Indigenous World 2020: Association of Southeast Asian Nations (ASEAN)

Written on 11 May 2020. Posted in Association of Southeast Asian Nations (ASEAN)

The Association of Southeast Asian Nations (ASEAN) established on 8 August 1967 with the signing of the ASEAN Declaration (Bangkok Declaration) by its founding member states: Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei, Cambodia, Lao PDR, Vietnam and Myanmar later joined, making ASEAN a 10-member state institution.

The ASEAN Charter was adopted in November 2007 and came into force in December 2008. It is the legally binding agreement among the member states that provides ASEAN with a legal status and institutional framework.

ASEAN’s fundamental principles, more commonly known as the ‘ASEAN Way’, are founded on non-interference, respect for sovereignty and decision-making by consensus. Although lauded by the ASEAN member states, this principle has been considered a major challenge in moving things forward in ASEAN, particularly within the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC).

Despite having around 100 million people identifying as Indigenous in Southeast Asia,[1] Indigenous Peoples and human rights are ‘sensitive’ topics in ASEAN, especially within the AICHR. As such, the issues on involving Indigenous human rights defenders rarely make it to the discussion table. However, the 40^th ASEAN Ministerial Meeting on Agriculture and Forestry (AMAF) departed from this typical circumstance in ASEAN regarding Indigenous issues. Its Guidelines on Promoting Responsible Investment in Food, Agriculture and Forestry, adopted in October 2018, explicitly mentions Indigenous Peoples in reference to ILO Convention 169 and the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as the importance for member states to uphold Indigenous Peoples’ right to free, prior and informed consent (FPIC).

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

 ASEAN human rights mechanisms and the ‘ASEAN Way’

The ASEAN Intergovernmental Commission on Human Rights (AICHR) is the core human rights mechanism of ASEAN. Created in 2009, its primary function is to interpret provisions and ensure the implementation of the ASEAN Human Rights Declaration (AHRD), which was adopted in 2012. The AHRD has, however, fallen short of human rights organisations’ expectations in the region[2] and does not make any direct reference to “Indigenous Peoples”.[3]

The other human rights mechanisms are the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) and the ASEAN Committee on Migrant Workers (ACMW). Each has its own mandate to ensure the rights of its corresponding sector.[4] The ACWC was established in 2010 and the ACMW in 2007. Of the three mechanisms, Indigenous organisations engage more with the ACWC and AICHR. Indigenous issues also find more space within these mechanisms for discussion.

Compared to the ACWC, the AICHR is considered to have a better position regarding the promotion and protection human rights in the region. Aside from the fact that its mandate has a wider and more general scale, it falls within ASEAN’s pillar of Political-Security Community – one of ASEAN’s three pillars – while the ACWC and ACMW are within the Socio-cultural Community. The third pillar is the ASEAN Economic Community.[5] Although these pillars are expected to equally contribute to achieving ASEAN’s Vision, there is an implicit understanding that the economic pillar is regarded with more importance, after which comes the Political-Security Community, and finally the Socio-cultural Community, which is often taken as limited to cultural exchanges and so-called ‘soft power’.

Nevertheless, since its creation, the AICHR has been criticised for its weak mandate in protecting human rights and addressing violations. As the former ASEAN Secretary-General, Rodolfo Severino, has stated, the AICHR has “acted merely as an ‘information centre’ for human rights protection, and nothing else”.[6] The AICHR shies away from issues considered to be controversial, such as human rights defenders and even more so, Indigenous Peoples human rights defenders. The ACWC does not fare any better, however. It has even fewer opportunities for consultation or discussion with civil society organisations (CSOs) in general; it is not as visible and does not provide information.

Among the notable challenges in moving things forward within the AICHR, and in ASEAN in general, is the so-called ‘ASEAN Way’. Every decision has to be arrived at by consensus, with high consideration of the principle of non-interference and respect for sovereignty. This consequently affects how Indigenous Peoples engage with the AICHR because ASEAN member states, except for the Philippines, do not legally recognise Indigenous Peoples as distinct peoples with specific rights, particularly their collective rights to lands, territories and resources. Other member states have reservations in recognising Indigenous Peoples, especially in using the term Indigenous Peoples, although Indonesia, Laos and Vietnam continue to insist that all their people are Indigenous Peoples.[7]

Regardless of this criticism and nagging concern for Indigenous Peoples and CSOs in the region, the AICHR remains the only available regional institution working on human rights in South-East Asia. There have been some gradual changes in making the AICHR more inclusive and consultative in its engagement with those CSOs with consultative status with the AICHR. Specific reservations on the part of member states regarding specific issues prevail, however, in its overall discussions and expected outcomes. As such, it remains a struggle to incorporate Indigenous issues or even get the term “Indigenous Peoples” used in their documents. Indigenous Peoples are often included and implied within the phrase “marginalised and vulnerable groups”.

Indigenous Peoples Task Force (IPTF) for the ASEAN

The IPTF for the ASEAN was initiated by the Asia Indigenous Peoples Pact (AIPP) in 2009, where the Indigenous Peoples organisations in ASEAN member states gather to prepare for the engagement in ASEAN and other relevant bodies. Additionally, the role of the IPTF is to coordinate at the national and regional levels. The gathering of Indigenous Peoples serves to exchange knowledge and share experiences and come out with common statements, from there it continues working with other CSOs and voices Indigenous Peoples issues in the ASEAN Charter. This task force is aligned with the Indigenous Peoples Human Rights Defenders Network as a focal organisation playing a key role in ASEAN engagement.     

On 10-12 September 2019, the IPFT met ‘back-to-back’ with the ASEAN Civil Society Conference (ACSC) /ASEAN Peoples Forum (APF) and discussed several thematic areas, including: 1) Human Rights, Democracy and Access to Justice; 2) Trade, Investment and Corporate Power; 3) Peace, Security, and Migration; 4) Decent work, Health and Social Protection; 5) Ecological Sustainability, and 6) Digital Rights. Some of the cases highlighted by Indigenous Peoples in ASEAN countries were cases where Indigenous Peoples are affected by corporate investment on a large scale from extractive industries, energy and infrastructure projects; for example, in Thailand, the open coal mining in Omkoi District, the proposed uranium mining and nuclear power plant in Kalimantan, Indonesia, the vast mining operations in the Philippines, and economic concessions in Cambodia, all of which threaten to deprive Indigenous Peoples of their land, territories and resources without their ‘Free, Prior and Informed Consent’ (FPIC). The construction of a mega dam in Malaysia and special economic zone and building programs in the Philippines will displace Indigenous Peoples on a massive scale.            

The engagement modalities are the annual ASEAN Civil Society Conference/ASEAN Peoples’ Forum (ACSC/APF), which in 2019 were in parallel with the bi-annual ASEAN Summit of Leaders, which had the key aims of knowledge sharing and exchanging among peoples of the SEA region[8] and delivering recommendations to ASEAN Leaders. During the ACSC/APF event, the IPTF released separate statements[9] which were published regionally and at the country level. The CSOs’ intervention during the convergence space and town hall session with government representatives has opened up a discussion on Indigenous Peoples’ issues, which led to the formulation of recommendations. Some of the recommendations are to ensure legal recognition of Indigenous Peoples’ land, territories and resources; the halting of corporate investments that violate the rights of Indigenous Peoples to land, territories and resources; and ensuring genuine FPIC of Indigenous Peoples for any intervention in their communities.

Engagement with the AICHR consultation    

Engagement of Indigenous Peoples organisations with the AICHR consultation in 2019 was limited to AIPP, which has a consultative status.

On 8-10 December 2019, the AICHR representative of Indonesia, in collaboration with AICHR Malaysia, organised a consultation on Freedom of Opinion, Expression and Information in ASEAN (Article 23 of the ASEAN Human Rights Declaration/AHRD) in Bali, Indonesia. The 97 participants were from ASEAN Member States, CSOs, media practitioners, university, national human rights institutions, the private sector and ASEAN sectoral bodies. Among many issues, the consultation discussed the state of human rights in the digital age in Southeast Asia and its implications, opportunities and challenges. The consultation also touched on strategies to address the issues related to freedom of opinion and expression in Southeast Asia and the role of stakeholders in addressing the issues related to freedom of opinion and expression. The achievement from this participation was that the AICHR representative highlighted the recommendation that ASEAN member states need to pay the highest attention to freedom of opinion and expression, particularly among minority and vulnerable groups. It further elaborates both conventional and emerging challenges on freedom of expression in ASEAN, particularly for women; people with diverse sexual orientation, gender identity – expression, and gender characteristics; youth; Indigenous Peoples and migrant workers; as well as human rights defenders, journalists and those who express dissenting opinions against governments and the majority. In general, freedom of expression in ASEAN countries is significantly low and needs to be given further attention.

The intervention from CSOs really wanted to push for the consideration of AICHR to further develop its recommendation and help ASEAN member states on the articulation of Article 23 of the AHRD as a way to strengthen the promotion and protection of human rights in ASEAN, as well as expanding their obligation under international human rights law as it is mandated.

ASEAN guidelines on promoting responsible investment in food, agriculture and forestry (FAF)

The purpose of these guidelines is to promote investment in food, agriculture and forestry in the ASEAN region that contributes to the regional economic development, food and nutritional security and equitable benefits, as well as the sustainable use, of natural resources. These guidelines are voluntary in nature without conflicting with existing national laws, regulations and binding international treaties. Indeed, a stronger and more equitable regulatory environment at the national level is the best guarantee to achieve social, economic and environmental benefits from investment. These are also with relevant UN Sustainable Development Goals (SDGs), including ‘No Poverty’ (Goal 1 to end poverty in all forms and dimensions by 2030); ‘Zero Hunger’ (Goal 2 to be achieved by the same date); ‘Gender equality’ (Goal 5, ending all forms of discrimination against women and girls); and ‘ Climate Action’ (Goal 13). The ASEAN guidelines on promoting responsible investment in food, agriculture and forestry are recognised by ASEAN member states and regional global value chains. 

In the ASEAN context, agricultural activities consist of three sub sectors: crops, livestock and fisheries. Forestry as a category in itself is excluded in the ASEAN definition of agriculture, unlike, for instance in the definition of the UN Food and Agriculture Organization of the United Nations’ (FAO).

There is a strong link between land rights and food security. Involuntary resettlement and displacement may disrupt the household or the community’s ability to grow their own food, access natural resources, forage for food and find land for animal grazing.

The ASEAN food, agriculture and forest document (FAF) is very relevant as an advocacy tool to engage with the AICHR, ACWC and other sectoral bodies for lobbying with ASEAN member states. Some of the recommendations from the FAF document include improving the transparency of ASEAN member states, improving governance systems and introducing community engagement strategies in investor-state contracts, including a community development agreement in line with the FPIC principles. Currently, some of member states have started working towards a transparency system, including Malaysia, Laos and Cambodia. According to Zhan et al, 2015[10], Malaysia has published its environment and social impact assessment on the Department of Environment website. The increasing land scarcity, investor competition and learning process of stakeholders at different policy levels is leading to more inclusive investment based on case studies in Laos and Cambodia (Messerli, et al. 2015[11]). 

Frederic Wilson is an Indigenous Peoples of Dusun Putih ethnic group in Sabah, Malaysia. Previously, he has worked with the Indigenous Peoples in Malaysia, especially in Sabah State. Currently, he works as the Human Rights Campaign and Policy Advocacy Programme Officer of Asia Indigenous Peoples Pact (AIPP).

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

[1] Two-thirds of the approximately 370 million indigenous peoples in the world live in Asia but no accurate data is available on the population of indigenous peoples in the ASEAN region as few Member States consider their indigenous identities, which are, therefore, not taken into account in national censuses.

[2] See The Diplomat, “Human Rights Declaration Falls Short” at https://thediplomat.com/2012/11/human-rights-declaration-falls-short/

[3] “Association of Southeast Asian Nations (ASEAN)”, The Indigenous World. International Work Group for Indigenous Affairs, pp. pp. 604-611. April 2018. At https://www.iwgia.org/images/documents/indigenous-world/indigenous-world-2018.pdf

[4] See links for more information on ACWC and ACMW: https://humanrightsinasean.info/events/category/announcement/

[5] On ASEAN’s Three Pillars: https://asean.org/asean-2025-at-a-glance/

[6] See The Diplomat, “Is Promoting Human Rights in ASEAN an Impossible Task?” at https://thediplomat.com/2018/01/is-promoting-human-rights-in-asean-an-impossible-task/

[7] See further information on recognition of indigenous peoples in ASEAN at https://www.iwgia.org/images/publications/0511_ASEAN_BRIEFING_PAPER_eb.pdf

[8] SEA region includes Timor Leste. ACSC/APF includes Timor Leste.

[9] https://iphrdefenders.net/indigenous-peoples-statement-asean-peoples-forum-2019/

[10] Zhan, J., Mirza, H., & Speller, W. (2015). The Impact of Larger-Scale Agricultural Investments on Communities in South-East Asia: A First Assessment. Development Policy, 81.

[11] Messerli, P., Peeters, A., Schoenweger, O., Nanhthavong, V., & Heinimann, A. (2015). Marginal land or marginal people? Analysing patterns and processes of large-scale land acquisitions in South-East Asia. International Development Policy.

Tags: Global governance, International Processes