GENERAL OBSERVATION NO. 1/2016
Interpretation of Articles 6, 7 & 8 of the ASEAN Human Rights Declaration 2012
1. The Association of Southeast Asian Nations (ASEAN) adopted the ASEAN Human Rights Declaration (AHRD) on 18 November 2012.
2. The AHRD has been the subject of criticism that it dilutes international human rights standards. In particular:
2.1 That, under Article 6, rights must be balanced with duties.
2.2 That, under Article 7, the realisation of rights may differ from one ASEAN Member State to another due to different national contexts.
2.3 That, under Article 8, the limitation provision applies to all rights under the AHRD, without exception.
3. Pursuant to my mandate in paragraphs 4.1, 4.3 and 4.8 of the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (AICHR), I set out my response to these arguments in this Observation.
4. The AHRD contains a mixed basket of rights. Some of these rights are not “new” in the sense that Articles 10 and 26 merely affirm all existing civil and political, and economic, social and cultural rights in the Universal Declaration of Human Rights 1948 (UDHR).
5. By virtue of the affirmation, the specific rights listed in Articles 11 to 25 and 27 to 34 are not exhaustive.
6. Further, the Preamble to the AHRD reaffirms the commitment of ASEAN Member States to the UDHR, the Charter of the United Nations, the Vienna Declaration and Programme of Action and other international human rights instruments to which the States have signed.
7. As such, there must be no inconsistency or conflict between the AHRD and the UDHR (and other international human rights norms) in relation to the minimum applicable standards of human rights.
8. To achieve a harmonious interpretation of the AHRD with the UDHR (and other international human rights norms), reference would constantly need to be made to the interpretation of the UDHR rights as the foundational starting-point for rights under the AHRD.
Article 6 AHRD
9. In relation to Article 6:
9.1 It should be noted that a similar provision appears in Article 29(1) of the UDHR, and a more extensive emphasis on “duties” appears in Articles 27 to 29 of the African Charter on Human and Peoples’ Rights 1981.
9.2 Article 6 merely calls for a “balance” in the performance of “corresponding duties”. The enjoyment of one’s right does not rely on his or her due performance of duties because ultimately the primary responsibility still rests with ASEAN Member States to promote and protect all the rights of the right-holders.
9.3 Notwithstanding, Article 6 is not a specific “limitation” clause that permits restrictions to the enjoyment of rights.
Article 7 AHRD
10. In relation to Article 7:
10.1 Article 7 states that all human rights are universal, indivisible, interdependent and interrelated. All human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis. This is the correct minimum international standard that defines the core features of human rights.
10.2 However, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds. This is a recognition that different regional and national contexts may serve to enrich the discourse on human rights. For as long as the minimum standards are met, then the concern about Article 7 is misguided.
10.3 Further, it is now commonly accepted that certain rights may be realised through different means so long as the minimum standards are met. In some instances, and in respect of certain types of rights, States may be given the benefit of a “margin of appreciation” or deference through a “progressive realisation” of the rights to the maximum of their available resources.
10.4 Notwithstanding, Article 7 is not a specific “limitation” clause that permits restrictions to the realisation of rights.
Article 8 AHRD
11. In relation to Article 8:
11.1 It should be noted that a similar provision appears in Article 29(2) of the UDHR. The same argument made against Article 8 may also be made against Article 29(2).
11.2 However, Article 29(2) was drafted the way it was because none of the specific rights under the UDHR also provided for specific limitation clauses, where applicable. New instruments were required to elaborate on the specific rights, hence the International Covenant on Economic, Social and Cultural Rights 1966 and the International Covenant on Civil and Political Rights 1966.
11.3 Similarly, the specific rights enumerated in the AHRD in Articles 11 to 25 and 27 to 34 were not restricted by specific limitation clauses. Rather, Article 8 provides for permissible restrictions couched in a general way without meaning to potentially apply to all human rights under the AHRD. The intention could not have been to apply to all rights considering by the time the AHRD was adopted, certain rights had been well-entrenched as being non-derogable.
12. In any event, it is well-established that any interpretation of human rights must be towards the promotion, and not the destruction, of the same rights.
Edmund was the Representative of Malaysia to the ASEAN Intergovernmental Commission on Human Rights (AICHR) from 2016 to 2018. He issued the General Observation – the first by an AICHR Representative – on 23 September 2016. The text is also available in FORUM-ASIA’s report on ASEAN human rights mechanisms (Annex 2, pp. 44-46) and at AICHR Malaysia Facebook page. Archived at https://perma.cc/AT24-3DQ7.