Indigenous World 2019: Association of Southeast Asian Nations (ASEAN)
The Association of Southeast Asian Nations (ASEAN) was 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, 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 40th ASEAN Ministerial Meeting on Agriculture and Forestry (AMAF) departed from this typical circumstance in ASEAN with regard to 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).
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 and does not make any direct reference to “indigenous peoples”.
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. 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 with regard to promoting and protecting 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. 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. Then comes the Political-Security Community, and then 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”. The AICHR shies away from issues considered to be controversial, such as human rights defenders and even more so indigenous human rights defenders. The ACWC does not fare any better, however. It has even fewer opportunities for consultation or discussion with 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 (LTR). 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.
Regardless of this criticism and nagging concern for indigenous peoples and CSOs in the region, the AICHR remains the 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 of 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”.
Engagement with the AICHR on consultation and on business and human rights
Engagement with the AICHR is often personality-based; the more progressive the AICHR representative, the more opportunities to lobby for indigenous peoples. Decision-making by consensus, however, is a persistent obstacle. Despite opportunities for individual work and cooperation, it is a challenge to ensure that such work convinces all members of the AICHR to comply with the requirement for consensus. The current AICHR representatives of Malaysia and Thailand have been most relevant as allies of indigenous peoples. This may soon change as the term of the current representatives will end in 2019.
In June 2018, the AICHR representative of Thailand organised the “Interregional Dialogue: Sharing of Good Practices on Business and Human Rights”. Through the CSO consultative relationship with the AICHR, Asia Indigenous Peoples Pact (AIPP) was given the opportunity to speak in the plenary session on the experience and issues of indigenous peoples within the business and human rights (BHR) discourse. The most concrete achievement from this participation, aside from the general awareness-raising, was the hope that the issues discussed, and recommendations put forward would be considered in AICHR’s final document, if not in any related deliberations between the representatives. Among the recommendations put forward during the Dialogue were for the member states to “ensure transparency of the steps and processes involved before any development projects start or continue and ascertain that guidelines and safeguards are in accordance with international human rights standards” and for AICHR to “strengthen collaboration with CSOs in promoting human rights in the region and explore establishing a mechanism of working with NHRIs in the region and strengthen work in monitoring and protection and promotion of human rights in ASEAN”. 
An intervention from the CSOs present in the Dialogue was also given permission to be read out during the official session. This opportunity is rare in AICHR meetings and is dependent on the organising representative. The CSOs recommended that the AICHR “provide further information on the continuity of dialogues such as this, and clear ways forward, including how the outcomes of this forum will be carried forward in AICHR’s work with governments and other stakeholders” and “engage with other regional human rights mechanisms to learn from their experiences including on civil society engagement”.
ASEAN’s five focus areas in the Sustainable Development Goals (SDG)
Together with the UN’s Economic and Social Commission for Asia and the Pacific (ESCAP) and the Government of Thailand, ASEAN has recently launched a report entitled, Complementarities between the ASEAN Community Vision 2025 and the United Nations 2030 Agenda for Sustainable Development: A Framework for Action. The report identifies five focus areas, and recommends seven “flagship initiatives” that would support countries in achieving the ASEAN Community Vision 2025 in line with the SDGs. The five focus areas are (1) poverty eradication, (2) infrastructure and connectivity, (3) sustainable management of natural resources, (4) sustainable consumption and production (SCP), and (5) resilience. The ESCAP and the ASEAN Secretariat will jointly conduct the monitoring and evaluation of the implementation of the report and present it to appropriate UN and ASEAN bodies.
The 2017 Declaration on the Gender-Responsive Implementation of the ASEAN Community Blueprint of 2025 and SDGs reiterates the importance of collecting, managing, analysing, disseminating and ensuring access to high-quality, reliable and timely data disaggregated by sex, age, and socio-cultural and economic characteristics. The Declaration “task[s] the ASEAN Ministerial Meeting on Women (AMMW), with the support of the ASEAN Committee on Women (ACW), to review, coordinate, monitor and report its progress through appropriate instruments and actions, with the support of ASEAN Member States”.
These ASEAN documents related to the SDGs narrow down the relevant institutions within ASEAN that can be followed by CSOs when monitoring SDG implementation in the region. The data disaggregation by socio-cultural and economic characteristics should capture and highlight the situation of indigenous peoples with regard to the 2030 Agenda. The ACWC can now also be directly included in the institutions to engage with as regards SDG implementation for its annual report to the ASEAN Ministers Meeting on Social Welfare and Development (AMMSWD), which is copied to the ACW.
Investment in food, agriculture and forestry in ASEAN
The Guidelines on Promoting Responsible Investment in Food, Agriculture and Forestry were adopted at the 40th Senior Official Meeting of the ASEAN AMAF in October 2018. The Guidelines make direct reference to indigenous peoples and the definition of indigenous peoples is in line with ILO Convention 169 and the UNDRIP. Furthermore, its guidelines on “contributing to equitable, sustainable and inclusive economic development and the eradication of poverty” places an emphasis on member states introducing - for areas that involve indigenous peoples - a community engagement strategy in investor-state contracts, including a community development agreement that follows FPIC principle as per the UNDRIP and UN Food and Agricultural Organisation (FAO) FPIC Manual. 
This document is a huge departure from documents within the AICHR or even with the ACWC. It is a useful advocacy document for indigenous organisations and its allies within the region. The “ASEAN Way” will, however, remain a challenge should this document be used in the AICHR or ACWC. These mechanisms within the ASEAN structure often work in silos and bridging them will not be an easy task, especially for an institution that still struggles to both conduct and sustain meaningful engagement with civil societies and recognise indigenous peoples without any reservations.
Marie Joyce Godio is an Ibaloi-Kankanaey-Kalanguya of the Igorots of Cordillera, Philippines. She has worked on various social development initiatives in the Philippines. She previously worked as Human Rights Campaign and Policy Advocacy Programme Coordinator of Asia Indigenous Peoples Pact.
Notes and References
 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.
 Op. cit. Indigenous World 2018