In Search of Bottom-Up PeopleCentered ASEAN Community: Negotiating the Status of Minorities in the region

Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights, Human Rights Working Group, E-mail: wahyuningrum@gmail.com

Introduction
Southeast Asia is characterized by great ethnic, cultural and religious diversity, and is home to a large number of migrants from China and India, dominant groups of Malays and Indonesians, as well as indigenous peoples, hill tribes and many minority groups. Vietnam, for instance, has 54 official ethnic groups. Many ASEAN countries seem to aim at minimizing diversity within the country, thereby developing programs that have the objective of assimilating and controlling minorities into the norm of majorities. At the same time, ASEAN has been silence in recognizing their existence in its process of community building. Minorities are rather seen as hindrance to development progress or as a threat to politicalsecurity by countries member of ASEAN.

 In 1993, the Ministers and representatives of Asian states, meeting in Bangkok in the context of preparations for the World Conference on Human Rights, adopted a Declaration, known as The Bangkok Declaration. One of the commitments including in the Declaration was the importance of guaranteeing the human rights and fundamental freedoms of vulnerable groups such as ethnic, national, racial, religious and linguistic minorities, migrant workers, disabled persons, indigenous peoples, refugees and displaced persons (A/Conf.157/Asrm/8, A/Conf.157/ Pc/59, 7 April 1993) However, in subsequent documents of ASEAN, no reference was made to minorities or indigenous peoples. In 2008 the ASEAN Charter proclaims the principle to uphold the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States. This proclamation calls for an assessment of ASEANs policy in compliance with international law in regard to the protection of minorities and indigenous peoples, on the one hand, and the policies and laws of member states of ASEAN, on the other. ASEAN continues to emphasize on promoting cultural diversity in its officials document. ASEANs motto, further tempers the optimism with regard to the protection of diversity. The motto, One Vision, One Identity, One Community, indicates that the emphasis of ASEAN is on strengthening unity rather than on promoting diversity.

RIGHTS & CULTURE in the 2000 ASEAN Declaration On Cultural Heritage

Para 3 - FOUNDATION FOR A REGIONAL ORDER
A Regional order is based on equal access to cultural opportunities, equal participation in cultural creativity and decision-making, and deep respect for the diversity of cultures and identities in ASEAN, without distinction as to nationality, race, ethnicity, sex, language or religion;

Para 4 REGIONAL VISIBILITY

Cultural creativity and diversity guarantee the ultimate viability of ASEAN societies;

Para 5 HUMAN DEVELOPMENT

Cultural rights and freedom are inherent in the human person who is the main agent and consequently should be the principal beneficiary of, and participate actively in the realization of these heritage, expressions and rights;

Para 6 FORMATION OF REGIONAL IDENTITY

Cultural traditions are an effective means of bringing together ASEAN peoples to recognize their regional identity,

Para 7 TOOLS TO UNITE PEOPLE AROUND SOUTHEAST ASIA

Cultural rights draws sustained inspiration from the deep historical, linguistic, and cultural unity and linkages among Southeast Asian peoples

How Culture has been used to frame rights in ASEAN?

As a limit to the realization of rights:
The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society (Para 8 AHRD)

To signify the formation of regional identity/ challenge universality

At the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds. (Para 7 AHRD) To promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities (Article 1.4 TOR AICHR)

How Culture has been used to frame rights in ASEAN?

Inherent part of the human rights
Every person has the right, individually or in association with others, to freely take part in cultural life, to enjoy the arts and the benefits of scientific progress and its applications and to benefit from the protection of the moral and material interests resulting from any scientific, literary or appropriate artistic production of which one is the author. Article 32

to decide who can come in/out indigenous people/ ethnic minorities, refugees, Rohingya To lightened the debate into the least common denominator

Definition
No legal definition of the term minority has been agreed in international law. Individual States recognize a wide range of groups domestically as minorities based on shared ethnic, cultural, religious and/or linguistic characteristics. In the absence of a formal definition, the existence of a minority group can be assessed using objective and subjective criteria;
Objective criteria focus on the shared characteristics of the group such as ethnicity, national origin, culture, language or religion. Subjective criteria focus on two key points: the principle of selfidentification and the desire to preserve the group identity.

The size, access to power, vulnerability to exclusion and geography of the group matters can be the factor in determining whether minority protection is required. A group could constitute a majority within the country but become a numerical minority within a sub-region.

Indigenous Peoples Rights and Minority Rights

Indigenous Peoples rights:
Self-determination Collective land rights Use of natural resources and territories Practice customary law Environmental conservation Protect traditional knowledge, intellectual property, and cultural heritage Free, prior and informed consent to measures that affect them or their lands and territories

Minority rights:
to exist to non-discrimination to protection of their identity to participate in public life and in decision-making that affects them

 The Constitutions of the Philippines, Thailand, Laos, and Indonesia recognize the right of indigenous people, ethnic group, tribe, and traditional community to conserve local custom and wisdom. However, each country offers different definition and understanding regarding minorities. Several Southeast Asian states seem to use their large ethnic diversity, and the accompanying lack of conceptual clarity, for political purposes.
Laos and Vietnam, for instance, have a highly developed system of ethnic classification, which they use for census purposes. Moreover, the main focus of official policy is on the development of national unity by assimilation rather than by providing separate or autonomous structures.

Indigenous peoples and minorities, often have similar concerns, particularly from an economic, social and cultural rights perspective, and may be competing for the same government resources or land.
States programs and policies on minorities and indigenous peoples related to development assistance, healthcare and education are often a cover for states for (forced) acculturation, assimilation and resettlement and often contribute to the degeneration of minorities and indigenous peoples.

 The (forced) resettlement and displacement of minorities and indigenous groups are often the result of the ambition of Southeast Asian governments to develop from an economy based on agriculture towards an industrialized economy.
Exploitation of natural resources such as oil, timber, rubber and minerals and has massive implications for indigenous people who depend on the same resources for their living.. Plantations are established and dams are built, causing the removal or marginalization of these populations.

(Forced) resettlement of the indigenous peoples and minority groups from the forests and mountains also occurs, and is often justified by governments with the protection of the environment, national development and national security.
Environmental protection in particular is often brought up as a justification for the resettlement of indigenous peoples, as it is argued that the peoples way of living is detrimental to the environment. Another form of resettlement is the movement of members (often poor peasants) of the dominant group to areas in which the ethnic minorities generally live, which is justified by reasons of over- population of the areas in which the majority lives and by the claim of giving these peasants a better future.

Conclusion
lack of formal recognition of, and respect for, the identity and culture of minority often results in a denial of the rights to citizenship, to effective participation in government and to the recognition of their distinctive histories, cultures and lifestyles, notably in the context of national development policies. While promoting culture and its diversities, ASEAN does not automatically link it with the rights of minorities. This article argues that ASEAN is caught in the middle between the idea of holding universal values as its common norms on one hand, and dealing with national interests and political preference on minorities on the other hand.

Unless ASEAN put an end in nourishing the suspicion over the specific rights of the minorities, the regional project of being a more organized and cohesive community will not be successful.