In its current form, the ASEAN Declaration on Environmental Rights lacks the necessary forward-thinking provisions for effective environmental and social safeguards. This needs to change as the people of this region deserve nothing less. Climate change, paired with aggressive development activities and their resulting environmental harms, continues to make the ASEAN region one of the most dangerous places for protecting human rights and environmental rights.
Since 2021, the Asian Forum for Human Rights and Development (FORUM-ASIA) has documented 330 cases of violations against environmental human rights defenders (EHRDs) in Asia, 80 percent of which have occurred in ASEAN. Many cases, however, go unreported. Cambodia, Indonesia, Vietnam, and the Philippines lead these numbers, with the latter nation being the deadliest for environmental activists. Communities and EHRDs continue to face attacks, threats, judicial harassment, and intimidation. This alarming situation calls for action at the regional level, underscoring the need for greater support and accountability.
ASEAN is currently developing the aforementioned Declaration – the region’s first-ever policy instrument on environmental rights – through the bloc’s Environmental Rights Working Group, which includes representatives of the relevant ASEAN and United Nations bodies, think tanks, and civil society organizations led by the ASEAN Intergovernmental Commission on Human Rights (AICHR).
The Declaration draws inspiration from various environmental rights instruments, such as U.N. General Assembly Resolution 76/300; the Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (Aarhus Convention); and the Regional Agreement on Access to Information, Public Participation, and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement). Once adopted, the Declaration will guide ASEAN member states in strengthening action and accountability related to environmental rights.
So far, the ASEAN Environmental Rights Working Group has met four times, most recently on May 6-8 in Jakarta, where it discussed stakeholders’ inputs following the release of the working draft for public consultation in March.
To help shape a more progressive declaration, FORUM-ASIA and two partner organizations held a two-day regional consultation in Jakarta in April with civil society groups working on environmental rights, which highlighted the following concerns.
Problems With the Current Draft Declaration
The draft, in development since 2021, has been significantly reduced from around 20 to seven pages, diluting or eliminating provisions on fundamental rights.
Like many ASEAN Declarations, the draft is plagued by vague language, thereby undermining states’ obligations. It also waters down safeguarding measures, including compliance and accountability among member states. The Declaration is poised to become another non-binding instrument, used as mere lip service to project “progress” on environmental rights while inaction and impunity continue on the ground.
The Declaration, however, also presents an opportunity for change. How? By making it legally binding.
It would not be the first time that such a milestone has been achieved. The 1998 Aarhus Convention became the first legally binding instrument on environmental democracy in the European Union, granting public rights to access information and to participate in environment-related decision-making. Meanwhile, in Latin America and the Caribbean, the 2018 Escazú Agreement became the first legally binding agreement with specific provisions for EHRDs, requiring states to create an enabling environment without intimidation, threats, and violence. ASEAN should follow suit, proving its capacity to be more progressive and participatory.
Ways to Improve the Declaration
Even in the absence of binding legislation, ASEAN member states can show their commitment to human rights and environmental rights by strengthening the Declaration’s language.
Although the draft has sections on the “recognition and protection of those promoting and defending environmental rights,” EHRDs and indigenous peoples are not explicitly mentioned. Such a deliberate omission is unacceptable. The Declaration must reference indigenous people’s rights, particularly regarding free, prior, and informed consent. Using intentional language around the protection of EHRDs – including land, indigenous, and community defenders – is crucial. Likewise, the need for greater representation of civil society in environmental protection and preservation must be explicitly recognized.
Furthermore, the Declaration must acknowledge the role of member states and non-state actors as violators of environmental rights and perpetrators of retaliation and reprisals against EHRDs. It must impose ownership on ASEAN governments and corporations towards preventive and corrective action. This extends to language around implementation and monitoring. It is not enough for ASEAN member states to simply “consider” doing something.
The draft does not include concrete language around cross-pillar cooperation and the involvement of different stakeholders. Most importantly, it does not specify who will be in charge of monitoring and implementation. The Declaration can draw inspiration from the Escazú Agreement’s establishment of a Committee to Support Implementation and Compliance, a group of seven independent experts, elected every four years, who are responsible for partnering with civil society and for reporting and advising states. Adopting something similar could help build a system of checks and balances and increase civil society’s trust in the process.
The Declaration needs to affirm international human rights standards and norms more strongly.
While the draft acknowledges international environmental frameworks – many of which have been signed or ratified by ASEAN member states, including the Stockholm Declaration 1972, the Rio Declaration 1992, the 2015 Paris Agreement, and the U.N. Resolution on the Right to a Clean, Healthy, and Sustainable Environment 2022 – subsequent provisions solely rely on ASEAN regional standards, thereby lowering the bar for the region’s governments.
In addition, the Declaration does not explain how the proposed “rapid” “dispute” resolution mechanisms will be operationalized. The Escazú Agreement again offers a useful model, providing for a “voluntary fund” to finance implementation based on contributions from States and other sources as needed. Without a similar provision, the Declaration risks being un(der)funded, with ASEAN member states potentially getting away with non-implementation by using “lack of resources” as an excuse.
The draft also lacks clear provisions on genuine and meaningful consultations with affected communities and EHRDs. Consultations should be integrated into every step, ensuring that the Declaration is inclusive and participatory.
Although the Declaration’s drafting process is propelled by the ASEAN Environmental Rights Working Group, which includes representatives of civil society and think tanks, it is heavily guarded by the AICHR, leaving little room for other stakeholders to influence a more progressive draft.
The draft circulated for public input in March was already watered down, indicating that civil society was brought in too late in the process and only after critical elements had already been removed.
Ways Forward
Following the Working Group’s call for inputs, different civil society groups held consultations and provided inputs to the draft. However, it is yet to be seen if such inputs are to be honored.
As the Working Group finalizes the draft, it is important to ensure that the insights and experiences of impacted communities and EHRDs are included in the Declaration. This is an opportunity to break the pattern of hollow ASEAN declarations. Creating a progressive document would set an example for future work.
Through the years, ASEAN member states have continued to deny us an enabling environment that would allow human rights and environmental rights to flourish. If our collective concerns and recommendations are still ignored, we must publicly reject the Declaration and advocate for one that is truly reflective of the needs of the region. It is time we stop accepting the mere breadcrumbs of effort that ASEAN governments are throwing at us.