ASEAN'S GRADUAL EVOLUTION: CHALLENGES AND …

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2012

ASEANS GRADUAL EVOLUTIONCHALLENGES AND OPPORTUNITIES FORINTEGRATING PARTICIPATORYPROCEDURAL REFORMS FOR THEENVIRONMENT IN AN EVOLVINGRIGHTS-BASED FRAMEWORKTarik Abdel-MonemUniversity of Nebraska Public Policy Center tabdelmonem2unledu

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Abdel-Monem Tarik ASEANS GRADUAL EVOLUTION CHALLENGES AND OPPORTUNITIES FOR INTEGRATINGPARTICIPATORY PROCEDURAL REFORMS FOR THE ENVIRONMENT IN AN EVOLVING RIGHTS-BASEDFRAMEWORK (2012) Publications of the University of Nebraska Public Policy Center 155httpdigitalcommonsunledupublicpolicypublications155

ASEANS GRADUAL EVOLUTIONCHALLENGES AND OPPORTUNITIESFOR INTEGRATING PARTICIPATORYPROCEDURAL REFORMS FOR THEENVIRONMENT IN AN EVOLVING

RIGHTS-BASED FRAMEWORK

Tarik Abdel-Monem

ABSTRACT

The Association of South East Asian Nations (ASEAN) isentering an interesting and important new phase in its evolutionHaving survived the cold war and Asian financial crisis of 1997the Association remains a uniquely successful yet enigmatic or-ganization comprised of ten major Southeast Asian countriesASEAN nations have successfully obtained rapid levels of eco-nomic and human development in the face of the regions politicaldifficulties yet at the risk of causing significant environmental deg-radation Now ASEAN is implementing two new structures thathave major implications for the state of civil society among itsmember nations-the ASEAN Charter and the ASEAN Intergov-ernmental Commission on Human Rights (AICHR) This Articleexamines ASEANs overarching framework for environmentalgovernance its normative culture of decision-making and how theCharter and AICHR could potentially offer significantly divergentpaths for the Association in light of its environmental and humanrights challenges It particularly examines how the limitations ofASEANs elite governing and decision-making norms constrainthe possibilities for an expansive civil society under the Charterand AICHR in these areas and the challenges of integrating envi-ronmental and human rights paradigms within this context Fi-nally this Article outlines some procedural reforms that ASEANshould adopt that might address its developmental concerns froma participatory standpoint in light of the parameters that constrainthe Associations normative realities

University of Nebraska Public Policy Center JDMPH (University of Iowa)E-mail tarikunledu - Phone (402) 472-3147

234

ASEANS GRADUAL EVOLUTION

TABLE OF CONTENTS

I INTRODUCTION 235II ECONOMIC DEVELOPMENT AND THE

ENVIRONMENT IN ASEAN 236III ASEANS SOFT LAW FRAMEWORK FOR

ENVIRONMENTAL GOVERNANCE 248IV THE ASEAN CHARTER AND

INTERGOVERNMENTAL COMMISSION ONHUMAN RIGHTS 255A THE AICHR AS A HUMAN RIGHTS

PROTECTION ENTITY 264B THE AICHR AS A HUMAN RIGHTS

PROMOTION ENTITY 269V INCREASING PARTICIPATORY RIGHTS AND

PROCESS WITHIN THE AICHR ANDASEAN 270A ACCESS TO INFORMATION 271B PARTICIPATION 274C JUSTICE 278

VI CONCLUSION 278

I INTRODUCTION

The Association of Southeast Asian Nations (ASEAN orthe Association ) is entering its fifth decade Widely perceivedas both an uncommon success and uniquely anomalous regionalassociation ASEAN survived decades of revolution and ColdWar conflict to emerge as one of the worlds leading economicpowers Currently comprised of ten widely divergent economiesand governments the Association continues to have significantrelevance as the common regional entity for Southeast Asia AsASEAN consolidates its standing among both its member-statesand its regional and global peers the Association has arrived at acrossroads The recently created ASEAN Charter and ASEANIntergovernmental Commission on Human Rights (AICHR)provide significant opportunities for the Association tostrengthen both its environmental and human rights governanceapproach-two areas that are both interrelated and in great needof attention As ASEANs member-states continue to develop athigh rates of growth and integrate their domestic economies intoa wider market environmental degradation remains a pressingissue particularly because of the relatively weak institutional andcivil society capacity of ASEAN nations This article examinesthe overall context of ASEANs environmental governanceframework and both the barriers and opportunities to poten-tially integrate new mechanisms for addressing environmental is-

2012] 235

PACIFIC BASIN LAW JOURNAL

sues within a rights-based framework Close attention is paid tothe normative space which has been developed by ASEANs cus-tomary governance practices and principles and how opportuni-ties for establishing new practices would comport with suchboundaries Finally modest proposals are made that would fur-ther ASEAN progress on environmental matters within its evolv-ing governance and rights framework using a participatoryapproach

This article proceeds as follows Part II provides an overviewof ASEANs overall development since its inception It outlinesthe major instruments created by the Association and the widertrends that have characterized its economic evolution It alsosummarizes the general social and environmental concerns thathave arisen as a consequence of ASEANs rapid economic devel-opment Part III reviews the major components of ASEANs en-vironmental governance framework This section provides anoverview of the soft law approach that ASEAN has developedtowards environmental affairs particularly with respect to howthe Associations policymaking process draws from a wider cul-ture of consensus and accommodation It also outlines the Asso-ciations few hard law environmental treaties such as theTransboundary Haze Agreement and how these protocols po-tentially limit significant normative interventions Part IV out-lines the parameters of the recently established ASEAN Charterand ASEAN Intergovernmental Commission on Human Rights(AICHR) This section discusses the limitations of these twobodies both within the wider context of international environ-mental and human rights discourse and within the policymakingand diplomatic norms which characterize ASEANs political cul-ture Specific attention is focused on the 1998 Aarhus Conven-tion on Environmental Matters as a model for recognizingparticipatory procedural rights that span environmental andhuman rights concerns Finally Part V of this article examinesthe AICHR both as a protective and promotion entity for ad-dressing environmental concerns within a rights-based contextAgain drawing from parameters established by the policymakingnorms of ASEAN a series of modest procedural-based reformsto expand participatory practices are suggested for ASEAN as arealistic step towards strengthening its approach towards the en-vironment and human rights

II ECONOMIC DEVELOPMENT AND THEENVIRONMENT IN ASEAN

The Association of Southeast Asian Nations was founded in1967 originally comprised of Indonesia Malaysia the Philip-

[Vol 29234236


pines Singapore and Thailand There were numerous reasonssupporting the formation of ASEAN The five founding mem-bers shared security concerns over both communist Vietnam anddomestic communist insurgencies within their own borders2

There was fear among the founding states that communist Chinamight rise as an ascendant power and eclipse the smaller nationsof the region3 The formation of ASEAN also allayed securitytensions between members The mid-1960s had seen severalyears of Indonesias konfrontasi (confrontation) with the British-backed Federation of Malaysia4 and the competing claims byMalaysia and the Philippines for Sabah also threatened regionalsecurity5 The formation of the five nations into ASEAN stabi-lized relations between member-states and facilitated connec-tions between the non-communist countries of the region againstthe perceived threats of North Vietnam and China6

A shared objective of economic development was a funda-mental tenant of ASEAN As noted in the first paragraph of the1967 Bangkok Declaration establishing ASEAN

[T]he aims and purposes of the Association shall be1 To accelerate the economic growth social progress and

cultural development in the region through joint endeav-ors in the spirit of equality and partnership in order tostrengthen the foundation for a prosperous and peacefulcommunity of South-East Asian Nations7

1 See MICHAI]L ANToLIK ASEAN AND THEP DIPLOMACY OF AccoMMOIDA-TION 3-5 (1990) (describing early history and meaning of ASEAN)

2 See Russell H Fifield ASEAN Image and Reality 19 ASIAN SuRy 11991199-1200 (1979) (outlining security concerns of ASEAN nations during the Indo-china war)

3 See AMrrAv ACIARYA THE QUEST FOR IDENTITY INTERNATIONAL RELA-nONS OF SOUTHEAST ASIA 83-86 (2000) (noting the security concerns of ASEANpartners and apprehension over Chinas possible dominance of Southeast Asiannations)

4 See Ralf Emmers Regional Hegemonies and the Exercise of Power in South-east Asia A Study of Indonesian and Vietnam 45 ASIAN SuRy 645 649-650 (2005)(outlining the years of Konfrontasi under President Sukarno and President Suhartosintention that ASEAN might reassure his partners and diminish the fears of a coer-cive Indonesian hegemony)

5 See Paridah Abd Samad amp Darusalam Abu Bakar Malaysia-PhilippinesRelations The Issue of Sabah 32 ASIAN Suiav 554 554-558 (1992) (outlining thehistorical tensions between Malaysia and the Philippines over Sabah)

6 See Shaun Narine ASEAN and the Management of Regional Security 71PAC Ai+ 195 196 (1998) (outlining ASEANs implications for security amongmember-states) Sheldon Simon ASEAN and Multilateralism The Long BumpyRoad to Community 30 CONTEMP SE ASIA 264 268-69 (2008) (outlining both intra-member and regional security tensions which served to rationalize ASEAN)

7 The ASEAN Declaration (Bangkok Declaration) Aug 8 1967 (last visitedJuly 25 2012) available at httpwwwaseansecorg1212htm

2012] 237


The focus on economic development among member-states wasdirectly linked to the Associations security concerns8 From theperspective of the founding nations economic development andprosperity would undermine the fomenting communist insurgen-cies within their borders a priority given the fact that very hotwars with communists were engulfing North and South VietnamLaos and Cambodia 9 Thailand in particular perceived itself as afrontline state against Vietnamese forces in Cambodia and Laosand was also facing a domestic communist insurgency10 Boththe Philippines and Malaysia12 were also experiencing sizablethreats from armed communist movements

When it became increasingly clear that the United Stateswould extract itself from the region in the waning years of theVietnam War the need to address both security and develop-ment within ASEAN became more pronounced In 1969ASEAN commissioned a United Nations study to recommend aregional economic cooperation and development strategy Thestudy-called the Kansu report after its lead author Professor GKansu of Turkey-was released in 1972 and published in 197413The Kansu report recommended the adoption of regional tradeliberalization and import-substituting industrialization in the re-gion14 Within the context of ASEANs early regional economic

8 See AMITAv ACHARYA CONSTRUCIING A SECURITY COMMUNITY IN

SOUTHEAST ASIA ASEAN AND THE PROBLEM OF REGIONAL ORDER 55-77 (2001)(providing an overview of the regional security context that drove the formation ofthe ASEAN in Southeast Asia)

9 See Shaun Narine ASEAN and the Management of Regional Security 71PAC AFF 195 196 (1998) (noting that economic development in ASEAN wouldundermine domestic communist insurgencies among member-states)

10 See DAVID WYAT THAILAND A SHORT HISTORY 287-90 (1982) (discuss-

ing Thailands involvement in the Indochina War and communist movements withinthe country)

11 See generally Justus van der Kroef Communism and Reform in the Philip-pines 46 PAC AFF 29 29-58 (1973) (providing an overview of communist move-ments in the Philippines)

12 See generally Karl Hack The Long March to Peace of the Malayan Commu-nist Party in Southern Thailand in THAI SOUTH AND MALAY NORTH 173 173-83(Michael Montesana amp Patrick Jory ed 2008) (providing an overview of the MalayCommunist Party and its strategies along the MalayThai border) M Ladd ThomasThe Malayan Communist Insurgency 4 ASIAN AFF 306 306-316 (1977) (outlininghistory of the Communist Party of Malaysia and its activities in both Malaysia andSouthern Thailand during the Cold War)

13 See DEWI FORTUNA ANWAR INDONESIA IN ASEAN FOREIGN POLICY AND

REGIONALISM 65 (1994) (outlining the background of the Kansu report)14 See Stuart Drummond ASEAN The Growth of an Economic Dimension

35 THE WORLD TODAY 31 32-33 (1979) (describing the basic components of theKansu report) Hal Hill amp Jayant Menon ASEAN Economic Integration Driven byMarkets Bureaucrats or Both 4 (Australian Natl University Working Papers inTrade and Development Paper No 201011 2010) (stating that the Kansu reportproposed trade liberalization through selective or product-by-product tariff negoti-

[Vol 29234238


cooperation initiatives the reports recommendations for coop-erative industrial policies and trade liberalization was an earlyiteration of thinking towards an ASEAN Free Trade Area15

Yet in a pattern that would continue to hold sway through-out the 1970s much of the economic growth among ASEAN na-tions resulted from policies enacted by individual member-statesIndonesia began implementing a series of state-directed five yeardevelopment plans which led to an average growth of nearly 8per year from 1968-198116 Malaysia Singapore and Thailandenacted policies moving away from import-substituting industri-alization and towards export-oriented industrialization capitaliz-ing on comparative advantages in labor costs and geographicproximity to international sea lanes 7 Member-states also lever-aged natural resources to enhance their economic productivityThailand implemented infrastructure development plans whichgreatly enhanced its abilities to produce and export cash cropssuch as pineapples or sugar cane as well as manufacturedgoods18 Indonesian agricultural development strategies to subsi-dize the use of high-yield rice varieties and fertilizer saw a 32increase in rice yields in the 1970s19

ASEAN continued a path towards greater regional coopera-tion in economic activities when it convened its first summit ofleaders in 1976-the Bali Summit The meeting reflected a con-scious willingness to strengthen ties in the face of communistgovernance in a reunified Vietnam a similar takeover in Laosand the Khmer Rouge regime in Cambodia20 Member-states at

ations package deal arrangements for large industrial projects and financialcooperation)

15 See Teofilo C Daquila amp Le Huu Huy Singapore and ASEAN in the GlobalEconomy The Case of Free Trade Agreements 43 AsAN SURV 908 921-922 (2003)(discussing the Kansu report and early ASEAN moves towards regional economicinitiatives and AFTA)

16 See Siang Ng Indonesia in ASEAN BUSINEss TRADE amp DiEviELOPMENr 5456-58 (Ron Edwards amp Michael Skully ed 1996) (outlining the history of economicdevelopment in Indonesia following the inception of ASEAN)

17 See GERALD TAN ASEAN EcoNoMic DivaorPMENT AND CO-OPERATION80-85 (1996) (outlining the adaption of export-oriented industrial strategies inASEAN nations) See also DAVID ANTHONY HouINaSwoOI TinL RisiE TEFALL AND HiE RucovEav oir SournIEAsT AsIAS MiNIDRAGoNs 6-7 (2007) (dis-cussing policy shifts towards export-oriented industrialization)

18 See Julie Edwards Thailand in ASEAN Bus TRAnE amp Diev 155 160-61(Ron Edwards amp Michael Skully ed 1996) (discussing Thailands early governmentdevelopment plans and its growth implications)

19 See GERAWo TAN ASEAN ECONOMic DEvLorMENT AND Co-oPERMAnoN53-54 (1996) (outlining Indonesian performance in rice yields as a result of govern-ment policies)

20 See Lay Hong Tan Will ASEAN Economic Integration Progress Beyond aFree Trade Area 53 IrNi amp Comi L Q 935 935-36 (2004) (noting the prelude tothe first ASEAN Summit of leaders in Bali and the regional security context)

2012] 239


the Summit signed the Declaration of ASEAN Concord and theTreaty of Amity and Cooperation broad frameworks which rec-ognized the organizations original principles and restated objec-tives to cooperate along political economic and cultural lines 21

The Summit also saw the adoption of a program of action to in-crease regional economic cooperation based upon the Kansu re-port2 2 A series of preferential tariff schemes and joint industrialventures were implemented regionally by ASEAN shortlythereafter 23

Growth strategies based on export-oriented industrializationbecame the primary means of development for the ASEAN na-tions supported by deregulation and policies which promoted di-rect investment from foreign corporations24 The success ofSoutheast Asia as a manufacturing base was clearly related toJapans economic ascension in particular Export-oriented Japa-nese firms moved manufacturing bases to Southeast Asia due toregional proximity cheap labor costs and openness to foreigninvestment2 5 Within this regional division of labor Japan-atthe center of East Asias economy-both produced the most ad-vanced products and financed the capital for neighboring na-tions exports In turn the Newly Industrialized Countries(NICs) of East Asia (Hong Kong South Korea and Taiwan) pro-

21 See Rodolfo Severino ASEAN Beyond Forty Towards Political and Eco-nomic Integration 29 CONTEMP SE ASIA 406 409 (2007) (outlining products of theBali Summit and noting that the agreements laid down the basic norms for inter-state relations in the region)

22 See GERALD TAN ASEAN ECONOmic DEVELOPMENT AND CO-OPERATION10 (1996) (Of these perhaps the most important was the programme of action toimplement the recommendations of the United Nations team of experts which intheir 1972 report urged the establishment of preferential trading arrangements as ameans of increasing intra-regional trade)

23 See Lay Hong Tan Will ASEAN Economic Integration Progress Beyond aFree Trade Area 53 INTL amp COMP L Q 935 936-38 (2004) (outlining the imple-mentation of the ASEAN Industrial Projects Scheme ASEAN Industrial Comple-mentation Scheme and Preferential Trading Arrangements)

24 See DAVID ANTHONY HOLLINGSWORT-H THE RISE THE FALL AND TIE RE-

COVERY OF SOUTHEAST ASIAS MINIDRAGONs 6-8 (2007) (discussing the importance

to Southeast Asian economies of export-oriented manufacturing and foreign directinvestment) See also GERALD TAN ASEAN ECONOMIC DEVELOPMENT AND CO-OPERATION 80-81 (1996) (discussing the adoption of export-oriented manufacturingstrategies by ASEAN nations and deregulation policies)

25 See Ron Edwards amp Kevin Wong Regional Co-operation ASEAN AFTAand APEC in ASEAN Bus TRADE amp DEV 1 2 (Ron Edwards amp Michael Skullyed 1996) (discussing the link between Japanese investment and ASEAN economicgrowth in export-oriented manufacturing) See also DAVID ANTHONY HOLLINGS-wORTH THE RISE THE FALL AND THE RECOVERY OF SOUTHEAST ASIAS

MINIDRAGONs 8 (2007) (noting the importance of foreign direct investment to theSoutheast Asian economies) Hal Hill ASEAN Economic Development An Analyti-cal Survey-The State of the Field 53 J OF ASIAN STUD 832 840-42 (1994) (discuss-ing the role of foreign direct investment in ASEAN manufacturing andindustrialization)

240 [Vol 29234


duced skilled-labor intensive products and-at the periphery-the Southeast Asian nations produced labor-intensive products26

The average annual percentage rate of real gross domestic prod-uct growth from 1978-1987 for Indonesia Malaysia and Thai-land respectively was 52 55 and 64 compared to only45 for all developing nations in that same time frame 27 From1988-1995 those average annual growth rates only increased re-spectively to 79 89 and 99 for those three ASEANnations 28

Economic development in ASEAN remains a priority forthe foreseeable future29 In 1992 the original six ASEAN na-tions declared the creation of the ASEAN Free Trade Area(A-FTA) 30 Under the AFTA agreement member-states willgradually reduce all tariffs from qualified manufactured goodsproduced within ASEAN to rates of 0-53 The agreementstipulated a pre-determined schedule for tariffs of qualifyinggoods to be reduced to target dates within a fifteen-year timeframe 32 AFTAs creation reflected a desire among regionalelites to further liberalize trade internally 33 while maintaining afocus on external export-driven trade and to aggregate its mar-ket resources in the face of other regional economic communi-

26 See Paul Bowles ASEAN AFTA and the New Regionalism 70 PAC AFF219 222-23 (1997) (outlining the flying geese pattern of development used to de-scribe East Asian regional patterns of direct investment and export-oriented manu-facturing) See also Rajah Rasiah Manufacturing export growth in IndonesiaMalaysia and Thailand in SOUTIHEAsr ASIAN PAPER TIGERS FROM MIRACI E TODEIACLE AND BEYOND 19 41-45 (Jomo KS ed 2003) (discussing the confluenceof foreign direct investment and state-directed policies to promote export-orientedmanufacturing strategies in Indonesia Malaysia and Thailand)

27 See Martin Hart-Landsberg amp Paul Burkett Contradictions of Capitalist In-dustrialization in East Asia A Critique of Flying Geese Theories of Development74 ECON GEOGRAPHY 87 89 tbl 1 (1998) (citing International Monetary Fund sta-tistics on comparative GDP growth)

28 Id29 See Mely Caballero-Anthony Bridging Development Gaps in Southeast

Asia Towards an ASEAN Community 37-38 (UNISCI Discussion Papers Paper No11 2006) (outlining ASEAN initiatives to obtain regional cooperation and economicintegration among members states)

30 See Agreement on the Common Effective Preferential Tariff (CEPT)Scheme for the ASEAN Free Trade Area Jan 28 1992 (last visited July 25 2012)available at httpwwwaseansecorg5124htm

31 See id at art 2 11 1-7 (outlining provisions of the Common Effective Pref-erential Tariff scheme for member-states)

32 See Narongchai Akrasanee amp David Stifel The Political Economy of theASEAN Free Trade Area in AFTA THE WAY AllEAD 27 38-40 (Pearl Imada ampSeiji Naya ed 1992) (discussing the preferential tariff schedule under the AFTAagreement)

33 See Richard Stubbs Signing on to Liberalization AFTA and the Politics ofRegional Economic Cooperation 13 Ti ii PAC Rrv 297 298-300 (2000) (outliningeconomic policy stances among elite decision makers in ASEAN member-states thatwere related to the formation of AFTA)

2012] 241


ties34 The 1997 financial crisis which first struck in Thailand andquickly spread to neighboring nations35 revealed a number ofstructural vulnerabilities behind ASEANs high growth levelsThe most notable factors associated with the crisis included inad-equate financial regulation36 and excessive lending followed byrapid outflows of finance from foreign institutional investors 37

Yet despite the significant financial economic and social impactthat immediately followed the crisis in December of 1998 theASEAN heads of state regrouped and reaffirmed an economicdevelopment-centered platform called the ASEAN Vision 2020which sought to further accelerate economic cooperation and de-velopment among members and fully implement the AFTA ob-jective38 ASEAN has also continued to partner with otherAsian nations to create regional trading schemes such as ChinaJapan and South Korea39 The expansion of the regional blockto include the formerly excluded communist nations of Indochinaand Myanmar have increased ASEANs size to ten nations witha combined population of over 580 million people40

34 See Seiji Naya amp Pearl Imada The Long and Winding Road Ahead forAFTA in AFTA THE WAY AHEAD 53 56-58 (Pearl Imada amp Seiji Naya ed 1992)(discussing the creation of AFTA as a response to global trends or regional eco-nomic cooperation such as the European Community and North American FreeTrade Area) Paul Bowles ASEAN AFTA and the New Regionalism 70 PACAFF 219 223-24 (noting concern among ASEAN policymakers that the region re-main strong in the face of other regional economic groupings) Alfredo Robles TheASEAN Free Trade Area and the Construction of a Southeast Asian Economic Com-munity in East Asia 12 ASIAN J OF POL Sci 78 91 (2004) (discussing the globalcontext in which ASEAN moved to develop the AFTA scheme)

35 See Takashi Shiraishi Introduction States Markets and Societies after theAsian Crisis in AI-IR THnE CRISIS HEGEMONY TECHNOCRACY AND GOVERNANCEIN SOUTHEAST ASIA 1 1 (Siraishi Takashi amp Patricio N Abinales eds 2005) (outlin-ing the basic course of the 1997 Asian financial crisis)

36 See DAVID ANTHONY HOLLINGSWORTH THE RISE THE FALL AND TIE RE-COVERY OF SOUTHEAST ASIAS MINIDRAGONS 12-18 (2007) (discussing regulatoryfailures and moral hazard among investors and lenders that triggered the crisis)Aseem Prakash The East Asian Crisis and the Globalization Discourse 8 REV OFINTL POL ECON 119 122-25 (2001) (discussing causes of the financial crisis includ-ing rapid flows of capital lack of oversight and poorly made investments)

37 See Michael R King Who Triggered the Asian Financial Crisis 8 REV OFINTL POL ECON 438 445-46 (2001) (asserting that the risky behavior of Japaneselenders were a major factor behind the Asian financial crisis) Jeong Yeon Lee For-eign Portfolio Investors and Financial Sector Stability in Asia 47 ASIAN SURV 850863-68 (2007) (analyzing the role of institutional investors and international banks incapital outflows that triggered the financial crisis)

38 See Kuala Lumpur ASEAN Vision 2020 ASEAN (Dec 15 1997) (last vis-ited July 25 2012) httpwwwaseansecorg1814htm

39 See generally Richard Stubbs ASEAN Plus Three Emerging East Asian Re-gionalism 42 ASIAN SURV 440 440-455 (2002) (outlining the history of ASEANrelationships and trade agreements with other powerful Asian economies)

40 See ASEAN Secretariat Fourth ASEAN State of the Environment Report2009 Executive Summary at 7 ASEAN (Oct 2009) (providing an overview of

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In 2003 the ten ASEAN member-states re-affirmed theASEAN Vision 2020 and declared the creation of an ASEANCommunity by 2020 resting on three pillars namely politicaland security cooperation economic cooperation and socio-cul-tural cooperation that are closely intertwined and mutually rein-forcing for the purpose of ensuring durable peace stability andshared prosperity in the region 4 1 The Community will consistof a single market and production base with the free flow ofgoods services investment capital and skilled labor42 - an in-tegrated economy that could compete against China and India 4 3

Currently three ASEAN nations are in the top forty largestworld economies by gross domestic product Indonesia Thailandand Malaysia4 4 Altogether ASEANs gross domestic product is1496341 million US dollars 4 5 making it the ninth largest econ-omy in the world according to World Bank statistics

ASEANs economic expansion has led to considerablesocio-economic progress in many sectors The combination ofhigh GDP growth high rates of foreign investment and high do-mestic savings rates46 has set the foundation for a human devel-opment revolution 47 Considerable state resources have beendirected towards education health and poverty reductionthroughout the member-states From 1970 to 198485 povertyincidence in Indonesia Malaysia and Thailand decreased respec-

ASEAN facts and figures) (last visited July 25 2012) wwwaseansecorgpublicationsSoER4-Sumpdf

41 Declaration of ASEAN Concord II (Bali Concord 1) ASEAN (Oct 72003)(last visited July 25 2012) available at httpwwwaseansecorg15159htm

42 See ASEAN Secretariat Roadmap for an ASEAN Community 2009-2015 at22-30 ASEAN (Apr 2009) (outlining the fundamental principles of the ASEAN Eco-nomic Community) (last visited July 25 2012) wwwaseansecorgpublicationsRoadmapASEANCommunitypdf

43 See DAVID AN-HONY Hoii-iNuGSWORTII TIHE RisE- THE FALL AND TE RE-

covEv or SOunHEAsA ASIAS MINIDRAGONs 194-97 (2007) (discussing the crea-tion of the ASEAN Community as a response to the growing power of China andIndia) MICHAEL RJ VATIKIOTIS POLITICAL CHANGE IN SOUrIIiAsT ASIA TRIM-MING TiiE BANYAN TREEn 184-87 (1996) (discussing the dynamics of the China-Southeast Asia relationship)

44 See Gross Domestic Product 2010 WOmoo BANK (July 1 2011) (last visitedJuly 25 2012) available at httpsiteresourcesworldbankorgDATASTATISTICSlResourcesGDPpdf

45 See Selected Basic ASEAN Indicators ASEAN (Feb 15 2011) (last visitedJuly 25 2012) available at httpwwwaseansecorgstatffablelpdf

46 See GuRAiio TAN ASEAN ECONOMic DEvELoPMENT AND CO-OPERATION

29-30 (1996) (discussing high savings and investment ratios of ASEAN nations)

47 See Richard J Estes Social Development Trends in Asia 1970-1994 TheChallenges of a New Century 37 Soc INotCAoRs Riis 119 137-38 (1996) (discuss-ing the high performance of Southeast Asia in social development indicators in rela-tion to other Asian sub-regions)

2432012]


tively from 57 52 and 39 to 22 21 and 3048 Therehave been profound advances in adult literacy rates49 and highrates of enrollment in secondary education50 Higher educationenrollment increased thirteen times in the region since 196051Educational access for girls and women has amounted to muchgreater labor force participation in ASEAN economies 52 Thenumber of persons per physician decreased in almost all ASEANnations from 1975-1990 with the exception of the Philippines 53

There have been corresponding increases in life expectancythroughout the region54 and decreases of at least 50 in re-gional infant mortality rates55

Numerous commentators also have pointed to unfavorableaspects within Southeast Asias development experience Thegist of this criticism is that accelerated economic growth has ledto profoundly damaging socio-economic trends 56 Critics haveasserted that economic growth in the region has been socially un-even or inequitable57 driven the creation of overcrowded andpoorly managed urban megalopolises58 undermined indigenous

48 See Jomo KS Growth with equity in East Asia in SOUTHEAST ASIAN PA-PER TIGERS FROM MIRACLE Tro DEBACLE AND BEYOND 196 198 (Jomo KS ed2003) (summarizing historical poverty incidence rates for various high performingAsian economies from 1970 to 1993)

49 See Mohan Singh Whither ASEAN Convergence and Divergence of the Re-gions Socioeconomic Dynamics in DEVELOPMENT AND CHALLENGE SOUTHEASTASIA IN TIE NEW MILLENNIUM 75 78-80 (Wong Tai-Chee amp Mohan Singh eds1999) (discussing adult literacy rates in ASEAN nations)

50 See id at 81 (discussing secondary school enrollment rates in ASEANnations)

51 See Gavin Jones The Role of Education in ASEAN Economic Growth Pastand Future in DEVELOPMENT AND CHALLENGE SOUnHEAsT ASIA IN THE NEW MI-

LENNIUM 215 221-22 (Wong Tai-Chee amp Mohan Singh eds 1999) (discussing tertiaryenrollment rates in ASEAN nations and noting that tertiary enrolments in South-east Asia have increased 13-fold since 1960)

52 See GERALD TAN ASEAN ECONOMIC DEVELOPMENT AND CO-OPERATION

92-112 (1996) (outlining ASEAN member-states experiences with the inclusion ofwomen in domestic labor forces)

53 See Singh supra note 49 at 81-82 (discussing access to health-related issuesin ASEAN nations)

54 See id at 84-85 (discussing life expectancy changes among ASEAN nations)55 See GERALD TAN ASEAN EcoNoMIC DEVELOPMENT AND CO-OPERATION

45-46 (1996) (outlining changes in general social development indicators amongASEAN nations)

56 See JONATH-AN RIGG SOUTIEASr ASIA THE HUMAN LANDSCAPE OF MOD-

ERNIZATION AND DEVELOPMENT 23 (1997) (summarizing criticisms of rapid capital-ist development in Southeast Asia)

57 See Jomo KS supra note 48 198-216 (discussing income and wealth distri-bution in East Asian nations as a result of development)


198-200 (1996) (outlining common development-related criticisms directed atASEAN nations)

244 [Vol 29234


Asian values for rampant material consumerism59 and spawneda race to the bottom phenomenon in labor costs that has led tosweatshops or other forms of labor abuses 60 A related line ofcriticism is that excessive development related pathologies thathave emerged in some Southeast Asian nations can be traced tothe influence of international financial institutions such as theWorld Bank or IMIF 61 In the wake of the 1997 Asian financialcrisis the implementation of IMF policies aimed at liberalizingcertain sectors of the affected domestic markets furthered thisargument because of their perceived negative impacts 62

The fast pace of development in Southeast Asia raises ques-tions about its impact on the natural environment Developmenteconomists generally acknowledge that environmental degrada-tion is an inevitable result of development and industrializa-tion63 which can be particularly harmful in nations with lessregulatory or institutional capacity to manage it64 In theory en-vironmental degradation is mitigated at later stages of develop-ment as regulatory frameworks strengthen with the support of

59 See Sulak Sivaraksa Economic Aspects of Social and Environmental Vio-lence from a Buddhist Perspective 22 BuncmiIsT-CIIRISTIAN STuo 47 52-55 (2002)(arguing that corporate-driven capitalism has led to human and spiritual destructiveeffects)

60 See WALDEN BELLo SIIEAN CUNNINGHAM amp Li KIENG PoiI A SIAMESETRAGEDY DEVELOPMENT amp DISINTEGRATION IN MODERN TIHAILANID 88-90 (1998)(criticizing labor practices in Thailand)

61 See Ooi Giok-Ling Trade and the Environment in Southeast Asia in Diwiei-OPMENr AND CIIAuHNCE SourHAsT ASIA IN THE NE-w MILLENNIUM 127 133

(Wong Tai-Chee amp Mohan Singh eds 1999) (discussing the impact of World Bankadjustment lending on the environment) James Petras amp Tienchai WongchaisuwanFree Markets AIDS and Child Prostitution 28 ECON amp POL WKLY 440 440 (1993)(asserting that the World Banks encouragement of the tourism sector in Thailand isat least partially responsible for the existence of child prostitution in Thailand)

62 See LIM CHONG YAH SOUTHEII3AsT ASIA TiHE LONG ROAD AHEAD 318-21(2001) (outlining IMF policies in Thailand Indonesia and South Korea followingthe financial crisis) Nicola Bullard Walden Bello amp Kamal Mallhotra Taming theTigers The IMF and the Asian Crisis 19 Timinuo) WoRiui Q 505 505-556 (1998) (crit-icizing IMF policies and their impact among Asian nations receiving IMF loans inthe wake of the Asian crisis)

63 See John M Antle amp Gregg Heidebrink Environment and DevelopmentTheory and International Evidence 43 ECON DEV amp CULTURAL CIIANGii 603 605(1995) (outlining the environmental transition hypothesis and the existence of envi-ronmental degradation at early periods of economic development) Thomas M Sel-den amp Daqing Song Environmental Quality and Development Is There a KuznetsCurve for Air Pollution Emissions 27 J ENvT ECON amp MGMT 147147-48 (1994)(noting a consensus in economic discourse about the generation of pollution in earlystages of economic development)

64 See Larry Karp Sandeep Sacheti amp Jinhua Zhao Common Ground Be-tween Free-Traders and Environmentalists 42 IN-ri ECON Riv 617 617-18 (2001)(discussing wide-held concerns about the impact of trade and development on theenvironment)

2012]1 245


middle classes65 Outside the formal regulatory arena it is alsopossible for communities to pursue forms of environmental pro-tectionism though that might be dependent on the existence ofaccessibility to legal or political avenues and media and civil so-ciety activity66 The fact that Southeast Asian nations in generalare still developing regulatory and civil society assets thus height-ens the importance of the environmental question

Environmental degradation is implicated by a number oftrends The flight to urban areas for employment opportunitieshas caused many of Southeast Asias major cities to becomesprawling population centers with impoverished urban ghettoshigh air and water pollution rates and formidable traffic conges-tion67 At peak commute times the average speed of traffic inBangkok was once measured to be eight kilometers an hour68

Excessive lead intake levels in blood have been reported to cause400 deaths a year in Bangkok69 Between 1975 and 1998 theamount of pollution caused by auto emissions increased fivetimes in Indonesia and ten times in Thailand70 As ASEAN na-

65 See generally Hemamala Hettige Muthukumara Mani amp David WheelerIndustrial Pollution in Economic Development The Environmental Kuznets CurveRevisited 62 J DEV ECON 445 445-47 (2000) (outlining the theory of an inverserelationship between increasing wealth and pollution) Ram6n L6pez amp SiddharthaMitra Corruption Pollution and the Kuznets Environment Curve 40 J ENVTLECON amp MGMT 137 137-38 (2000) (discussing the inverted-U-shaped relationshipbetween pollution and per capita income in studies of developing economies)

66 See Sheoli Pargal amp David Wheeler Informal Regulation of Industrial Pollu-tion in Developing Countries Evidence from Indonesia 104 J Poi ECON 1314 1316(1996) (discussing community capacities to address environmental concerns as afunction of income education level of civic activity legal or political recourse me-dia coverage presence of a nongovernmental organization)

67 See Jim Glassman amp Chris Sneddon Chiang Mai and Khon Kaen as GrowthPoles Regional Industrial Development in Thailand and its Implications for UrbanSustainability 590 ANNA s AM ACAD POL amp Soc Sci 93 96-98 (2003) (outliningthe urban problems facing Bangkok as a result of rapid growth) Nuntavarn Vichit-Vadakan Nitaya Vajanapoom amp Bart Ostro The Public Health and Air Pollution inAsia (PAPA) Project Estimating the Mortality Effects of Particulate Matter in Bang-kok Thailand 116 ENvrI HEALTHI PERSP 1179 1180-82 (2008) (showing a signifi-cant association between mortality rates and excessive air pollution in BangkokThailand)

68 See Antonia Hussey Rapid Industrialization in Thailand 1986-1991 83 GEO-GRAPHICAL REV 14 23 (1993) (discussing traffic congestion in Bangkok and airpollution)

69 See BELLO CUNNINGHAM amp Poti supra note 60 at 120 (discussing air pol-lution and blood lead level studies conducted in Thailand)

70 See GERAiLi) TAN ASEAN EcONoMic DEVELOPMENT AND CO-OPERATION199 (1996) (Between 1975 and 1998 the amount of sulphur dioxide nitrogen diox-ide and total suspended particulates in the air increased by ten times in Thailandeight times in the Philippines and five times in Indonesia much faster than thegrowth rate of GDP)

[Vol 29234246


tions have moved towards export-driven industrialization7 thepresence of industrial estates which generate hazardous wastehas increased 72 This has led to a heightened prevalence of harm-ful exposures to workers and communities at or near such heavyindustrial sites such as the metal and chemical refining complexof Map Ta Phut in Thailand73 In Jakarta city authorities deter-mined that over 70 of the rivers are heavily polluted with over850 companies dumping waste in rivers without permission74

Deforestation caused by logging for hardwood timber or cropcultivation has been profound throughout the region75 In someyears over 3 of the natural forest in ASEAN nations has beenlost to development76 Forest clearing has contributed to soilerosion and aggregation of polluted runoff into rivers77 Mis-management and development of forest assets has also nega-tively impacted isolated indigenous peoples in areas such asSabah and Sarawak in Malaysia whose livelihoods were inter-twined with the ecosystems78

71 See generally Walden Bello Trouble in Paradise The Tension of EconomicIntegration in the Asia-Pacific 10 WORLD PotY J 33 33-39 (1993) (offering a criti-cal commentary on the impact of rapid industrialization and development in South-east Asia as a consequence of foreign direct investment)

72 See Hussey supra note 68 at 24-25 (discussing increasing pollution andrapid industrialization in Thailand)

73 See Marco Peluso E AL Malondialdehyde-Deoxyguanosine AdductsAmong Workers of a Thai Industrial Estate and Nearby Residents 118 ENvIrLHE-AunI PE-RSP 55 56-59 (2010) (finding significantly higher levels of air pollutionexposure to workers and community members near the Map Ta Phut industrial es-tate in Rayong Thailand)

74 See Jakarta Rivers Still Filthy JAKARTA POST (last visited July 25 2012)httpwwwthejakartapostcomnews20110514jakarta-rivers-still-filthyhtm1

75 See Edward B Barbier Economic Aspects of Tropical Deforestation inSoutheast Asia 3 GIoniAL EcoLoGY amp BIOGEOGRAPHIY LHTEERs 215 219-224(1993) (outlining causes of deforestation in Southeast Asian nations as a conse-quence of demand for timber or farmland) See generally PASUK PIIONGPAIClu1tSUNGsIDII PIRIYARANGSAN amp NUALNOi TiRuERAr GUNS GiuRs GAMnINGGANJA 142-45 (1998) (discussing illegal logging activities in Cambodia and the in-volvement of the Khmer Rouge)

76 See GEIRAi-io TAN ASEAN ECONomic DEvILOPMENT AND CO-ovPIIeATION200 (1996) (outlining annual rates of forest depletion in ASEAN nations)

77 See Charunee Normita Thongtham Monitoring the Mekong 16 AMmo 362362-63 (1987) (discussing water pollution and water quality issues affecting the Me-kong river) Karl J Pelzer Mans Role in Changing the Landscape of Southeast Asia27 J ASIAN Sruo 269 277 (1968) (noting the effects of deforestation on soil erosionin Java)

78 See Giok-Ling supra note 61 at 136 (discussing deforestation in Sabah andSarawak)

2012]1 247


III ASEANS SOFT LAW FRAMEWORK FORENVIRONMENTAL GOVERNANCE

As a regional entity ASEAN has conceptually linked envi-ronmental management and protection to its wider economic de-velopment aims The ASEAN approach thus rejects theenvironment versus development dichotomy by assuming thatgreater economic development will contribute to environmentalsustainability and preservation As stated in the 2009 ASEANState of the Environment Report

Economic development is the key for achieving various socialand environmental goals For instance economic growth canlead to improvement in health and education and can contrib-ute to the increase in the peoples standard of living Theimproved standard of living can lead to better care for the en-vironment through reduced reliance on natural resources andincreased awareness and capacity for environmentalprotection 79

This ASEAN view is informed by a recognition that poverty andunderdevelopment can lead to harmful environmental practicesas well as the regions own histories and struggles with poverty80

This is certainly not to say that ASEAN spurns the natural envi-ronment in favor of development Rather it is a recognition thatpoverty is linked to harmful environmental practices such asrapid deforestation soil erosion or exhaustion poor environmen-tal education and stewardship generally and absence in environ-mental regulation8 Additionally introducing market-orientedfactors that promote more efficient processing in natural re-source-related sectors can both create value and lead to moresustainable practices 8 2 ASEAN nations recognize that a signifi-cant portion of their domestic and export economies depend onnatural resource sectors83 The regions large tourism industry is

79 ASEAN Secretariat supra note 40 at 1080 See Mark A McDowell Development and the Environment in ASEAN 62

PAc AFF-r 307 308-09 (1989) (In fact the environmental problems of un-derdevelopment of poverty are no less acute and are just as widespread as theenvironmental problems caused by affluence)

81 See id (discussing the connection between poverty development and thenatural environment in Southeast Asia)

82 See Stephen Tyler amp Liz Fajber Land and Water Resource Management inAsia at 8 (January 2009) (discussing improved agriculture practices that promotesustainability in Asian nations) (last visited July 25 2012) wwwiisdorgpdf2009asiabackground landwaterpdf

83 See Giok-Ling supra note 61 at 133 (In Indonesia for example over 40percent of the gross domestic product and 50 percent of employment are derivedfrom primary industries attributable to the downstream processing of natural re-sources or tourism )

248 [Vol 29234


also dependent on preservation of natural environments84 ThusASEAN considers obtaining environmental sustainability a stra-tegic objective of economic development

ASEANs current environmental governance frameworkcan be best described as a soft law approach85 Its environmentalpolicy formulation process is derived from the Associationswider decision-making culture which is based on principles ofconsensus among leaders and accommodating differencesthrough quiet diplomacy 86 Unlike the European regional ap-proach ASEAN has not created a regional political body withlegally enforceable mandates but instead opts to identify generalpolicy directions with voluntary national compliance amongmembers87 This decision-making norm is sometimes referred toas the ASEAN way and places an emphasis on informal per-sonal relationships between heads of state and reaching consen-sus through avoidance of direct conflict88 Group decision-making is typically regarded as occurring almost exclusively athigh-levels of diplomacy 89 Non-interference in the domestic af-

84 See generally Glen T Hvenegaard amp Philip Dearden Linking Ecotourismand Biodiversity Conservation A Case Study of Doi Inthanon National Park Thai-land 19 SINGAPORE JOURNAL OF1 TROPICAiL GEOGRAPHY 193 (1998) (outlining thedevelopment of ecotourism in Northern Thailand) Amat Ramsa Yaman amp Abdul-lah Mohd Community-based Ecotourism A New Proposition for Sustainable Devel-opment and Environmental Conservation in Malaysia 4 JOURNAL OF AiPiUEDoSCIENCEs 583 (2004) (discussing the potential benefits of ecotourism projects in Ma-laysian communities)

85 See Koh Kheng Lian amp Nicholas A Robinson Regional EnvironmentalGovernance Examining the Association of Southeast Asian Nations (ASEAN)Model in GLOBAL ENVIRONMENTAL GoviRNANCE 01-r-oNs amp OPPORTUNrIES101 101 -105 (Daniel C Esty amp Maria H Ivanova eds 2002) (outlining the ASEANapproach to environmental governance) Yoichiro Usui An Evolving Path of Re-gionalism The Construction of an Environmental Acqui in the EEC and ASEAN at12-14 ASEAN (2006) (outlining the overall ASEAN environmental governanceframework) (last visited July 25 2012) available at httpwwwnejpasahiusuiyoichiroPaper_2006_Creppdf

86 See generally MICHAEL ANTOLIK ASEAN AND Thn DIPLOMACY oP Ac-COMMODATION 3-10 (1990) (describing the accommodationist and consensus-basedprinciples that drive inter-ASEAN diplomacy) Robin Ramcharan ASEAN andNon-Interference A Principle Maintained 22 CONTEMPORARY SournEAsI AsIA 61(2000) (discussing the history of ASEANs diplomatic approach and recent chal-lenges with integration of Burma Cambodia and Vietnam)

87 See Lian amp Robinson supra note 85 at 104 (outlining the principles ofASEAN diplomacy)

88 See generally Paul Davidson The ASEAN Way and the Role of Law inASEAN Economic Cooperation 8 SINGAPORE YB INTL L AND CONTIBUrORS165 (2004) (discussing the ASEAN way in the context of ASEANs economic in-tegration policies) Hiro Katsumata Reconstruction of Diplomatic Norms in South-east Asia The Case for Strict Adherence to the ASEAN Way 25 CONTIEMPSOurInEAsT AsIA 104 (2003) (describing the development of the ASEAN way andits continual relevance in diplomatic affairs among members)

89 See Marlene Ramirez ASIADHRRA and ASEAN A Case Study on theProcess of Civil Society Engagement with a Regional Intergovernmental Organization

2012] 249


fairs of member-states is regarded as the foundation of theASEAN way 90 The flexibility inherent in this approach facili-tates consensus building among ten member-states with widelyvarying governing approaches (eg communism in Vietnam de-mocracies in the Philippines and Indonesia) starkly differentlevels of development (eg 2011 Gross National Income per cap-ita in Laos - $880 versus in Singapore - $3722091) recent histo-ries of military conflict among member-states and relatively poordomestic human rights records Refraining from confrontationabout domestic affairs preserves harmonious relationshipsamong the organizations member-states Although norms ofnon-interference have generally preserved good relations amongASEAN states there is a lack of meaningful regional dialoguefor improving human rights in the area Additionally this overalldiplomatic and decision-making milieu has left regional environ-mental governance largely devoid of strong enforcement mecha-nisms despite regular pronouncements or declarations byASEAN leadership

ASEANs first formal introduction into regional environ-mental management was the 1977 ASEAN Sub-regional Envi-ronment Program (ASEP) 92 Under the ASEP-a program ofaction drafted with the assistance of the United Nations-envi-ronmental priority areas were identified and a series of initia-tives led to preliminary activities such as the development ofimpact assessments and strengthening of environmental monitor-ing capacities 93 This was followed in 1981 by the initiation ofregular ASEAN Ministerial Meetings on the Environment andthe adoption of the Manila Declaration on the ASEAN Environ-ment to ensure the protection of the ASEAN environment andthe sustainability of its natural resources so that it can sustain

2 paper presented at Forum International de Montreal (2008) (last visited July 252012) available at httpwwwfimcivilsocietyorgenlibraryMRamirez2008pdf (not-ing that ASEAN is primarily state-centric and has had a weak history of interactingwith non-governmental organizations)

90 See Ramcharan supra note 8691 WORLD BANK WORLD DEVELOPMENT INDICATORS 2011 11-12 (2011) (last

visited July 25 2012) available at httpdataworldbankorgdata-catalogworld-development-indicators See also Lian amp Robinson supra note 85 at 104 (Mem-bers agree on common measures decide how to implement them and contributeaccording to their capabilities acknowledging that ASEAN member states haveachieved different levels of development and therefore have different capacities foraction)

92 See Giok-Ling supra note 61 at 128-30 (describing ASEAN efforts in re-gional environmental management)

93 See Wakana Takahashi Environmental Cooperation in Southeast Asia inREGIONAIJSU3REGIONAiL ENVIRONMENTAL COOPERATION IN ASIA 31 32 (Febru-ary 2001) (describing activities undertaken by ASEAN member-states under theASEP)

250 [Vol 29234


continued development with the aim of eradicating poverty andattaining the highest possible quality of life for the people of theASEAN countries 9 4 The Declaration mandated no specific ac-tions but called for adoption of policy guidelines among mem-ber-states to foster environmental education and encouragesustainability practices9 5

The ASEP and Manila Declaration set a direction forASEAN A number of additional declarations of consensus fol-lowed but were similarly characterized by broad policy languagewithout enforcement capacities The 1982 Bangkok Declarationon the ASEAN Environment furthered support for cooperativeactivities particularly in developing environmental action plansincreasing the use of environmental impact assessments and in-tegrating environmental planning in major developmentprojects 96 The 1987 Jakarta Resolution on Sustainable Develop-ment called on member-states to adopt the principle of sustaina-ble development to guide and to serve as an integrating factor intheir common efforts 9 7 Second and third ASEAN Sub-regionalEnvironment Programs were adopted in 1983 and 1988 respec-tively which continued furtherance of cooperative technical andeducational initiatives in the environment 98 AdditionallyASEAN Ministerial Meetings on the Environment continue tooccur every three years and ASEAN Senior Officials on the En-vironment meet on an annual basis to continue cooperative talksand review operational performance of environmental manage-ment projects99 Cooperative endeavors have been developed bythe ASEAN Working Groups on the environment These are ex-pert technical and policy units with responsibility for developingcapacity and furthering cooperation in specific environmentalsectors00 which are regularly reviewed by the Senior OfficialsIn its strategic ASEAN Vision 2020 declaration in 1997 ASEANcontinued to affirm a broad commitment to a clean and greenASEAN with fully established mechanisms for sustainable devel-

94 Manila Declaration on the ASEAN Environment 1(a) Apr 30 198195 Id96 Bangkok Declaration on the ASEAN Environment (1)(i)-(vii) Nov 29

1984 (last visited July 25 2012) available at httpwwwaseanorg6079htm97 Jakarta Resolution on Sustainable Development 1 Oct 30 198798 See Takahashi supra note 93 at 33-35 (describing the ASEP II and III pro-

grams for environmental cooperation)99 See Usui supra note 85 at 13-14 (describing the ministerial and senior offi-

cial level meetings)100 See generally ASEAN Working Groups (Current Working Groups are es-

tablished for Nature Conservation and Biodiversity Coastal and Marine Environ-ment Multilateral Environmental Agreements Environmentally Sustainable CitiesWater Resources Management Environmental Education and Climate Change)(last visited July 25 2012) available at httpwwwaseansecorg8967htm

2012] 251


opment to ensure the protection of the regions environment 0which was also reiterated in the Roadmap for an ASEAN Com-munity 2009-2015 an agreement which binds ASEAN membersto a framework for further political economic and socialintegration10 2

Despite the soft law approach which composes the bulk ofASEANs environmental governance corpus hard law instru-ments do exist but with clear limitations One of ASEANs fewtreaty documents on the environment was developed in 1985 theAgreement on the Conservation of Nature and Natural Re-sources103 The Agreement requires member-states to adopt na-tional conservation strategies 104 maintain maximum geneticdiversity in conservation of species and ecosystems 05 protecthabitat of endangered species 106 prevent environmental degra-dation generally 07 and commit sufficient funds and resources toimplementing the Agreement108 The treaty was viewed as beingparticularly progressive in its scope and strength109 Howeverthree ASEAN nations-Brunei Malaysia and Singapore-have

101 Lumpur supra note 38102 ASEAN ROADMAP FOR AN ASEAN COMMUNITY 81 (ASEAN Secreta-

riat 2009) (noting the strategic objective of establishing a clean and greenASEAN as part of its sustainable development program) (last visited July 252012) available at httpwwwaseanorgpublicationsRoadmapASEANCommunitypdf

103 ASEAN ASEAN Agreement on the Conservation of Nature and NaturalResources July 9 1985 (last visited July 25 2012) available at httpwwwaseansecorg1490htm

104 See id at art 1(1)-(2) (To this end they shall develop national conservationstrategies and shall co-ordinate such strategies within the framework of a conserva-tion strategy for the Region)

105 See id at art 3(1) (The Contracting Parties shall wherever possible main-tain maximum genetic diversity by taking action aimed at ensuring the survival andpromoting the conservation of all species under their jurisdiction and control)

106 See id at art 5(1) (a-d) (Contracting Parties shall wherever possibleprohibit the taking of these species protect habitat of those species)

107 See id at art 10 (The Contracting Parties with a view to maintaining theproper functioning of ecological processes undertake wherever possible to preventreduce and control degradation of the natural environment)

108 See id at art 17 (2) (They shall endeavor to allocate sufficient funds to thetask necessary for the implementation of this Agreement as well as sufficient quali-fied personnel with adequate enforcement powers)

109 Kheng Lian Koh ASEAN Agreement on the Conservation of Nature andNatural Resources 1985 A Study in Environmental Governance 3 (last visited July25 2012) httpwwwearthlorecalclientsWPCEnglishgrfxsessionsPDFssession3Kohpdf (discussing commentary about the Agreement) Simon S C Tay Firesand Haze in Southeast Asia in CROSS-SECTORAL PARTNERSHIPS IN ENHANCINGHUMAN SECURITY 53 58-59 (Pamela J Noda ed 2002) (discussing critical receptionof the Agreement and potential reasons for why it was not ratified by all member-states) [hereinafter Tay]

[Vol 29234252


not ratified the treaty and thus the Agreement has not beenactivated 10

ASEANs second environmental treaty instrument cameinto being as a reaction to the regions 1997 haze catastropheEmanating principally from Indonesia excessive and poorlymanaged clearing of forest for timber and palm oil productioncombined with El Niflo-related weather effects led to uncon-trolled fires covering an estimated four million hectares of for-est Prolonged haze caused by the smoke spread toneighboring nations Air pollution indexes soared leading to nu-merous respiratory illnesses and deaths112 Travel agriculturetourism and business were all significantly affected within thearea leading to almost $10 billion in damages11 3 ASEAN firstresponded by developing its Regional Haze Action Plan1 4 in1997 aimed at strengthening cooperation in prevention monitor-ing and fire suppression activities115 In 2002 ASEAN devel-oped the ASEAN Agreement on Transboundary HazePollution-the first such regional transboundary haze mitigationtreaty in the region and world11 6 The Agreement codified manyof the Action Plans components it created a regional haze pol-lution control center 7 mandated development of national legis-lation to stop unregulated burning118 and formed a voluntary

110 Takahashisupra note 93 at 35 (describing the Agreement on the Conserva-tion of Nature and Natural Resources and noting its lack of ratification by member-states of ASEAN)

111 James Cotton The Haze over Southeast Asia Challenging the ASEANMode of Regional Engagement 72 PACIIc AFAIRS 331 332-335 (1999) (discussingthe scope and causes of the 1997-98 haze disaster)

112 Simon SC Tay Southeast Asian Forest Fires Haze over ASEAN and Inter-national Environmental Law 7 Review OF EUROPEAN COMMUNITY AND INTIERNA-TIONAi ENVIRONMENTAL LAw 202 202-203 (1998) (discussing the effects of thehaze on the region) [hereinafter SC Tay]

113 S Robert Aiken Runaway Fires Smoke-Haze Pollution and Unnatural Di-sasters in Indonesia 94 GEOGRAPHICAL Rvirw 55 63-64 (2004) (outlining the nat-ural and social effects of the 1997 haze crisis on the region)

114 Regional Haze Action Plan December 1997 (last visited July 25 2012)httpwwwaseansecorg9059htm

115 Taysupra note 109 at 60-61 (outlining the parameters and policy guidelinesof the Regional Haze Action Plan)

116 ASEAN ASEAN Agreement on Transboundary Haze Pollution June 102002 (last visited July 25 2012) available at httpwwwjusuionoenglishserviceslibrarytreaties066-03asean-transboundary-pollutionxml

117 See id at art 5(1) (The ASEAN Coordinating Centre for TransboundaryHaze Pollution Control hereinafter referred to as the ASEAN Centre is herebyestablished for the purposes of facilitating co-operation and co-ordination amongthe Parties)

118 See id at art 9(a) (Developing and implementing legislative and other reg-ulatory measures as well as programmes and strategies to promote zero burningpolicy to deal with land andor forest fires resulting in transboundary hazepollution)

2012] 253


haze pollution control fund to finance implementation of theAgreements requirements 19 The treaty unfortunately lacksinternal mechanisms for dispute resolution compliance and pu-nitive measures for transgressions12 0 The major limitation to theAgreement however is that it required ratification from only sixmember-states to enter into force121 Nine of the ten ASEANmember-states have since ratified the Agreement122 with the ex-ception of Indonesia the nation which historically has been theprincipal country of origin for the haze-creating forest fires Al-though Indonesia may ratify the instrument in the future123 it isunclear if there are sufficient enforcement mechanisms withinthe Agreement itself or support among Indonesian policymakersto effectively implement its obligations124

ASEANs soft law approach has succeeded in identifying a gen-eral consensus on environmental preservation and recognizingthe importance of a common regional ecosystem to continued de-velopment-an impressive result for such a diverse association ofnations It has also developed historical precedents for regulardiscussions and cooperative endeavors on a regional level in linewith overall ASEAN activities Additionally the adoption ofhard law instruments such as the Haze Agreement indicate thatthe Association is willing to move on a second track towardsstrengthening its environmental protection mechanisms125

However continued adherence to a policy consensus norm thatseeks voluntary member-state compliance with broad strategic

119 See id at art 20(1 - 4) (A Fund is hereby established for the implementa-tion of this Agreement The Parties shall in accordance with the decisions of theConference of the Parties make voluntary contributions to the Fund)

120 See generally Alan Khee-Jin Tan The ASEAN Agreement on Trans-boundary Haze Pollution Prospects for Compliance and Effectiveness in Post-Suharto Indonesia 13 NYU ENvrTL LJ 647 647 (2005) (discussing the HazeAgreement and internal and external weaknesses that lead to non-compliance)

121 ASEAN ASEAN Agreement on Transboundary Haze Pollution at art 29June 10 2002 (last visited July 25 2012) available at httpwwwjusuionoenglishserviceslibrarytreaties066-03asean transboundary-pollutionxml (This Agree-ment shall enter into force on the sixtieth day after the deposit of the sixth instru-ment of ratification acceptance approval or accession)

122 ASEAN ASEAN Haze Agreement Ratification Status (last visited July 252012) httphazeaseanorghazeagreementstatus

123 Indonesian government seeks passage of ASEAN Haze Agreement Prnt-STARCOM (last visited July 25 2012) httpwwwphilstarcomArticleaspxarticleld=650694amppublicationSubCategoryld=200 (Indonesia is the only Asean na-tion that has not yet ratified the pact with the House stating in 2008 that itthreatened the countrys sovereignty)

124 SC Tay supra note 112 at 203-204 (1998) (discussing the lack of enforce-ment of domestic Indonesian laws to prevent fire clearing)

125 See Takahashi supra note 93 at 48-49 (discussing the potential implicationsof the Transboundary Haze Agreement for ASEAN)

254 [Vol 29234


objectives reveals clear weaknesses126 Translating ASEANs nu-merous declarations on regional environmental policy into na-tional law enforced on a local level implicate institutionalcapacities domestic political will and wider concerns over na-tional sovereignty

IV THE ASEAN CHARTER ANDINTERGOVERNMENTAL COMMISSION

ON HUMAN RIGHTS

After over forty years of existence ASEAN is now enteringa new era of governance with significant potential to elevate en-vironmental and development concerns from a soft-law approachinto a rights-based framework Two institutional developmentshave precipitated this possibility the ratification of the ASEANCharter in 2008127 and the creation of the ASEAN Intergovern-mental Commission on Human Rights (AICHR) in 2009128-the Associations first human rights body Both the Charter andAICHR are milestones for ASEAN and could serve to set theparameters for strengthening human rights and environmentalprotections within a rules-based community There are how-ever significant questions that remain unresolved First there isthe issue of what international environmental rights might be in-tegrated into an ASEAN regimen Second and more importantis whether ASEAN-given both these new institutional develop-ments and its normative practices-is ready and willing to em-brace a strong framework for environmental rights The focushere should be on the potential role of the AICHR as a forumfor protecting such rights Co-equal in importance with the lastquestion posed is if ASEAN is unable or unwilling to fully inte-grate such protections into a rights-framework what path shouldit take in regards to environmental rights

Explicating a connection between environmental protectionand human rights reveals some important limitations irrespec-tive of forum Clearly environmental conditions impact humanwell-being and social justice initiatives meant to improve humancommunities often have an environmental component 129 Inter-

126 See Lian amp Robinson supra note 85 at 110-113 (discussing strengths andweaknesses of the ASEAN approach to environmental governance)

127 ASEAN Charter Preamble Nov 202007 (last visited July 25 2012) availa-ble at httpwwwaseanorgpublicationsASEAN-Charterpdf

128 Cha-am Hua Hin Declaration on the Intergovernmental Commission onHuman Rights Oct 23 2009 (last visited July 25 2012) available at httpwwwaseanorgdocumentsDeclaration-AICHRpdf [hereinafter Charter]

129 Dinah Shelton Human Rights and the Environment What Specific Environ-mental Rights Have Been Recognized 35 DENVER J INiL L amp PoLY 129 169(2006) (The interrelationship between human rights and environmental protection

2012] 255


national law developments recognize the link between humanwell-being and the environment The 1972 Stockholm Declara-tion on the Human Environment recognized that [m]an has thefundamental right to freedom equality and adequate conditionsof life in an environment of a quality that permits a life of dig-nity and well-being 130 The 1992 Rio Declaration on Environ-ment and Development reaffirmed this connection with itsopening principle stating that [h]uman beings are at the centreof concerns for sustainable development They are entitled to ahealthy and productive life in harmony with nature131 Yet be-yond soft declarations incorporating environmental concernsinto a normative and binding rights-based paradigm has re-mained at least partially elusive A distinct universal andunalienable human right to a healthy natural environment hasnot been recognized in any global human rights treaty 132 Theprincipal problem is one of definition Should there be a humanright to a healthy environment or just to a satisfactory envi-ronment133 Identifying the substantive parameters of a healthyenvironment and accompanying environmental standards is ahighly subjective determination for international policy mak-ers134 Enforcing such a right and developing the associated stan-dards would prove complex and difficult and likely more suitedto an administrative body with a legislative mandate and not ajudicial one135 With the exception of the 2002 Ogoniland ruling

is undeniable Human rights depend upon environmental protection and environ-mental protection depends upon the exercise of existing human rights such as theright to information and the right to political participation)

130 Declaration of the United Nations Conference on the Human EnvironmentPrinciple 1 UN Doc ACONF4814Rev1 (June 16 1972)

131 Declaration of the United Nations Conference on Environment and Devel-opment Principle 1 UN Doc ACONF1515Rev1 (June 14 1992)

132 Shelton supra note 129 at 166 (At present no global human rights treatyproclaims a general right to environment)

133 Alan Boyle Human Rights and the Environment A Reassessment 33 (lastvisited July 25 2012) available at httpwwwlawedacukfile-downloadpublications0 1221 humanrightsorenvironmentalrightsareassespdf (High LevelExperts Meeting on the New Future of Human Rights and the Environment Mov-ing the Global Agenda Forward Nairobi Kenya November 2009 and noting differ-ences in proposed and existing standards for an environmental human right)

134 Michael Burger Bi-Polar and Polycentric Approaches to Human Rights andthe Environment 28 COLUMBIA J ENVTL L 371381-82 (2003) (What constitutes aclean healthy satisfactory decent viable or ecologically sound environment is adifficult question) Boyle supra note 133 at 12 (High Level Experts Meeting onthe New Future of Human Rights and the Environment Moving the Global AgendaForward Nairobi Kenya November 2009 and asserting that an international rightto a healthy environment is too uncertain a concept to be of normative value)

135 Gunther Handl Human Rights and Protection of the Environment A MildlyRevisionist View in HUMAN RIGI-TS AND ENVIRONMENTAL PROTECTION 117 137-38 (Antonio Augusto Cangado Trindade ed 1992) (discussing the appropriate forumfor consideration of environmental issues as rights)

256 [Vol 29234


by the African Commission on Human and Peoples Rights136

there are few examples of a recognized distinct and justiciableinternational human right to a healthy environment derived froma human rights instrument

There are however instances of regional courts consideringhuman rights violations that arose as consequences of an act oromission with an environmental nexus However these are casesin which the alleged violations were of more traditional humanrights and not a substantive human right to a healthy environ-ment Typical fact patterns in such cases are when the naturalenvironment becomes so degraded or damaged that it threatenshuman health and the alleged human rights violation for in-stance is a violation of a plaintiffs right to life and not a viola-tion of an individuals right to a satisfactory or healthyenvironmental right137 An example of such a case would beOneryildiz v Turkey 138 in which the European Court of HumanRights found Turkey in violation of the European ConventionsArticle 2 Right to Life following the deaths of several people liv-ing near a garbage dump after a methane gas explosion A simi-lar case was that of Ldpez Ostra v Spain139 in which theEuropean Court found Spain in violation of the ConventionsArticle 8-the Right to private and family life-because indus-trial pollution from a waste treatment plan was interfering withthe plaintiffs overall well-being who lived nearby the plant140

These examples illustrate the argument that there may not needto be a distinct human right to the environment when any pur-ported acts or omissions that lead to actual human harm can beadjudicated as violations of already existing human rights 141

Although a substantive human right to a satisfactory orhealthy environment remains evasive in the international humanrights canon there are recognized procedural rights to environ-mental information and participation in policy matters These

136 Dinah Shelton Decision Regarding Communication 15596 (Social and Eco-nomic Rights Action CenterCenterfor Economic and Social Rights v Nigeria) Case No A CHPRICOMMA0441 96AM J IINTL L 937 937 (2002)

137 See Boyle supra note 133 at 1 (discussing the anthropocentric nature ofhuman rights and traditional approaches to human rights violations)

138 Oneryildiz v Turkey App No 4893999 2004-XII Eur Ct HR (2004)139 L6pez Ostra v Spain App No 1679890 303-C Eur Ct HR (1994)140 For an overview of European Court of Human Rights cases regarding the

environment see generally Ole Pedersen European Environmental Human Rightsand Environmental Rights A Long Time Coming 21 GEo INTt ENVrL L Riv 73(2008)

141 Boyle supra note 137 at 30 (discussing European Convention on HumanRights case law and asserting that it clearly demonstrates how much environmentalprotection can be extracted from existing human rights law without creating specifi-cally environmental rights)

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procedural rights are codified in the 1998 Convention on Accessto Information Public Participation in Decision-making and Ac-cess to Justice in Environmental Matters otherwise known as theAarhus Convention 142 The Aarhus Convention-whose signa-tories include forty-four mainly European nations including theEuropean Union 143- clearly recognizes three distinct types ofprocedural rights for persons in environmental decision-makinga right of access to information a right to public participation indecision-making and a right of access to justice in environmentalmatters144 The right to information requires state parties to pro-vide information about the environment if requested from thepublic145 subject to certain exemptions and immediate dissemi-nation of information if imminent human or environmental harmis possible 146 The right to participation requires state parties toprovide opportunities for fair and transparent public participa-tion in decision-making regarding plans and programs related tothe environment 147 Finally the right of access to justice man-dates the guarantee of judicial review procedures for individualsto challenge decisions148 The Conventions provisions are by nomeans radical The Rio Declarations Principle 10149 recognizedthat [e]nvironmental issues are best handled with participationof all concerned citizens150 and called on states to provide the

142 Convention on Access to Information Public Information in Decision-mak-ing and Access to Justice in Environmental Matters June 25 1998 2161 UNTS447 [hereinafter Aarhus Convention]

143 See Status of Ratification for Aarhus Convention UNECE (last visited July25 2012) httpliveuneceorgenvppratificationhtml

144 Aarhus Convention supra note 142 art 1 (stating as its objective the guar-anteeing of rights to information participation and justice)

145 Id art 4146 Id art 5 1(c) The Aarhus Conventions recognition of informational

rights draws from now common transparency-related regimens that exist in a num-ber of developed nations law or rule-making processes For instance informationalrights in administrative procedures were first established in the United Statesthrough the Freedom of Information Act in 1966 See Freedom of Information ActPub L No 89-554 80 Stat 383 (1966) Similar legislation followed in other com-mon law and European nations before its recognition in both soft and hard interna-tional environmental law through the Rio Declaration and Aarhus Convention SeePeter H Sand The Right to Know Environmental Information Disclosure by Gov-ernment and Industry 2-3 paper delivered to the Human Dimensions of Global En-vironmental Change Knowledge for the Sustainability Transition Berlin Instituteof International Law University of Munich (Dec 2002) (discussing the history anddevelopment of informational rights)

147 Aarhus Convention supra note 142 art 7148 Id art 9149 Declaration of the United Nations Conference on Environment and Devel-

opment Principle 1 (June 14 1992)UN Doc ACONF1515Rev1 (1992)150 Declaration of the United Nations Conference on Environment and Devel-

opment Principle 10 (June 14 1992)UN Doc ACONF1515Rev1 (1992)Declaration of the United Nations Conference on Environment and DevelopmentPrinciple 10 (June 14 1992)UN Doc ACONF1515Rev1 (1992)

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opportunity to participate in decision-making processes [and] facilitate and encourage public awareness and participationby making information widely available The general principlethat environmental decision-making should require public partic-ipation is well-entrenched as a legislative guarantee in many na-tions including the United States which has an extensivemodern history of requiring public involvement activities in fed-eral environmental laws 51

How might such procedural environmental processes be in-corporated into ASEANs new rights-based machinery TheASEAN Charter codified ASEANs policymaking norms and es-tablished the AICHR It thus provides an important context forexamining the challenges and possibilities of integrating procedu-ral environmental rights into ASEANs environmental govern-ance framework The Charter essentially serves as aconstitution-like text for the Association 152 The Charter wasfirst proposed by Malaysia in 2004 and the initiative to developthe Charter was adopted by ASEAN at its 2005 ASEAN Sum-mit153 After nearly four decades of existence the Charter codi-fies the prevailing normative framework of ASEAN relationsand practices into a binding document among member-statesparticularly the principles of non-interference in domestic affairsand peaceful relations among states154 Many of the Chartersprinciples reflect the various treaties protocols and declarationsgenerated by ASEAN over the years alongside foundationaltexts such as the original 1967 Bangkok Declaration and theTreaty of Amity and Cooperation signed at the 1976 Bali Sum-mit155 The stated purposes of the Charter in Article 1 (Pur-poses) are to continue ASEANs original missions to maintainpeace and security in the region156 promote greater political ec-onomic and social cooperation among members 57 create a sin-

151 See Benjamin W Cramer The Human Right to Information the Environ-ment and Information About the Environment From the Universal Declaration to theAarhus Convention 14 COMM L amp Pol v 73 90-91 (2009) (noting statutory re-quirements for public involvement in environmental matters in the United States)

152 Charter supra note 127153 See Mely Caballero-Anthony The ASEAN Charter An Opportunity Missed

or One that Cannot Be Missed SouTI-IAsr AsIAN A17 2008 at 71 71-72 (2008)(outlining the birth and development of the ASEAN Charter)

154 See Rodolfo C Severino ASEAN at Forty A Balance Sheet Sou-r-eninAsTAsIAN Ai-F 2008 at 61 61-65 (discussing the development of the Charter as a re-flection of ASEAN practices)

155 See Diane A Desierto ASEANs Constitutionalization of InternationalLaw Challenges to Evolution Under the New ASEAN Charter 49 Coium J TRANS-NATi L 268 282-288 (2011) (outlining the pre-Charter years of ASEAN and theemergence of the Charter)

156 Charter supra note 127 at art 1 11157 See id at art 1 f2

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gular regional market of goods services and investment158 andfurther economic development and poverty reduction 159

Yet in addition to codifying ASEANs core principles theCharter serves as the textual foundation for a regional commu-nity based on principles of civil society and democracy In itsdevelopment non-governmental associations throughout the re-gion participated in a series of dialogues about the Charter withan official consultative body selected by member-state govern-ments160 Upon its release the Association declared thatASEAN is moving from being State-centric to be more people-oriented At least 10 of the 15 stated purposes of ASEAN inChapter I concern the livelihood and well-being of peoples inASEAN1 61 Particular statements of interest in Article 1 re-flecting this purported mission include the Charters declared in-tent to strengthen democracy enhance good governance andthe rule of law and to promote and protect human rights andfundamental freedoms1 62 to ensure that the peoples and Mem-ber States of ASEAN live in peace with the world at large in ajust democratic and harmonious environment1 63 to enhancethe well-being and livelihood of the peoples of ASEAN by pro-viding them with equitable access to opportunities for human de-velopment social welfare and justice1 64 and to promote apeople-oriented ASEAN in which all sectors of society are en-couraged to participate in and benefit from the process ofASEAN integration and community building 65 AdditionallyArticle 2 of the Charter reaffirms ASEANs respect for funda-mental freedoms the promotion and protection of human rightsand the promotion of social justice1 66 and recognizes its com-mitment to the United Nations Charter and international lawincluding international humanitarian law subscribed to byASEAN Member States167 This is particularly relevant be-cause all ASEAN nations are parties to two major internationalhuman rights treaties the Convention on the Elimination of All

158 See id at art 1 5159 See id at art 1 2(i)160 See Caballero-Anthony supra note 153 at 71-75 (outlining civil society par-

ticipation and expectations in the development of the ASEAN Charter)161 Media Release ASEAN Leaders Sign ASEAN Charter (last visited July 25

2012) httpwwwaseanorg21085htm162 Charter supra note 127 at art 1 7163 See id at art 1 $4164 See id at art 1 11165 See id at art 1 13166 See id at art 2 2(i)167 See id at art 2 2(j)

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Forms of Discrimination against Women (CEDAW)168 and theConvention on the Rights of the Child (CRC)169

Because the Charter serves as a foundational text for theAssociation and is a binding legal instrument among all mem-bers there is reason for optimism in such declarations But botha holistic and contextual analysis of the Charter leaves room fordoubt The principle concern is that the Charter codifiesASEANs longstanding practice of non-interference in the do-mestic activities of its member-states a pattern of behavior thathas effectively allowed member-states to engage in a variety ofpractices deemed antithetical to democratic norms and humanrights 70

ASEAN has long been criticized as a regime that has gener-ally disregarded human rights violations because of its adherenceto principles of non-interference17 1 Although Myanmar iswidely acknowledged as the most notorious state perpetrator ofhuman rights violations172 criticism is due for almost all mem-bers of ASEAN In recent years high profile criticism has reso-nated internationally regarding Thailands crackdown of street

168 Convention on the Elimination of All Forms of Discrimination Against Wo-men Dec 18 1979 1249 UNTS 13 For a list of nations party to the Conventionsee ratificationaccessionsuccession list available at httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsgno=IV-8ampchapter=4amplang=en

169 Convention on the Rights of the Child Nov 20 1989 1577 UNTS 3 Fora list of nations party to the Convention see 8 Convention on the Elimination ofAllForms of Discrimination against Women UNEIED NATIONS TRFATY COLIUiICrIONS

170 See Severino supra note 154 at 64-65 (discussing the lack of clarity as towhether the Charters ideals will be realized in actual behavior among member-states) See also Yuval Ginbar Human Rights in ASEAN Setting Sail or TreadingWater 10 Hum R-rs L Rinv 504 513 (2010) (discussing the overall language of theCharter and noting that [tihe one principle referring to human rights is flankedby three others emphasising [sic] independence sovereignty non-interference in internal affairs and respect for the right of every Member State to lead its[national] existence free from external interference )

171 See generally Lee Jones ASEAN and the Norm of Non-Interference inSoutheast Asia A Quest for Social Order 2-5 (Nuffield College Politics GroupWorking Paper March 2009) (discussing the practice of non-interference in ASEANand its overall implications) Li-ann Thio Implementing Human Rights in ASEANCountries Promises to Keep and Miles to go Before I Sleep 2 YAuE HuM R-rs ampDev L J I (discussing the overall human rights situation in ASEAN nations)

172 See generally John Arendshorst The Dilemma of Non-Interference My-anmar Human Rights and the ASEAN Charter 8 Nw J INun HUM R-rs 102(2009) (discussing Myanmars history of human rights violations and the lack ofstrong ASEAN response) Mann Bunyanunda Burma ASEAN and Human RightsThe Decade of Constructive Engagement 1991-2001 2 STAN J EAs-r AsIAN AFF118 (2002) (discussing ASEAN relations with Myanmar and human rights) MichaelEwing-Chow First Do No Harm Myanmar Trade Sanctions and Human Rights 5Nw J INTL Hum R-rs 153 (2007) (discussing the international response to My-anmars history of human rights violations)

2012]1 261


protesters in 2010173 accounts of state torture and impunity re-lated to the Muslim insurgency in its southern provinces174 andthe ongoing Anwar debacle in Malaysias courts175 Lesserknown but equally egregious violations of human rights havelong occurred in other ASEAN nations including Laos treat-ment of the Hmong and other minorities17 6 and the repression ofChristians in Vietnam177 Non-interference effectively shields allmembers of ASEAN from the deserved criticism that is due

The Charters principles state that member-states shall haverespect for the independence sovereignty equality territorialintegrity and national identity178 of other Association membersand non-interference in the internal affairs of ASEAN MemberStates179 Additionally the ASEAN Summits-the periodicmeetings among Association heads of state-are recognized asthe supreme decision making body for ASEAN 1s0 and the prin-cipal mode of decision making being consultation and consen-sus1 81 among members This structure has created significantconcern because it is unclear how heads of state would resolvedifficult issues regarding member-states behavior Informalconsultation and consensus among heads of state and the lackof any specifically defined enforcement mechanism for Charterprinciples are inadequate mechanisms for protecting humanrights182 Historically ASEAN heads of state have strictly ad-hered to principles of non-interference in the activities of mem-ber-states183 Indeed when the Charter was adopted in 2007 one

173 See Seth Mydans Rights Group Urges Prosecutions in Thai Violence NYTIMES May 4 2011 at A16 (discussing the violent crackdown of pro-ThaksinShinawatra street protesters who occupied central Bangkok in 2010)

174 See Thomas Fuller Southern Thailands Turmoil Grows NY TIMEs Sept5 2009 at A4 (discussing the violent insurgency in Thailands southern provincesand purported human rights violations by state security forces)

175 See Liz Gooch As Clinton Visits Malaysia Promises Fair Trial for DissidentNY TIMES Nov 3 2010 at A12 (discussing the treatment of Malaysian oppositionfigure Anwar Ibrahim)

176 Laos Cease Arbitrary Detention of Deported Hmong HUMAN RIGHTSWATCH (last visited July 25 2012) available at httpwwwhrworgnews20081028laos-cease-arbitrary-detention-deported-hmong (discussing treatment by Laotianauthorities of deported Hmong refugees)

177 See Seth Mydans Vietnam Persecutes Christian Minority Report Says NYTIMES April 1 2011 at All (discussing the situation of Christian minorities in thecentral highlands of Vietnam)

178 Charter supra note 127 at art 2 2(a)179 See id at art 2 2(e)180 See id at art 7 2(a)181 See id at art 20 1182 Caballero-Anthony supra note 153 at 77-80 (discussing how the lack of an

appropriate enforcement mechanism undermines the Charters declarations)183 See Desierto supra note 155 at 286-287 (Noting that in over forty years as

a regional cooperation ASEAN has stood by this principle of non-interference byrefraining from openly criticizing Member States human rights records refusing

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of its member-states Myanmar-arguably the worst state viola-tor of human rights in the region-engaged in a brutal crack-down of peaceful popular protests led largely by Buddhistmonks 84 Like the other member-states Myanmars militarygovernment was a signatory to the Charter 85

In addition to the discord between those sections of theCharter that declare a commitment to democracy and humanrights and the continued norm of non-interference in domesticactivities of member-states the Charters creation of theASEAN Intergovernmental Commission on Human Rights(AICHR) has generated considerable attention and scrutinyThe AICHR was created by Article 14 of the Charter which sim-ply called for the creation of a human rights body which wouldoperate in accordance with parameters to be determined at alater date186 The lead-up to the creation of the AICHR wascharacterized with a great amount of anticipation particularly byinternational and regional human rights advocates and civil soci-ety organizations1 87 The bodys formal Terms of Reference wereadopted by ASEAN in 2009 and the AICHR was formallypresented as the overarching institution responsible for the pro-motion and protection of human rights in ASEAN 88

Similar to the ASEAN Charter the AICHRs Terms of Ref-erence contain incongruous language which creates disparate un-derstandings of the commissions parameters much of it derivedliterally from Charter clauses The stated purposes of the com-mission are to promote and protect human rights and funda-mental freedoms of the peoples of ASEAN189 uphold therights of the peoples of ASEAN to live in peace dignity andprosperity9 and promote the well-being livelihood welfareand participation of ASEAN peoples in the ASEAN Community

support to any opposition movements insisting on consensus voting and resorting toinformal (and often privately brokered) settlement of differences at the ministeriallevel)

184 See Caballero-Anthony supra note 153 at 75 (discussing Myanmars sharpand violent repression of protest but continued participation in the 2007 Summit)

185 Charter supra note 127 at art 39 (containing signature of General TheinSein Prime Minister of the Union of Myanmar)

186 See id art 14 $11-2187 See Catherine Drummond The ASEAN Intergovernmental Commission on

Human Rights (AICHR) and the Responsibility to Protect Development and Poten-tial 11-23 (Asia-Pacific Centre for the Responsibility to Protect Working Paper onASEAN and R2P No 1 Nov 2010) (discussing momentum towards stronger humanrights initiatives in Southeast Asia generally and anticipation of the AICHR)

188 Charter supra note 128189 ASEAN Intergovernmental Commission on Human Rights Terms of Ref-

erence 111 [hereinafter AICHR Terms of Reference]190 Id 112

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building process191 However its human rights mission shouldoccur within the regional context bearing in mind national andregional particularities and mutual respect for different histori-cal cultural and religious backgrounds and taking into accountthe balance between rights and responsibilities 19 2 Additionallythe AICHR shall be guided by respect for the independencesovereignty equality territorial integrity and national identity ofall ASEAN Member States non-interference in the internal af-fairs of ASEAN Member States [and] respect for the right ofevery Member State to lead its national existence free from ex-ternal interference193 The conditioning of the commissionsmission on these principles suggest that ASEAN norms of non-interference in domestic activities will constrain any role it mayhave in terms of enforcing compliance among members TheAICHRs perceived adherence to the norm of non-interferencethus spoiled the immediate hopes of regional civil society activ-ists who hoped it would serve as a marked departure fromASEANs troubled history of human rights violations194 Addi-tionally the commissions members are composed entirely of of-ficially appointed representatives from the governments ofmember-states 195 as opposed to civil society representatives orindividuals who would retain impartial independence from mem-ber governments This heightens the sense that the commissionmight lack the teeth that are arguably necessary for a strong andindependent human rights mechanism

A THE AICHR AS A HUMAN RIGHTS PROTECTION ENTITY

Taken together both the ASEAN Charter and the AICHRsTerms of Reference appear to bifurcate the commissions man-date into two distinct lines as expressly reflected in its openingstatement of purpose to promote and protect human rights andfundamental freedoms of the peoples of ASEAN196 Arguablythe AICHRs mission to protect human rights serves as its moreimportant function and is thus more important than its promo-tional mandate A protection and enforcement role for theAICHR would comport with expectations that it develop into a

191 Id 13192 Id 114193 Id 92-21(a)(b)(c)194 See Ginbar supra note 170 at 504-18 (outlining the AICHR and overall

context of human rights in ASEAN its reception and potential for further evolu-tion) See also Vitit Muntarbhorn Towards an ASEAN Human Rights MechanismA Concept Paper in TOWARDS AND ASEAN HUMAN RIGHTS MECHANISM 6 20-22(discussing civil society visions for a Southeast Asian human rights mechanism asstated in the 1993 Bangkok Nongovernmental Human Rights Declaration)

195 AICHR Terms of Reference supra note 189 95196 Id 111

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regional human rights mechanism with independence powers ofjudicial review and enforcement capabilities One potential tra-jectory of evolution for the AICHR to pursue its protection man-date-and arguably the ideal scenario hoped for by regionalhuman rights activists-would be for it to develop into a humanrights regime akin to that in Europe a strong regional court thateffectively acts as an appellate level judicial body to enforce aregional human rights convention among all member-states197

However the commissions protection mandate rests on rel-atively weak textual support At the outset the very fact that thebody is a commission as opposed to a court with judicial reviewpowers supports the notion that the AICHR might amount to asignificantly weak body for protection of human rights A majorproblem is the lack of a binding instrument with substantiverights The commission is scheduled to draft and release anASEAN Human Rights Declarations98 that will not be a bindingdocument but will later serve as the basis for a Convention thatostensibly will have binding force among members 199 Yet thedevelopment of such an agreement into a strong instrumentseems fraught with a number of significant challenges First it isunclear if a binding document for ASEAN would have the sameor similar substantive and procedural rights as for example theEuropean Convention for Human Rights does Both explicit lan-guage in the AICHR Terms of Reference and long-standing nor-mative practices of ASEAN indicate that it will likely pursuedevelopment of any human rights instrument through a consen-sus approach200 that will be constructive and non-confronta-

197 See European Convention on Human Rights art 1 Nov 4 1950 213UNTS 221 (The High Contracting Parties shall secure to everyone within theirjurisdiction the rights and freedoms defined in Section I of this Convention) Idart 32 (The jurisdiction of the Court shall extend to all matters concerning theinterpretation and application of the Convention and the protocols thereto )See also DJ HARRIS FT AL LAW OF Tim EUROrFAN CONVENTION 702 (1st ed1995) (noting that compliance with the judgments of the European Court of HumanRights by member-states is generally recognised to be exemplary) HeinrichKlebes Membership in International Organizations and National ConstitutionalLaw A Case Study of the Law and Practice of the Council of Europe S-I Louis-WARSAW TRANSATLANTIC LJ 69 78 (1999) (describing the history of the EuropeanConvention and noting that of its approximately 800 or more judgments [a]ll itsdecisions have been respected though sometimes grudgingly by the Statesconcerned)

198 AICHR Terms of Reference supra note 189 $42199 See Desy Nurhayati States Should be Responsible to Citizens TIHE JAKARTA

Posr (last visited July 25 2012) httpwwwthejakartapostcomnews20110720rights-declaration-states-should-be-responsible-citizenshtml

200 See AICHR Terms or Reference supra note 189 $61 (Decision-makingin the AICHR shall be based on consultation and consensus in accordance withArticle 20 of the ASEAN Charter)

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tional201 Given the domestic human rights records ofindividual ASEAN nations such as Myanmar and others it is dif-ficult to imagine that a consensus-seeking process among mem-ber-states would allow for the development of a particularlystrong binding instrument

One possibility is that the human rights declaration currentlybeing drafted-and any subsequent instrument based on it-would amount to an inadequate or insubstantial statement ofhuman rights norms purportedly based on Asian values 2 02

Such a development would comport with the Asian values nar-rative that was embraced and promoted by former SoutheastAsian heads of state such as Dr Mahathir Mohamad 203 and LeeKuan Yew204 to marginalize human rights criticism as a variant ofwestern domination Another possibility is that ASEAN couldadopt an ASEAN minus X model to an instrument allowingfor a multi-stage accession to a binding treaty in which for exam-ple some of the more democratically mature ASEAN nationsratify the convention early and other member-states such asCambodia Laos Myanmar and Vietnam are given more time toaccede 205 This type of framework has been used previously byASEAN in the adoption of various regulatory frameworks 206

201 AICHR Terms of Reference supra note 189 24202 See Michelle Staggs Kelsall The New ASEAN Intergovernmental Commis-

sion on Human Rights Toothless Tiger or Tentative First Step (ANALYSIS FROM THEEAST-WEsr CENTER) Sept 2009 at 5-6 (last visited July 25 2012) available at httpwwweastwestcenterorgfileadminstoredpdfsapi09Opdf (discussing the Asianvalues debate and its possible re-emergence vis-A-vis the AICHR) See alsoMuntarbhorn supra note 194 at 9-11 (discussing the history of human rights withinASEAN and noting its inclination towards a regional and not universal conceptionof human rights)

203 See Jack Donnelly Human Rights and Asian Values A Defense of West-ern Universalism in THE EAsT ASIAN CHALLENGE FOR HUMAN RIGH-s 60 70-7176 (Joanne R Bauer amp Daniel A Bell eds 1999) (noting examples of Mahathirsdefense of the Asian values narrative) See also KHOO Boo TEIK PARADOXES OFMAHATHIIRISM 65-74 (1995) (discussing Mahathirs look east philosophy and emu-lation of the economic development experiences of other East Asian nations)

204 See Fareed Zakaria Culture Is Destiny A Conversation with Lee Kuan Yew73 FOREIGN AFFAIRS 109 113-14 (1994) (presenting Lee Kuan Yews narrative ondifferences between eastern and western values and societies)

205 Charter supra note 127 at art 21 2206 See Caballero-Anthony supra note 153 at 78-79 (discussing use of a stag-

gered accession system to agreements by some but not all ASEAN member-states)Muntarbhorn supra note 194 at 28 (A step-by-step approach may require thatthose ASEAN countries which are ready to concretise an ASEAN human rightsinstrument and related mechanism would do so while leaving the others to joinlater This would be based upon the X minus Y approach already used by ASEAN

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However that is unlikely as the ASEAN Charter seemingly lim-its such a flexible arrangement to economic agreements 207

The other significant unsettled issue is the absence of judi-cial review and enforcement There are no express powers of ju-dicial review for alleged human rights violations identified in theAICHRs Terms of Reference or detailed guidelines for penal-ties or repercussions to be assessed on parties in violation ofhuman rights208 The commission itself is explicitly defined as aconsultative body to ASEAN 209 and that decision-making bemade through consultation and consensus 210 There is no for-mal procedure for consultation and consensus but if consensus isnot obtained about an issue the ASEAN Charter dictates thatmatter should then be referred to the heads of state at theASEAN Summit211 The Charter states that a serious breachor non-compliance with its provisions is also referred to theASEAN Summit2 12 but there is no further guidance on how sucha matter would be handled or what penalties or consequenceswould be assessed on a member-state in breach of the Charter213

Reading both the ASEAN Charter and AICHR Terms ofReference within the context of ASEANs normative historyseems to suggest that the commissions protective powers will-

207 See SC Tay Human Rights ASEANs Way Forward SINGAPORE INSTITUTEOF INTERNATIONAL AFFAIRS (June 18 2008) httpwwwsiiaonlineorgq=programmescommentaryhuman-rights-aseanE28099s-way-forward (Con-sensus is the basic principle for the group While the Charter does allow for anAsean minus X formula this is expressly limited to economic agreements Main-taining Asean unity is key especially on high-profile issues like human rights)

208 See Ginbar supra note 170 at 514-15 (discussing the emphasis placed onpromotion by the AICHRs Terms of Reference but no express language on a pro-tection or enforcement mechanism for the body) Kelsall supra note 202 at 3-4(noting the ambiguity within the ASEAN Charter and AICHR Terms of Referencein regards to review and enforcement)

209 AICHR Terms of Reference supra note 189 93210 Id $61211 Charter supra note 127 at art 20 11-4 (The process of consensus as prac-

ticed by ASEAN originates from long-held practices that emphasize discussion andagreement as opposed to conflict) AMITAv ACHARYA CONSTRUCIlNG A SECUIZIYCOMMUNIrY IN SOUnEIsIsT AsIA ASEAN AND Ti PROBiiEM OF REGIONAL OR-EiiR 77-79 (2001) (discussing the informal consensus process used by ASEAN lead-

ers that has evolved over time) Davidson supra note 88 (discussing thepredominant forms of decision-making within ASEAN) Arguably such a practicemight be well-suited as a protocol for building relationships among heads of state orother diplomatic activities among nations with histories of tension such as inASEAN but is not an appropriately formal or transparent mechanism for a bodywith judicial review responsibilities

212 Charter supra note 127 at art 20 4 (In the case of a serious breach of theCharter or non-compliance the matter shall be referred to the ASEAN Summit fordecision)

213 See Desierto supra note 155 at 314 (discussing the problem of non-compli-ance with the Charter and noting that [tihe Charter however is silent on what suchASEAN Summit decisions could entail in actual practice)

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at least for the immediate future-remain muted The lack of atextual foundation for the AICHR as a strong protective bodyhas led many human rights groups and civil society advocates tocriticize it for being toothless and ineffective 2 1 4 This under-standing of the AICHR has been acknowledged by none otherthan ASEAN leaders themselves Regarding continuing criti-cism about the AICHR from civil society groups ASEANs Sec-retary-General Dr Surin Pitsuwan recently remarked that somepeople might have wished for an independent organization or ahuman rights court to conduct a review but thats not what thisis215 It should be noted that the AICHRs Terms of Referencelike the ASEAN Charter explicitly state that the AICHR doeshave a mission to uphold international human rights instru-ments to which ASEAN Member States are parties 216 Thisclause provides some reason to believe that the AICHR may de-velop an affirmative agenda around those two treaties 217 Thispossibility has been heightened with the creation of the ASEANCommission for the Promotion and Protection of the Rights ofWomen and Children in 2010218 However this bodys Terms ofReference draw strongly from those of the AICHR 219 indicatingthe likelihood that it may retain a similarly soft role without via-ble protective and enforcement powers 220

214 See AICHR ASEANs journey to human rights JAKARTA POST (Indonesia)Jan 11 2010 at 11 (discussing criticism of the AICHR for lacking enforcement pow-ers) Dont celebrate just yet many hurdles still ahead STRAITS TIMES (Singapore)(last visited July 25 2012) httpwwwiseasedusgaseanstudiescentreasco35-09pdf(discussing criticism of ASEAN and the AICHR for lacking teeth in enforcinghuman rights violations) Ary Hermawan Welcoming a half-baked ASEAN rightsbody JAKARTA PosT Dec 21 2009 (As an infantile institution the first-everASEAN human rights body launched in 2009 was not just weak and toothless it wasalmost universally decried as defective)

215 Ismira Lutfia Questions Raised About Aseans Commitment to HumanRights JAKARTA GLoIIE (last visited July 25 2012) httpwwwthejakartaglobecomnewsquestions-raised-about-aseans-commitment-to-human-rights455 2 13

216 AICHR Terms of Reference supra note 189 116217 See Muntarbhorn supra note 194 at 23 (discussing potential options for the

development of an ASEAN human rights mechanism and suggesting that theAICHR might develop a scope of responsibility around the CEDAW and CRC)

218 See Inaugurated ASEAN Commission on the Promotion and Protection ofthe Rights of Women and Children ASEAN BULLETIN (last visited July 25 2012)httpwwwaseansecorg24447htmArticle-2

219 ASEAN Commission for the Promotion and Protection of the Rights of Wo-men and Children (A CWC) Terms of Reference ASEAN available at httpwwwaseanorgdocumentsTOR-ACWCpdf (last visited July 25 2012)

220 See Ginbar supra note 170 at 515-17 (discussing similarities between theAICHR and ACWC)

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B THE AICHR AS A HUMAN RIGHTS PROMOTION ENTITY

The AICHRs mandate to promote human rights has re-ceived less focus and criticism than its purported lack of protec-tive elements Again it should be stated that the AICHRdeveloping into a strong protective mechanism for human rightswith powers of judicial review and enforcement remains an idealobjective However given the normative constraints noted pre-viously it is more likely that the AICHR in practice will evolveinto a body with much more of a promotional function than aprotective one at least in the immediate future If so what mighta promotional agenda for the AICHR that would further humanrights and have a substantive program for environmental protec-tion look like The remainder of this article proposes that anagenda which furthers the principles of procedural environmen-tal justice-as embodied in the Aarhus Convention-might be ofgreat benefit to ASEAN specifically in the realm of public par-ticipation in environmental decision-making A program of ac-tivities grounded in environmental public participation hasimportant normative potential for ASEANs environmental poli-cymaking practices and would create a tangible and substantialrole for the AICHR that would maximize its promotional mis-sion Perhaps most importantly furthering an agenda of publicparticipation in environmental matters would benefit policymak-ing communities within ASEAN nations while simultaneouslyworking towards the wider objectives of good governance anddemocratic practice without violating ASEAN norms of non-interference

As previously noted the ASEAN Charter itself makes ex-press reference to principles of public participation in severalsections Within ASEANs internal decision-making circles theCharter was conceived as an instrument that would recognize theimportance of public participation to the wider communities ofpeople in member nations The 2006 report by an internal advi-sory committee that precluded the actual Charter made explicitrecommendations that ASEAN move towards a people-ori-ented 221 direction The report drafted by a state-appointedEminent Persons Group 222 stated that

ASEAN needs to shed its image of being an elitist organiza-tion comprising exclusively diplomats and government offi-cials More should be done to strengthen people-to-peopleties among ASEAN Member States and to develop channelsto consult ASEAN institutions Parliamentarians in ASEAN

221 REipoprr or nu EmINENT PERSONs Giiour ON nr ASEAN CHIA1rn 6(last visited July 25 2012) available at httpwwwaseansecorg19247pdf

222 Id at 2

2012] 269


Member States (AIPA) and the people of ASEAN in all sec-tors of society Their inputs can help strengthen culturalawareness forge closer common ASEAN identity and im-prove social development in ASEAN The EPG recommendsCultivate ASEAN as a people-centered organization and tostrengthen the sense of ownership and belonging among itspeople including enhancing the participation of and interac-tion among Parliamentarians in ASEAN Member States(AIPA) representatives of the civil society organizations theprivate business sector human rights groups academic institu-tions and other stakeholders in ASEAN 223

This emphasis on the publics role in ASEAN policy manifests inseveral Charter clauses In its Preamble ASEAN stands re-solved to ensure sustainable development for the benefit of pre-sent and future generations and to place the well-beinglivelihood and welfare of the peoples at the center of theASEAN community building process 224 Additionally theCharter states among its list of ASEAN purposes to enhancethe well-being and livelihood of the peoples of ASEAN by pro-viding them with equitable access to opportunities for human de-velopment social welfare and justice 225 and to promote apeople-oriented ASEAN in which all sectors of society are en-couraged to participate in and benefit from the process ofASEAN integration and community building 226 Thus there isclear support for public involvement in governance and policygenerally in the ASEAN Charter

V INCREASING PARTICIPATORY RIGHTS ANDPROCESSES WITHIN THE AICHR AND ASEAN

A substantive commitment to public engagement beyondthe Charters language could be directly achieved through theformal recognition of rights to participation within any instru-ments developed by the AICHR This approach would comportwith regional and global developments that have led to the rec-ognition of rights to public participation in the Aarhus Conven-tion In the absence of such a formal recognition ASEAN couldalso strengthen participatory processes in its existing protocols orpractices such as it has through its Guidelines for Civil SocietyOrganization participation or by establishing new practices thataugment participation in decision-making For reasons discussedearlier it is more likely that the Association will adopt the latterpath than the former and pursue a more gradual approach to-

223 Id at 6224 Charter supra note 127225 See id at art 1 Vl1226 See id at art 1 113

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wards expanding public involvement The advantage of pursuingthis strategy is that it would align with an overall ASEAN milieuthat values policy directions which can be achieved through theAssociations consensus-based approach It is also a matter ofinstitutional capacity Because the AICHR-is at least fornow-unwilling to evolve into or create a separate adjudicativebody the enunciation of further rights would seem a prematurestep at this juncture since no regional judicial review body couldenforce such a right Additionally there are programs that theAICHR could initiate that would strengthen public participationin environmental matters within existing mechanisms that couldprecede the ultimate or eventual development of a regionalhuman rights court

There are both general steps that should be considered byASEAN policymakers as well as specific changes that theAICHR could implement that would expand meaningfulprocesses for public participation in issues that span humanrights and environmental concerns Challenges and possible ad-vancements in participatory processes will be discussed in thecontext of the Aarhus Conventions categorization of proceduralrights into three prongs-information participation and justice

A ACCESS TO INFORMATION

Advancing a participatory approach towards information accessthrough the AICHR could be well facilitated through the in-volvement of Civil Society Organizations (CSOs) Civil Soci-ety Organizations play an essential role in governance as publicinterest advocates watchdogs and stakeholders with specializedareas of expertise and constituencies 227 As mediators betweenstates and citizens CSOs are well-placed to advocate for publicinterests generally and marginalized sectors that lack the capacityto advocate within traditional bureaucracies They can also playa critical role in translating complex policy or technical issuesinto more accessible formats and increasing overall transparencyand capacities for engagement among common citizenry228

CSOs have made significant strides in these areas working withinthe framework of United Nations bodies particularly in the envi-

227 See Patrizia Nanz amp Jans Steffek Global Governance Participation and thePublic Sphere 39 GoVeRNMENT AND OPPOSITION AN INTL J o COMP POItICS314 315 (2004) (discussing the important role of civil society entities in public policyand discourse generally)

228 See id at 323 (2004) (First civil society organizations can give voice tocitizens concerns and channel them into the deliberative process of internationalorganizations Second they can make the internal decision-making processes of in-ternational organizations more transparent to the wider public and formulate techni-cal issues in accessible terms)

2012] 271


ronmental arena229 In Southeast Asia CSOs are critical publicsphere actors since significant portions of citizenry still lack thecapacity to interface with entities such as the AICHR

Within ASEAN the Association maintains Guidelines onASEANs Relations with Civil Society Organizations 230 that setforth parameters for establishment of relations between CSOsand the Association These Guidelines set general criteria andallow for procedures in which CSOs may be formally involved inASEAN activities 231 Under the Guidelines qualifying CSOs af-filiated with ASEAN may have access to official ASEAN docu-mentation on a selective basis 232 Documentation such asdeclarations policy statements and other material is available atthe ASEAN website233 However the release of information islimited Transcripts of internal deliberations are not availableand the actual decision-making process that takes place amongheads of state at ASEAN Summits remains largely opaque234 Itis unclear from the Charters general language how decisions orcriteria for the availability of official documentation are madeThe Guidelines for participation indicate that for qualifyingCSOs [f]or purposes of doing research for its [the CSOs]projects it may be allowed access to the ASEAN documents on aselective basis in consultation with the ASEAN Secretariat andor its link body 235 The AICHRs Terms of Reference are silenton any aspects of informational access to the public or non-gov-ernmental organizations According to the Terms the AICHRmust submit an annual report to the ASEAN Foreign Minis-

229 See Barbara Gemmill amp Abimbola Bamidele-Izu The Role of NGOs andCivil Society in Global Environmental Governance in GLOBAL ENVIRONMENTAL

GOVERNANCE OPTIONS amp OPPORTUNITIEs 1 5-6 (D C Esty amp M H Ivanova eds2002) (discussing the role of NGOs within the United Nations)

230 Guidelines on ASEANs Relations with Civil Society OrganisationsASEAN (last visited July 25 2012) httpwwwaseanorg18362htm [hereinafterCSO Guidelines]

231 See Yves Bonzon Institutionalizing Public Participation in WTO Decision-making Some Conceptual Hurdles and Avenues 11 J INTL ECON L 751 766-68(2008) (discussing the CSO guidelines for ASEAN)

232 See CSO Guidelines supra note 230 19 (stating that the qualifying CSOmay be allowed access to the ASEAN documents on a selective basis in consulta-tion with the ASEAN Secretariat and or its link body but also noting that theASEAN Secretariat shall provide CSOs with key ASEAN publications everyyear)

233 See CRESENCIA MAURER SUZANNE EHLERS amp ANDREw BUCHMANALIGNING COMMITMENTS PUBLIC PARTICIPATION INTERNATIONAL DECISIoN-

MAKING AND -II ENVIRONMENT 13-15 (last visited July 25 2012) available athttppdfwriorgaligning-commitmentspdf (highlighting examples of ASEAN doc-umentation available online)

234 See id at 16 (ASEAN establishes complete confidentiality over itsdeliberations)

235 CSO Guidelines supra note 230 T9

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ters236 Since its formation no reports of activities have beenmade available to the public Additionally the AICHR has alsointernally developed a 5 year work plan and rules of procedurefor the body2 37 However details have yet to be made publicregarding either development238 Because internal discussionsare kept secret and details only released incrementally in theform of press releases this has led human rights advocates tocriticize the AICHR for maintaining a shroud of secrecy 239

Both the AICHR and ASEAN generally should move to-wards releasing more documentation to the public and clarifyingcriteria and processes for public release of information Clarifi-cation is needed specifically in the areas of how CSOs or mem-bers of the public may formally request documentation that isnot readily available online or in paper records and how deci-sions regarding access to documentation are made Requests forsuch access and corresponding decisions should be recorded andalso be made publicly available A CSO advisory body should becreated to recommend processes for access to information 240

The World Trade Organizations presentation of documentationonline serves as a positive model that the AICHR and ASEANcould aspire to 24 1 Following the WTOs approach a blanketpresumption of access to meeting minutes and other documenta-tion should be created after a reasonable amount of time haspassed242 A general rule should be established that all relevant

236 AICHR Terms of Reference supra note 189 413237 Press Release of the Fifth ASEAN Intergovernmental Commission on

Human Rights ASEAN (last visited July 252012) httpwwwaseanorg26208htm(noting discussion of five year work plan and rules of procedure and other progressmade by AICHR) Press Release of the Sixth ASEAN Intergovernmental Commis-sion on Human Rights ASEAN (last visited July 25 2012) available at httpwwwaseanorg26456htm (noting further discussion of the five year work plan andbudgct and rules of procedure)

238 SAPA TASK FORCE ON ASEAN AN) HUMAN RiGirrs HIDING BEIINI) ITSLIMrrs A PERFORMANCE REPORr ON THE FIRST YEAR OF TIE ASEAN INTERGOV-ERNMENTAL COMMISSION ON HUMAN RIorrs (AICHR) 5-6 (2010) (last visited July25 2012) available at httpforum-asiaorg2010Report20on20AICHR27s20first20year20_for_distpdf (discussing the secretive nature of internal AICHRdeliberations)

239 Id at 5240 See UNIT NArIONs ENVIRONMENT PROGRAMME STRENGTHENING IN-

TEIRNATIONAL ENVIRONMENTAL GOVERNANCE AND CIvIL SocITY LEADERSHIP INTiHE ASIA-PAcInc 29 (2008) (recommending similar strategies for the United Na-tions environment and development programs)

241 See Nanz amp Steffek supra note 227 at 327 (By now the WTOs presenta-tion of documents on the internet is regarded to be among the best of all publicinternational organizations in terms of content and user guidance)

242 See The General Councils Crowded Agenda for Last Regular MeetingBIuDGHS BETWIEN TRADE AND SusTAINAniji DIVELOPMENTr (INTERNATIONALCENTER ii FOR TRADE AND SUSTAINAnius DevELorMENT GENEVA SwnrFIRIAND)Nov-Dec 2000 at 9 (last visited July 25 2012) available at httpictsdorg

2012]1 273


policy decision-making information should be made publiclyavailable 243 A presumption in favor of access to information asopposed to restriction would clarify the process to obtaining in-formation and comport with the ASEAN Charters spirit of pub-lic participation

Additionally although some documentation is available onthe ASEAN website in English the official working language ofthe Association greater efforts could be made to translate morematerial into the regional languages of member-states particu-larly its most important texts Maintaining documentation onlyin English restricts access of this material to government elitesand selective academic or non-governmental entities ASEANdoes maintain a separate webpage for environmental matters in-cluding information on environmental governance withinASEAN specific reports on the ASEAN environment and thestatus of ASEAN member-state ratification of international envi-ronmental agreements 244 However all documentation is in En-glish only and relatively scant Developing an online publicinformation center or clearing house in multiple languages wouldgreatly enhance the degree to which the public could access im-portant ASEAN documentation similar to those maintained bythe secretariats of several multilateral environmentalagreements 245

B PARTICIPATION

Participation in ASEAN policymaking follows traditional pat-terns of multi-track diplomacy 246 Here again CSOs play a criti-cal role The Guidelines on ASEANs Relations with CivilSociety Organizations outline general parameters for Track II

downloadsbridgesbridges4-9pdf (discussing external transparency concerns in theWTO and referring to Norways request to automatically de-restrict documentationabout a suitable time frame)

243 ECOLOGIC INSTITUTE PARTICIPATION OF NON-GOVERNMENTAL OR-GANISATIONS IN INTERNATIONAL ENVIRONMENTAL GOVERNANCE LEGAL BASISAND PRACTICAL EXPERIENCE 247 (last visited July 25 2012) available at httpecologiceudownloadprojekte1850-18991890report ngos enpdf (calling for ac-cess to all policy-relevant information in environmental governance generally)

244 See Main Page Our Life Our Future Environment (last visited July 252012) available at httpenvironmentaseanorg

245 See MAURER ET AL supra note 233 at 9-12 (discussing informational accessto the public in the context of several existing international conventions for theenvironment)

246 For overviews of participatory mechanisms in international institutions seegenerally Steve Charnovitz The Emergence of Democratic Participation in GlobalGovernance (Paris 1919) 10 IND J GLOBAL LEGAL Swuo 45 (2003) Jens Steffekamp Ulrike Ehling Civil Society Participation at the WTO - A Cure for its Demo-cratic Deficit paper presented at 3rd ECPR General Conference Budapest (lastvisited July 25 2012) (available at httpwwweu-newgovorgdatabaseDOCSP11 DO]L-Steffek Ehling-CivilSociety-Participation-at the_WTOv2pdf)

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CSO involvement in ASEAN processes Officially affiliated or-ganizations may submit written statements or recommendationson policy issues to ASEAN through its secretariat 247 and partici-pate in meetings of associated ASEAN mechanisms at the discre-tion of ASEAN 248 Qualifying CSOs are subject to requirementsfor affiliation with ASEAN including an obligation to advanceASEAN interests and promote the awareness of ASEANs prin-ciples and activities 2 4 9 The officially affiliated CSOs are listedin an annex of the ASEAN Charter 250 and include the WorkingGroup for an ASEAN Human Rights Mechanism-which main-tains a dialogue with the AICHR as it continues its develop-ment251 The Charters official designation of these entities asTrack II dialogue partners certainly bolsters the legal relevanceof these relationships CSOs undoubtedly play a critical role inASEAN as watchdogs and advocates for communities and sec-tors that are excluded from Track I dialogue particularly becausethe civil society infrastructure in the region generally is still in theprocess of development 252 However critics have asserted thatmany of these officially recognized Track II CSOs are largely cre-ations of various member-state governments which have policygoals that align with or accommodate those of ASEAN 253 Since2005 there has also been an ASEAN Peoples Assembly com-posed of representatives from various officially affiliated CSOsthat meets on an annual basis in step with ASEAN Summits 254

Peoples Assembly conferences conclude with the reading of a

247 CSO Guidelines supra note 230 19b248 Id at 99e249 Id at 111b250 ASEAN Charter Annex 2 Entities Associated with ASEAN251 See Working Group Meets with the A ICHR Discusses Engagements and Ac-

tivities WORKING GROUP FOR AN ASEAN HUMAN RiGirrs MECHANISM httpwwwaseanhrmechorgnewsworking-group-meets-aichr-engagements-and-activiteshtm (last visited July 25 2012)

252 See Charnovitz supra note 246 at 58-59 (discussing the relevance of NGOsgenerally in international governance) DANIl E RYAN INTEGRATING DEVEI-OP-MENT AND PUBLIC PARTICIPATION INTO IN-E7RNATIONAiL ENVIRONMENTAL Gov-ERNANCE A LATIN AMERICAN PERSPECrIVE ON A WoiuL ENVIRONMENTALORGANIZATION 7-8 (last visited July 25 2012) available at httpwwwfarnorgardocsartl6pdf (discussing NGO involvement and roles as civil society representa-tives in international governance)

253 See DANG TiI THU HUONG EXAMINING THEi ENGAGEMENT BIETWEEN

CivIL SOCIETY AND ASEAN IN THE ASEAN CIIARTER PROCEss 7-8 14 (last visitedJuly 25 2012) available at httpwwwgrincomene-book120420examining-the-engagement-between-civil-society-and-asean-in-the-asean-charter (discussing the di-alogue partner process with ASEAN and its overall parameters)

254 See Bonzon supra note 231 at 768 (discussing the ASEAN PeoplesAssembly)

2012] 275


common civil society statement to ASEAN heads of state255

These meetings were produced as a result of Track II dialogueswith ASEAN and thus have official recognition from ASEANbut have been criticized as largely symbolic exercises 256 Forthese reasons the majority of CSOs that have been excludedfrom Track II dialogues have coordinated initiatives to developalternative forums for civil society participation in ASEAN butlacking consistent support and official recognition fromASEAN257

As the entity charged with promoting and protecting humanrights throughout ASEAN it is critical that the AICHR set aprecedent for creating meaningful spaces for participation inhuman rights and environmental dialogue by civil society Theestablishment of direct dialogues with CSOs through the Charteris a positive step but a number of other approaches should beused to widen the scope and impact of public participation in pol-icy making First existing dialogue practices with ASEAN gen-erally should be both expanded and made more transparentLimiting input of written policy views or recommendations to of-ficially affiliated CSOs which have been selected by ASEAN istoo restrictive and currently excludes the participation of numer-ous smaller CSOsNGOs across the region As a general pre-sumption any CSO willing to follow established protocols shouldhave a right to be involved in decision and policy making proce-dures258 CSOs have a critical role in providing expert country-specific information on environmental or human rights informa-tion to the AICHR and ASEAN generally The AICHR shoulddevelop and codify formal rules of procedure that allow for thesubmission of written comment by any member of the public orentity into concerns about practices or policies within member-states that implicate human rights outcomes andor environmen-tal issues Formal submissions of information should be docu-mented and made publicly available 259 A regular reportingmechanism in which national CSOs provide annual reports to theAICHR and ASEAN on human rights and environmental issues

255 See Id (It is convened several days ahead of ASEAN Summits and adoptsa common statement of civil society organizations which is then read to the Headsof State during their Summit)

256 See Huong supra note 253 at 16257 See id at 16-18 (discussing the formation of the ASEAN Civil Society Con-

ferences) see generally Ramirez supra note 89 (discussing civil society developmentand engagement with ASEAN generally)

258 See ECoLOGIC supra note 243 at 246 (recommending wide inclusionamong NGOs in environmental governance activities within international bodies)

259 See Gemmill amp Bamidele-Izu supra note 229 at 15-16 (recommending vari-ous civil society participation approaches in international environmentalgovernance)

276 [Vol 29234


should be established Online mechanisms may offer efficientand transparent means for CSOs to provide written input to theAICHR about concerns which involve human rights TheAICHR could also establish national offices or online portals tocreate a permanent infrastructure for input by domestic CSOsand members of the public Special forums could be created spe-cifically for formal presentations of information and policystances by CSOs within the AICHR and ASEAN generally 260

with protocols codified in organizational rules Obviously meansto monitor follow-up by the AICHR and ASEAN in environ-mental and human rights decision-making activities should alsobe implemented

Outside of CSO participation in ASEAN decision-makingorgans a particularly good model for involving members of thelay public in environmental decision-making are EnvironmentalImpact Assessments 261 The Impact Assessment Model is aimedat documenting possible consequences of a development projecton surrounding communities 262 Environmental Assessmentshave already been employed in various Southeast Asian nationsusually for large development projects financed by regional orinternational development banks but also for domestic-financedoperations263 Human Rights Impact Assessments have likewisedeveloped and continue to be used in various contexts particu-larly in regards to international trade264 The AICHR could de-

260 See UNIfED NATIONs ENVIRONMENT PROGRAMME supra note 240 at 29(recommending similar strategies for inclusion of NGOs in the United Nations envi-ronment and development programs)

261 For discussions on the environmental impact assessment model and exper-iences see generally Ann-Katrin Baicklund Impact Assessment in the EuropeanCommission - a System with Multiple Objectives 12 ENVrL ScL amp PoLY 10771077-1087 (2009) Neil Craik Deliberation and Legitimacy in Transnational Govern-ance The Case of Environmental Impact Assessments 38 VIcrORIA U W IAuNGrONL REv 381 381-402 (2007) Patricia Fitzpatrick Multi-jurisdictional EnvironmentalImpact Assessment Canadian Experiences 29 ENVrL IMAcr ASSESSMENT REv252 252-60 (2009)

262 See generally JoHN GLAssON RIKI TiIRIVAL amp ANDREW CHADWICK IN-TRODUCION To ENVIRONMENTAL IMPAcr AssSSMENT 2-25 (3d ed 2005) (describ-ing overall parameters and objectives of environmental impact assessments)

263 See generally John Stampe Lessons Learned from Environmental ImpactAssessments A Look at Two Widely Different Approaches - The USA and Thailand8 J TRANSoISCIrLINARY ENVrTL STuD 1 (2009) (discussing the use of environmen-tal assessments in Thailand) Jennifer C Li Environmental Impact Assessments inDeveloping Countries An Opportunity for Greater Environmental Security 7-16(USAID Working Paper No 4 2008) (outlining the use of environmental impactassessments in Mekong River Delta nations)

264 See generally James Harrison Human Rights Impact Assessments of TradeAgreements Reflections on Practice and Principles for Future Assessments paper forthe Expert Seminar on Human Rights Impact Assessments of Trade and InvestmentAgreements Geneva (June 23-24 2010) (providing an overview of human rightsimpact assessments in the global trade context) Alessa Goller amp James Harrison

2012] 277


velop a regime for promoting the increased use of suchassessments at a domestic level among member-states Thiswould be particularly warranted because existing impact assess-ment practices in Southeast Asia are generally perceived to beweaker than in developed nations due to lack of training mini-mal commitment by national agencies and other factors265 Re-gional harmonization of impact assessments and training throughthe AICHR would help develop local governmental and non-governmental capacities to administer such assessments providethem with the visibility and credibility they deserve and wouldcertainly align with the AICHRs mandate to promote humanrights regionally

C JUSTICE

The final prong of the Aarhus Convention-access to justice-will be the most difficult of the three procedural rights to obtainwithin the current AICHR context because it directly implicatesthe need for a judicial review role which currently does not existin the AICHR Without a regional human rights court ASEANwould be faced with two significant structural problems Firstany adjudication of regional rights would be restricted to inter-pretation in national and sub-national contexts only amountingto a diffuse interpretation and enforcement of regionally-recog-nized rights Although it could be argued that the legal systemsand cultures of some ASEAN nations might be sufficiently pre-pared to formally adjudicate such claims it is difficult to imaginethe same happening in member-states like Myanmar or the dejure communist nations like Vietnam or Laos Secondly therewould be no regional-level appellate body to review either al-leged infringements by states or to adjudicate disputes betweenmember-states Unless the AICHR does develop itself into anadjudicative body or ASEAN develops a related entity with suchpowers any meaningful provisions related to access to justice willlikely remain unfulfilled

VI CONCLUSION

Undoubtedly the fact that a regional human rights body hasbeen created by ASEAN is significant in itself and it should be

Trade and Human Rights What Does Impact Assessment Have to Offer 8 HumRi-s L REV 587 (2008) (discussing human rights impact assessments generally andtheir value)

265 See generally John Boyle Cultural Influences on Implementing Environmen-tal Impact Assessment Insights from Thailand Indonesia and Malaysia 18 ENvriIMPAcr AssiEssMEwN Rivmew 95 (1998) (discussing institutional and social factorsthat undermine the effective use of environmental impact assessments in ThailandIndonesia and Malaysia)

278 [Vol 29234


seen for what it is a starting point 266 The Terms of Referencefor the AICHR indicate that ASEAN purposively intended thatthe commission develop and evolve over time by adopting anevolutionary approach that would contribute to the developmentof human rights norms and standards in ASEAN267 Givenlong-standing practices within ASEAN it can be expected thatany path towards evolving a regional human rights regime will bean incremental one At the same time the pace of developmentin Southeast Asia and accompanying environmental concernswill continue to grow It is therefore critical that a milieu be de-veloped for the communities and peoples of ASEAN to havemeaningful opportunities to participate in policy decisions thatimplicate the environment within a political context that is via-ble for the region

An agenda for growing practices that allow for greater pub-lic participation in ASEAN policy reflects the Associations newCharter Additionally the recent creation of the AICHR createsopportunities to centralize and develop procedures and practicesfor public participation in environmental policy as a function ofits mission as the regions human rights body Although it is un-clear if the procedural rights in the Aarhus Convention will berecognized by the AICHR the strengthening of participatorypractices would serve to at least be a positive interim develop-ment that could set the stage for a more effective human rightsenforcement mechanism within ASEAN Also fostering par-ticipatory practices within ASEAN is a positive end in itself par-ticularly in the context of promoting sustainable developmentEffectively engaging the public promotes informed policy deci-sion-making and can mitigate unequal distributions in both infor-mation and power268 Participation is a critical component oftransparency and accountability 269 From a pragmatic stand-point involving the public in environmental policymaking canlead to greater public acceptance of development projects andpre-empt social conflict wide-scale protests lawsuits or other

266 See Michelle Staggs Kelsall The New ASEAN Intergovernmental Commis-sion on Human Rights Toothless Tiger or Tentative First Step (Asia Pacific Issuesnumber 90 Sept 2009) (discussing the broad issues surrounding the creation of theAICHR) Hao Duy Phan The ASEAN Inter-Governmental Commission on HumanRights and Beyond AsIA PACiic BuiturmIN (EAsT-WEsT CENTInR WASHINGrONDC) (last visited July 25 2012) available at httpwwweastwestcenterorgsitesdefaultfilesprivateapb04O_1pdf (outlining the AICHR and noting its importanceas a significant step towards other developments in the area)

267 AICHR Terms of Reference supra note 189 $25268 See Ryan supra note 252 at 7 (discussing the importance of public partici-

pation within the context of sustainable development)269 See MAURER Er AL supra note 233 at 1-2 (discussing benefits of public

participation in multilateral and international governance)

2792012]

280 PACIFIC BASIN LAW JOURNAL [Vol 29234

adverse or disruptive developments that can result from not ef-fectively engaging impacted peoples and communities in a mean-ingful way270 Integrating such procedural practices intoASEANs new human rights machinery may not be the ideal out-come However it would amount to a significant step forward inASEANs slow march towards strengthening regional humanrights and would offer novel movement in integrating environ-mental concerns into its new rights-based framework

270 ElAs IN PRACTICE POTENTIAL LESSONS FOR HUMAN RIGHTS IMPACT As-SESSMENT (CENTER FOR INTERNATIONAL ENVIRONMENTAL LAw WASHINGTONDC) June 2010 at 5 (outlining benefits of public participation in environmentalmatters)

University of Nebraska - Lincoln

DigitalCommonsUniversity of Nebraska - Lincoln

2012

ASEANS GRADUAL EVOLUTION CHALLENGES AND OPPORTUNITIES FOR INTEGRATING PARTICIPATORY PROCEDURAL REFORMS FOR THE ENVIRONMENT IN AN EVOLVING RIGHTS-BASED FRAMEWORK

Tarik Abdel-Monem

Aseans Gradual evolution Challenges and Opportunities for Integrating Participatory Procedural Reforms for the Environment in an Evolving Rights-Based Framework

ASEANS GRADUAL EVOLUTIONCHALLENGES AND OPPORTUNITIESFOR INTEGRATING PARTICIPATORYPROCEDURAL REFORMS FOR THEENVIRONMENT IN AN EVOLVING

RIGHTS-BASED FRAMEWORK

Tarik Abdel-Monem

ABSTRACT

The Association of South East Asian Nations (ASEAN) isentering an interesting and important new phase in its evolutionHaving survived the cold war and Asian financial crisis of 1997the Association remains a uniquely successful yet enigmatic or-ganization comprised of ten major Southeast Asian countriesASEAN nations have successfully obtained rapid levels of eco-nomic and human development in the face of the regions politicaldifficulties yet at the risk of causing significant environmental deg-radation Now ASEAN is implementing two new structures thathave major implications for the state of civil society among itsmember nations-the ASEAN Charter and the ASEAN Intergov-ernmental Commission on Human Rights (AICHR) This Articleexamines ASEANs overarching framework for environmentalgovernance its normative culture of decision-making and how theCharter and AICHR could potentially offer significantly divergentpaths for the Association in light of its environmental and humanrights challenges It particularly examines how the limitations ofASEANs elite governing and decision-making norms constrainthe possibilities for an expansive civil society under the Charterand AICHR in these areas and the challenges of integrating envi-ronmental and human rights paradigms within this context Fi-nally this Article outlines some procedural reforms that ASEANshould adopt that might address its developmental concerns froma participatory standpoint in light of the parameters that constrainthe Associations normative realities

University of Nebraska Public Policy Center JDMPH (University of Iowa)E-mail tarikunledu - Phone (402) 472-3147

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B PARTICIPATION







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2012] 255










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C JUSTICE


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242 [Vol 29234















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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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2432012]




















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2012] 269







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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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2012] 269







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C JUSTICE


VI CONCLUSION




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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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222 Id at 2

2012] 269







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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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2012] 269







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C JUSTICE


VI CONCLUSION




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2012] 269







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B PARTICIPATION







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C JUSTICE


VI CONCLUSION




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Tarik Abdel-Monem


ASEAN'S GRADUAL EVOLUTION: CHALLENGES AND …

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