- Civil society and Indigenous rights groups are calling for greater public participation and transparency in the drafting process of what they say could be a pivotal agreement to protect environmental rights and defenders in Southeast Asia.
- The Association of Southeast Asian Nations’ (ASEAN) declaration on environmental rights was initially envisioned as a legally binding framework, but the scaling back of the level of commitment to a nonbinding declaration has raised concerns among observers.
- Groups are calling for an extension of the public consultation period, which lasted for only one month, and greater commitments to address key issues in the region, such as strengthening Indigenous rights, access to environmental information and justice, and clarifying mechanisms for resolving transboundary development impacts.
- If the treaty remains non-legally binding, its ultimate success will depend largely on the political will of each separate ASEAN state and on the continued efforts of civil society to hold their governments accountable.
Civil society groups in Southeast Asia are calling for greater public participation and transparency in the drafting process of a regional declaration on environmental rights, as well as stronger levels of commitment from states within the final agreement.
First tabled in 2021 by the 10-member Association of Southeast Asian Nations (ASEAN), the bloc’s declaration on environmental rights, known as ADER, aims to provide an unprecedented regional framework to push for the implementation of international environmental rights standards. These include the 2022 U.N. General Assembly declaration of access to a safe, clean, healthy and sustainable environment as a universal human right.
“Currently, many countries in Southeast Asia have been experiencing heat waves due to climate change, so this is an important moment for ASEAN member states to take genuine actions to address issues around the environment and climate change for the better of the people,” Duch Piseth, a lawyer at Cambodia-based Business and Human Rights Law Group, told Mongabay in an interview.
The working group tasked to formulate the agreement, comprising representatives of ASEAN states and civil society groups, has so far been through four rounds of talks. The latest negotiations on the current draft of the agreement were held in Jakarta from May 6-8.
Observers say the agreement could be a landmark instrument for environmental and Indigenous defenders across the region, particularly if it fully recognizes their critical role in combating the triple planetary crises of climate change, biodiversity loss and pollution.
Environmental and Indigenous defenders have been the target of a rising trend of repression across Southeast Asia in recent years, casting a grim shadow over their work to protect vulnerable habitats and communities. Defenders have increasingly experienced threats, attacks, intimidation and criminalization, including the levying of strategic litigation against public participation (SLAPP) cases — a type of lawsuit meant to silence the voices of both activists and experts alike in the region.
Many experts view the new agreement as a way to address this wave of repression. “We need some good international standards to be applied in our region so that we can use it as a tool to [hold] the state, and the private sector, accountable,” Sor Rattanamanee Polkla, a lawyer and co-founder at Thailand-based NGO Community Resources Centre Foundation, told Mongabay in an interview. “Often, the state supports the development projects much more than defending the voice of the people.”
However, sources say the agreement, which was initially envisioned as a legally binding framework similar to regional agreements in other parts of the world, such as Latin America and the Caribbean’s 2018 Escazú Agreement, has been “watered down” to become a nonbinding declaration. The current draft also contains some glaring omissions on issues of corporate accountability, climate-related mobility and Indigenous rights, groups say.
“This is a political statement and not a genuine legal commitment of the ASEAN [member states] to address environmental issues,” said Piseth, who has been collating feedback on the draft declaration from civil society groups in Cambodia. “Because they called it a declaration, rather than a binding agreement or regional treaty, it is not enough for communities to pressure or urge states to hold environmental violators accountable.”
The weakening of the framework means the decision on whether to transcribe articles in the agreement into domestic legislation and policy ultimately depends on the commitment and political will of each individual ASEAN member state. Therefore, if it remains in its current form, there will still be considerable advocacy work to be done by civil society to ensure the implementation of the agreement.
“We express our utmost concern over having a non-legally binding declaration,” says an online call to action led by the ASEAN Youth Forum for Climate Justice demanding stronger action and engagement on environmental rights through the agreement.
Max Han, a representative of the ASEAN Youth Forum for Climate Justice, and part of the ADER working group tasked to draft the declaration, said he hopes ASEAN’s national governments will be able to match the commitments already made in some other parts of the world. “When it comes to issues as significant as human and environmental rights, we must be firm in pursuing the highest standards aligned with international legal developments,” he told Mongabay by email.
Beyond calls for improved protection of rights defenders and the need for legally binding commitments, experts also told Mongabay the agreement could do more to address shortcomings on a number of other pressing environmental and human rights threats in the region, such as access to information from environmental impact assessments, access to justice mechanisms, public participation in environmental decision-making, action on resolving environmental issues that span national borders, and the extension of free, prior and informed consent to all communities affected by development projects.
Public input lacking
The draft declaration was scheduled to be finalized at the Jakarta meeting this week, after which it was due for submission to the ASEAN Intergovernmental Commission on Human Rights (AICHR) for further review and eventual adoption by ASEAN leaders at the bloc’s annual summit in Laos this October.
However, civil society groups have called for an extension to the public consultation period to facilitate more public input in the drafting process. This is important, they say, to ensure the final document reflects the needs of the whole of society, and not just the business and investment interests of individual states.
In particular, they point to the short time frame for consultation on the current draft, which was made publicly available for only a five-week period up until late April, which coincided with national holidays across many Mekong countries and a major religious holiday in the region’s Muslim-majority countries. Further, the draft was not available in regional languages and formats, making it hard for groups to engage in the discussion and final wording in a meaningful way.
For some, the short time frame for public consultation indicates a lack of genuine intent to include diverse voices in the final document. Sor Rattanamanee said that in Thailand, there was time for only one national-level consultation event in Bangkok, risking the exclusion of voices from other regions. Moreover, she said she’s doubtful that some other Mekong countries, such as Laos, Myanmar and Cambodia, were able to match even Thailand’s efforts.
“The consultation looks like a rubber-stamp process in some cases, to just show that it’s been done,” Sor Rattanamanee said. “We need to think about how to make the public participation wider.” To this end, multiple sources called for an extension to the public consultation period.
Indigenous participation overlooked
Another major concern is that the current draft doesn’t use the term “Indigenous peoples,” nor does it acknowledge their rights over their resources and territories. There are also no representatives of Indigenous peoples within the ADER working group. The Asia Indigenous Peoples Pact (AIPP), a Thailand-based regional network Indigenous peoples, has called on the ADER working group to rectify this.
Given that the draft declaration references the United Nations Declaration on the Rights of Indigenous Peoples, to which all ASEAN countries are signatories, the exclusion of Indigenous representatives from the ADER working group constitutes a violation of the declaration’s own principles, according to Lakpa Nuri Sherpa, environment program coordinator at the AIPP.
“It is very disappointing to observe that Indigenous Peoples, who have been relentlessly defending their land, forests, mountains, rivers, seas, and oceans against detrimental laws, policies, and actions that do not align with the objective to advance and implement the right to a safe, clean, healthy, and sustainable environment, are not given space in the AER WG members,” Sherpa told Mongabay in an email.
Sherpa added that many ASEAN states don’t explicitly recognize the distinct identity of Indigenous peoples, which can lead to power disparities whereby business interests take priority over the tenure and rights of Indigenous peoples. Inclusion of Indigenous rights, such as free, prior and informed consent and clear stipulations for the protection and access to justice for rights defenders are therefore paramount, he said.
Toward implementation
While the agreement’s wording and strength of commitment on paper remains to be finalized, there’s undeniably more work ahead for civil society to bring the ASEAN declaration into full force. Governments will need to be held to clear plans of action and implementation, according to Duch Piseth.
“It’s now up to the commitment of the ASEAN member states on which countries will take the lead in showing an example of best practices when it comes to the implementation post-declaration,” he said. “I think the public will need to continue to advocate for each country to propose an action plan for the implementation.”
For Sherpa, the final declaration must extend beyond what’s written on paper. “The paper declaration won’t do justice to all the time, energy, and resources spent in the process. With the ongoing triple planetary crisis of climate change, biodiversity loss, and pollution, ASEAN states need to take full responsibility for implementing the declaration in partnership with Indigenous Peoples and relevant actors in the society.”
Carolyn Cowan is a staff writer for Mongabay. Follow her on 𝕏, @CarolynCowan11.
Banner image: A member of Cambodia’s Indigenous Kuy population shows reporters where a well-connected rubber company encroached on his community’s land. Image by Gerald Flynn/Mongabay.
Related audio from Mongabay’s podcast: A look at an international agreement that could help protect environmental defenders in Latin America, highlighting the work of women leaders in Amazon conservation, listen here:
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