By Setyawati Fitrianggraeni, Fildza Nabila Avianti and M Soufi Gemilang*
The Declaration provides ASEAN with the chance to establish itself as a frontrunner in advocating for and executing environmental rights by giving attention to the perspectives of Indigenous Peoples. However, the deliberation process has been lacking participation and involvement from Indigenous Peoples. Without the complete recognition, protection, and fulfillment of the rights of Indigenous Peoples, achieving environmental sustainability and climate justice is unattainable for everyone.
Since 2021, the ASEAN Intergovernmental Commission on Human Rights (AICHR) has recognized the need for countries across Southeast Asia to have a regional instrument that promotes environmental rights. AICHR then forms the ASEAN Environmental Rights Working Group (AER Working Group).[1]
The preparation of the Declaration was initiated by the AER Working Group in 2022. Without a doubt, the draft bill represents a pivotal milestone in ASEAN, as it would be the regional agreement in Southeast Asia that combines human rights and the environment. The Declaration provides a set of principles for ASEAN Member States to adhere in order to respect, promote, protect, and fulfill the substantive and procedural environmental human rights.[2] This signifies a significant advancement for the area considering the ongoing deterioration of the environment and the effects of climate change.
Initially, this document was envisioned as a legally binding framework, but during the first and second meeting, the forum agreed to make the document as a non-legally binding instrument.[3]
However, the AER Working Group, which consists of government and intergovernmental representatives, such as those from the ASEAN Intergovernmental Commission on Human Rights (AICHR), international agencies like the UN, and civil society, including representatives of youth, disability, and environmental defenders, notably lacks the presence of Indigenous Peoples.
Indeed the AER Working Group provided a feedback platform for impacted stakeholders to provide feedback, after publicly releasing the initial draft Declaration.[4] However, impacted individuals and communities were only given a month to understand the content and catch up with the deliberation process of the Draft, and offer their input and suggestions.[5] This is notwithstanding impacted individuals and communities who are not native English speakers, lack knowledge in laws and policies, reside in remote areas with limited information access, yet have high commitments in safeguarding the environment and experiencing direct consequences of environmental degradation.[6] The lack of time to review the draft may count to the lack of procedural rights in contributing to such significant policy.
This is in contrast with the draft Declaration, which provides that everyone has the right to participate in environmental decision-making.[7] The right to participate should be safe, meaningful, effective, and at the earliest possible stage before decisions are taken and while options are still open to decision preparation, and ASEAN Member States should “prepare special measures and procedures for people in vulnerable situations to ensure meaningful participation from them.”
Indigenous Peoples have protected the ecosystems and promoted biodiversity even before ASEAN was founded. They defend environmental rights, which mainstream media depicts as “vulnerable”.
*Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Fildza Nabila Avianti is former Senior Researcher in Legal Lab at Anggraeni and Partners, and Sri Purnama is researcher in Legal Lab.
Footnotes :
[1] Indonesian Center for Environmental Law, ‘Press Release: Call to Action on Environmental Rights in ASEAN’ <https://icel.or.id/id-id/kerja-kami/kabar-/siaran-pers/v/press-release-call-to-action-on-environmental-rights-in-asean> accessed on 25 July 2024.
[2] Association of Southeast Asian Nations (ASEAN), ASEAN Declaration on Environmental Rights Draft, AER WG/3M/03/Add.1 (7 March 2024 version), <https://static1.squarespace.com/static/6607a5d3cd48720d26278ca5/t/660b7348cdb78a5c6c174d0f/1712026441260/ASEAN+declaration+on+environmental+rights_3-7-24.pdf> accessed on 24 July 2024.
[3] ICEL Press Release.
[4] Minh Tran, Dayoon Kim, ‘The ASEAN Declaration on Environmental Rights: Whose Rights and What Rights?’ <https://www.sei.org/perspectives/asean-declaration-environmental-rights/> accessed on 23 July 2024.
[5] Ibid. See also Matthew Reysio-Cruz, ‘ASEAN Environmental Rights Declaration Needs Transparency’, (Human Rights Watch 30 June 2024), <https://www.hrw.org/news/2024/06/30/asean-environmental-rights-declaration-needs-transparency>
[6] Ibid.
[7] ASEAN Declaration on Environmental Right, Objective (3).
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