An opinion piece by James Tager, a Satter Fellow from Harvard Law School currently working with the ICJ on research focusing on business and human rights in the Asean.
This week, the Asean People’s Forum (APF), an annual convergence of civil society groups coming from all Asean countries, will be held in Kuala Lumpur.
For several days, Kuala Lumpur will be hosting discussions on a number of broad issues of concern, including human rights, development, trade, and the environment.
One way in which the APF is significant is that it constitutes one of very few opportunities for civil society voices to be heard at the regional level.
Asean has always maintained a rather dismissive and condescending approach when dealing with civil society organizations (CSOs).
This approach is very much apparent in the closed and opaque manner in which the Asean Intergovernmental Commission on Human Rights (AICHR) approaches its work.
This has been evident in its development of important regional human rights instruments, such as the Asean Human Rights Declaration (AHRD) and the various thematic studies the AICHR promised to undertake for each year of its Five-Year Work Plan.
Marginalization of civil society has also been reflected in the recently adopted, but not formally released, Guidelines on the AICHR’s Relations with Civil Society Organizations.
One of the AICHR’s thematic studies, on the question of corporate social responsibility, was initiated in December 2011.
Civil society groups, including some with expertise in this area, made queries to the AICHR and offered to contribute to the development of the study.
But with no AICHR procedures in place for CSOs to comment, these offers were essentially ignored.
The development of the study was kept under wraps, with meetings on this topic largely involving handpicked experts, some of whom were not independent.
The resulting Baseline Study on Corporate Social Responsibility and Human Rights in Asean was completed in June of 2014.
It has since been released to the public and posted on the AICHR’s website.
The released document exposes the results of the AICHR’s dismissive approach to the views of civil society.
The study is disappointing in its lack of meaningful content. Several of its aims – most of which were vague to begin with – are either only vaguely addressed or seemingly forgotten, including any discussion of ‘mechanisms allowing effective access to remedy’ for victims of corporate rights abuses.
There is little critical evaluation of the effectiveness of corporate or governmental policies: at one point, the reader is reassured that although one company has been “frequently accused of being a human rights violator,” the company has a good human rights policy described on its website.
The study’s individual country reports may be more substantial, but that is impossible to know as – almost a year since the study was reportedly completed – they have still not been publicly released.
This lack of transparency is astonishing for an intergovernmental regional human rights organization.
Building a foundation on air?
Reading this document, one could forget that entire Asean communities have had their lives and livelihoods damaged by corporate projects, from hydropower dams to coal mines to deforestation.
The AICHR claims that this study could serve as “the foundation for the establishment of a common framework to accelerate the promotion of corporate social responsibility and human rights in the region.”
To build a human rights framework on this foundation, however, is to build on air.
This work did not have to be an empty exercise for the AICHR, which could have built upon well-developed research such as two reports released by civil society groups: The Asian Forum for Human Rights and Development’s (Forum-Asia) Corporate Accountability in Asean: A Human Rights-Based Approach, and the Human Rights Resource Centre’s (HRRC) Business and Human Rights in Asean: A Baseline Study.
The AICHR’s baseline study itself makes repeated reference to these two reports, but refrains from affirming their sensible recommendations.
The two reports contain page upon page of specific and comprehensive analysis that the official AICHR study appears to lack.
These civil society reports also address the framework of corporate accountability, not just voluntary corporate social responsibility.
If the AICHR wants to create a common framework for human rights in the region, whether for corporate behavior or for other fields, it must collaborate with civil society groups that are already doing this important work.
But if the AICHR decides to keep CSOs at arms-length – rather than invite them to be partners in promoting and protecting human rights within Asean – there will surely be more examples of AICHR studies which say little and which mean less.
Malaysia recently took a significant step in developing a national-level policy on business and human rights, with the launch of its Strategic Framework on a National Action Plan on Business and Human Rights.
One notable aspect of the Framework is its provisions identifying how civil society groups can be actively involved in developing the National Action Plan, by using the document to guide their own actions and by providing input to help shape the Plan’s policy recommendations.
Malaysia’s acknowledgment of the positive role that civil society plays in developing and strengthening human rights policies should be commended.
But more than this, Malaysia should use its time as Asean chair to bring this acknowledgment to a regional level.
Malaysia’s chairpersonship includes this opportunity to set a strong foundation for the next several years of human rights protection and promotion.
Involvement of civil society, and commitment to a significant agenda, will help ensure that this foundation is solid.