ articles in the ASEAN Charter could help boost the legitimacy of the human rights argument. This interpretation provides room for introducing additional pressure on ASEAN member states to protect the human rights of non-citizens. Moreover, the link between international and regional regimes should also be applied to the interpretation of the 2007 ASEAN Declaration on the Rights of Migrant Workers, in particular, with the objective to broaden the scope of protection beyond that of regular migrants. Additionally, the Terms of Reference of the Commission also acknowledges the integral role of the Commission in the effective realization of international standards of human rights at the domestic level.

International law-based arguments are supposedly appropriate in the advocacy of the human right of non-citizens in a region where there is a dearth of friendly jurisprudence on regional and domestic levels. In fact, it might be worthwhile to acknowledge that some of these discrepancies are merely due to the weak understanding of international law at the lower level. For instance, Indonesia’s civil society discourse on international law is predominated by the suspicion that it is only useful for the powerful (Iskandar, 2011). As a result, Indonesia’s practice of migrant rights advocacy is inevitably solely based on ‘diplomatic begging’ for compassion from the host countries (Iskandar, 2011). Moreover, Indonesia’s recent experience in developing an indigenous human rights-friendly supreme ideology called Pancasila which ignored international and foreign law and tragically ended up as an anti-human rights project (Iskandar, 2016b; Iskandar, 2017). It should not be a surprise, therefore, that Indonesia claimed that the ratification of the refugee convention, and thereby the granting of refugee rights, would go against its national law on immigration which treats refugees as regular non-nationals failed to provoke any challenge from its civil society (Sultoni, 2014). Academically speaking, the domestic discourse on international law is all about neo-imperialism (Iskandar, 2011). Ultimately, the effort in making domestic actors fully cognizant of international law has to be part of a longer term solution.

Conclusion

Despite the fact that the process of regionalism is underway, remnants of interstate conflict and ‘legal hostility’ towards non-citizens remain. This situation has generated a false signal where providing human rights entitlement is no different than privileging an enemy. But non-citizens have contributed in a significant manner to the economic development of their receiving countries. Seen from this perspective, human rights and international norms should no longer be viewed as a ‘threat’ to national sovereignty and interests. Rather, stronger protection for human rights should be seen as an imperative throughout the ASEAN region. It implies that the region’s diversity should not impede calls for more substantive changes in the protection of non-citizens’ rights. The notion of exceptionalism has hindered solutions to the problem in the past due to the tenacity of the principle of ‘good neighbourliness’ or the ‘ASEAN Way’. This approach has not only conserved the feudalistic mode of governance but has also paralysed the ability to respond to urgent humanitarian matters, such as the flight of the Rohingya.

While there is no silver bullet, there may be a silver lining where AICHR can prompt the situation in a better direction. While it is understandable to claim that AICHR is lacking the necessary support, there are some immediate, inexpensive and readily applicable measures that have enjoyed success in the past, such as those applied in the case of SUHAKAM. In the longer term, there should also be a home-grown coordinated effort focused on the development of regional jurisprudence of human rights.

In this article, a shift towards human rights norms as way to counter state resistance to refugee laws was emphasized. In other words, invoking human rights discourse, rather than the much narrower refugee law framework, for non-citizens is worth promoting. International human rights norms have been domestically entrenched in the legal systems of modern states to such an extent that it has become part of the everyday political vocabulary. This means it can potentially work even when domestic legal protections for non-citizens are absent. To put it simply, the use of human rights is arguably more likely to be accepted as a ‘legitimate discourse’ than that of refugee law, especially in a democratic state.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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