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on Humanitarian Intervention
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2

Atty. Damcelle Torres-Cortes

I. INTRODUCTION
The post-cold war period ushered a new world order that favored what
Friedman (2005) considers “democratic, consensual, free, market-oriented
governance.” These, coupled with rapid technological innovations, have madethe world, as he coined it, flat. Globalization challenged barriers in various
spheres – economic, social, cultural, political, and ideological.
3

The seemingly borderless state, however, gave rise to its own anti-thesis.

The rapid diffusion of foreign ideas brought with it an intensified yearning for
cultural identity demonstrated by increased regionalization and nationalization.
Regional blocs and alliances were formed to ensure economic, political, andsocio-cultural security against gargantuan world forces. Meanwhile, states morethan ever assert their authority and personality as the primordial actor in the
global arena.
This paper situates the discussion of humanitarian intervention amidst theinterplay among trends of globalization, regionalization, and nationalization(Kacowicz, 1998). Globalization and nationalization play a tug-of-war. On one
end is the growing interconnectedness and interdependence among nations that
tend to blur purely domestic from international concerns; hence, the scenario of
humanitarian intervention where a foreign government sends its troops toprevent unabated killings resulting from another country’s internal conflict. On
the other end is the pressing appeal for nationhood; thus the corollary claim forsovereignty and non-interference in local affairs. Interestingly, regionalization
comes in, not as a middle ground, but as a complex yet unique context within
which globalization and nationalization operate.

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This paper looks at the concept of humanitarian intervention as ademonstration of the globalization-nationalization tension, within a regional
backdrop. Regionalization, as exemplified by the establishment of the
Association of Southeast Asian Nations (ASEAN), promotes a distinct system.
The ASEAN has espoused the “ASEAN Way” of managing its affairs, which
includes a homegrown approach to human rights (Drummond, 2010). For
purposes of this paper, the recently established ASEAN Intergovernmental
Commission on Human Rights (AICHR) serves as the platform for the ASEAN’s
stand. The AICHR as a regional human rights body is of particular significancegiven its mandate to promote and protect human rights within the ASEAN, andthe mixed reactions of disappointment and promise that it has elicited fromadvocates.
Specifically, the paper examines the concept of sovereignty vis a’ vis theASEAN’s evolving construction of human rights through exploring both theprospects and limits of humanitarian intervention within the AICHR
framework. I begin by offering a working definition of humanitarian
intervention, and identifying its related issues. The paper likewise presents a
brief history and mandate of the AICHR in order to draw out the ASEAN’s viewof humanitarian intervention. As part of the conclusion, I toss somerecommendations on how governments, civil society, and the academe canproactively engage the AICHR towards a deeper and broader discourse on
humanitarian intervention, and ultimately towards strengthening human rights
protection in the region.
As a caveat, it must be emphasized that this treatise does not attempt toassess the value and effectiveness of the AICHR, which as a new institution
must be given a chance to grow and find its place of importance in fulfilling its
mandate. Neither does this work intend to present each ASEAN member state’s
position as regards humanitarian intervention. Simply put, this work presents a
Southeast Asian perspective of humanitarian intervention through the lens of
the AICHR.

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II. HUMANITARIAN INTERVENTION:
KEY CONCEPT AND ISSUES
Humanitarian intervention has been a controversial subject in international
debates for the past fifteen years (Welsh, 2006). The discussions give rise to ahost of interrelated and oftentimes contradicting issues of sovereignty, noninterference, self-determination, national interests, and non-use of force on one
hand, and of human rights, shared humanity, security, and moral obligation on
the other. Some scholars thus treat the concept of humanitarian intervention
with ambivalence (Lu, 2007), not only because of the nature and complexity of
the issues it raises, but also because of the highly politicized context within
which it is applied.
But before delving into humanitarian intervention as a problematique, it isimperative to have a leveled off understanding of the concept. This section offers
a working definition of humanitarian intervention and devotes special attention
to the issue of its legitimacy, in light of the ASEAN’s predilection towards noninterference.
A. Key concept
For a more basic appreciation, the component words “humanitarian” and“intervention” deserve independent treatment. Di Prizio (2004) recognizes that
there is no universally accepted definition for either term. The word
“intervention” generally means to “interfere, usually through force or threat of4

force, in the affairs of another nation.” Di Prizio funnels this down to themanner in which the action is undertaken. He posits that intervention involves
coercion or the use or threatened use of force. Coercion implies lack of consent
from the state where the intervention will be undertaken. Forcible action isusually carried out through armed or military intervention.
The term “humanitarian,” on the other hand, opens a multitude of“motivations, intentions, constituencies, funding lines, mandates, operational
principles, expectations” from among a wide range of actors including“academics, practitioners, policymakers, targeted populations” (Di Prizio, 2004:
5). But these proponents agree on humanitarianism’s chief objective, i.e. to150

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prevent the death and misery of innocent people. In other words, at the crux ofwhat is humanitarian is the existence of no less than the human being. Di Prizio
interestingly observes that while the object of humanitarianism has remained
the same, humanitarian intervention has evolved to adjust to changes in thesocio-political landscape. What started out as emergency aid assistance in timesof war or natural disasters and calamities, now incorporates assistance to people
to promote general “security, peace, development, and justice” (Di Prizio, 2004:
5).
In line with the foregoing and in the context of an international relations
discourse, this paper subscribes to Lu’s (2007: 137) definition of “humanitarian
intervention” as “the use of military force by states against a sovereign authority
for the purpose of human protection.” The definition combines the elements ofmanner of intervention (i.e. coerced military action) and purpose (i.e. to protect
5people), with the latter as justification for the former.
B. Issues“Humanitarian intervention” is a term laden with complexities. Somescholars question the existence of such oxymoron: can a coerced military action
ever be humanitarian? (Holzgrefe and Keohane, 2003) The concern stems fromthe basic concept of intervention as an external influence, which at the outset
6

contradicts the United Nations (UN)-recognized principle of state sovereignty.

While discussing sovereignty can lead to convolutions as to its extent andlimitations, its real-world application by heads of state focuses on the right ofeach state to do “entirely as its government pleases” (Shue, 2004: 13). Assertingand protecting this right leads to its corollary concept of non-interference, whichbars states from meddling with the internal affairs of its equally sovereign
7

counterparts.

History reveals that since the days of the chieftains, monarchs and the Cold
War, state sovereignty has never enjoyed complete deference. The international
community, through the UN, however condemned assaults to sovereignty
carried out in the name of territorial expansion, largely as a bitter lesson from
Second World War. Yet sovereignty and non-intervention operate within aGlass half empty or half full?
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larger grey area of international politics that through the decades continuallycreate nuances in the application of such norms.
As mentioned in the paper’s introduction, globalization blurred the publicprivate divide among nations, resulting to a more complex web of international
relations. Welsh (2004: 2) traces the more tolerant view of sovereignty and nonintervention to the following global developments: “the weakness and (orcomplete failure) of state structures in many conflict-ridden societies, which
provides opportunity for criminal activity, arms proliferation, and terrorism; theincreased vulnerability of civilians in the context of civil conflict, and theintensification of refugee flows; the ‘CNN effect’, in which global andinstantaneous access to information heightens popular awareness of humansuffering; the strengthening of human rights norms and proliferation of humanrights organizations; the strengthening of international institutions, regionaland global, which increases the possibility of states acting on a multi-lateralbasis; and the search by Western governments for new forms of politicallegitimacy and ‘moral authority’ to replace the ideologically driven agenda of thecold war.”
The battle cry for democracy, and the consequent spread of human rights
after the fall of communism provided greater impetus for challenging thebounds of sovereignty. Recognizing sovereignty as a right of a state, Shue (2004:
15) draws a convincing argument regarding restrictions to sovereign powers:“Thus, if sovereignty is a right, sovereignty is limited.
Sovereignty is limited because the duties that are constitutive of
the right, and without which there can be no right, constrain theactivity of every sovereign belonging to international society. The
deeper reason why the principle of non-intervention protects theprinciple of sovereignty, as Vincent said, is that non-intervention
imposes duties that also constrain the sovereignty of the states thatbear the duty. It protects mine by constraining everyone else’s andprotects everyone else’s by constraining mine. This is what rights
do, where there are rights, there are duty-imposing rules.”

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Just like any right, sovereignty carries with it inherent responsibilities,
including the duty to protect people. When a state reneges on that duty, theunderlying existence of the sovereign is put to question. Lu (2007: 3) eloquently
explained this justification for intervention:“Walzer relaxes the legalist paradigm of non-intervention,
asserting that states can in certain circumstances justifiablyintervene in the internal affairs of other states. The moral basis forsuch intervention, in cases of secession and counter-intervention,and in response to acts that shock the conscience of humankind,
however, lies in the ideal of the self-determining community itself.
Even interventions to halt gross human rights violations are
justified because such interventions do not threaten communal
integrity or autonomy since ‘when a government turns savagely
upon its own people, we must doubt the very existence of a politicalcommunity to which the idea of self-determination might apply’.”

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Indeed, there has been a growing acceptance among scholars andpractitioners that sovereignty is not absolute, and that non-interference andnon-intervention are subject to exceptions. As earlier discussed, whileintervention initially came in the form of relief assistance to address human
strife brought about by natural disasters, the concept has evolved to allow for
external armed action to protect people suffering as a result of man-madedisasters of civil conflict and later, of human rights violations.
Now that the limits to sovereignty and non-interference have been agrowing consensus among states, the more important question lies: when thenis intervention justified? Advocates of humanitarian intervention would answer
that the intervention to be acceptable must be humanitarian. Humanitarianismis the legitimizing force for intervention. Welsh (2004) initially explains thatintervention becomes humanitarian only when both the motives and outcome
are humanitarian; the purpose and end result must be for the protection ofpeople. Such standard remains relative and difficult to grasp so Welsh (2004:35), following the Just War tradition, proposes four requirements that must be
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First, there must be a just cause, or a supreme humanitarian
emergency. This criterion attempts to address the criticism against
selectivity in intervention. Welsh notes that the basis is not simply
figures or the number of people affected, although this may be anindication of the magnitude of human rights violations. “A supreme
humanitarian emergency exists when the only hope of saving lives
depends on outsiders coming to the rescue.” Welsh however
qualifies that a nation can intervene as a preventive measure andneed not wait for the extreme situation if there is clear evidence ofan “impending massacre.”Second, use of force must be done as a last resort. This puts theburden on states to exhaust existing non-violent remedies toaddress the situation before employing military action. Welsh
agrees with Bazyler (1987) that non-exhaustion may only be
10justified if delay would result in “irreparable harm”.

Third, intervention must be proportional. This means that the“level of force employed [should] not exceed the harm that it isdesigned to prevent or stop”. The criterion calibrates the extent ofmilitary action with the nature and enormity of the situation.
Fourth, the use of force must achieve positive humanitarianoutcome. The last standard refers to the “twin requirements of
rescue and protection”. Rescue ensures that the humanitarian
objective to save lives is met, while the protection aspect gives along-term assurance that human rights abuses will no longer
continue because their underlying causes have been properly
addressed.
Welsh’s standards may provide a handle for understanding and evaluating
the validity of a humanitarian intervention. But a realistic view shows that evenwith such standards, there can be no purely objective assessment of whether anintervention is indeed humanitarian or not.

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In 2001, amidst continuing debates about humanitarian intervention, theInternational Commission on Intervention and State Sovereignty published the11report “The Responsibility to Protect”. This report was instrumental in the
adoption of Heads of State and Governments in 2005 of the “Responsibility toProtect” (R2P), “an internationally agreed upon concept for jointly dealing withfour egregious crimes: genocide, war crimes, ethnic cleansing, and crimes
against humanity” – expressed in paragraphs 138 and 139 of Outcome
Document of the World Summit in 2005.

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As the latest UN issuance onhumanitarian intervention, R2P attempts to lay down the basic principles onintervention in the name of protecting citizen’s right. While this was a welcome
development for it provides a more up-to-date UN-issued statement on
humanitarian intervention, many find the statements to be insufficientguidance for operationalizing foreign military action.
Ultimately, humanitarian intervention finds basis in the Chapter VII of the
UN Charter which authorizes the Security Council to be responsible forcollective measures, including allowing the use of force, in situations where
there is a threat to international peace, breach of peace, or an act of aggression.
But experience reveals that “similar atrocities have not always received equal
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attention even when occurring in the same part of the world.” Bartlett cites as
an example that the UN allowed humanitarian relief missions in Somalia but
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not in Rwanda.

Realpolitik is at play. Humanitarianism as a hegemonic tool may be a meremask for selective self-interests of states and power blocs to enhance security
and economic positioning, among others. Indeed, to intervene or not to intervenetranscends the question of saving lives, but intricately involves the intervening
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state’s economic and political goals.

Accordingly, humanitarian intervention has never been a welcome concept
among all nations. The afore-discussed issues regarding sovereignty and thepolitics behind external military actions make state leaders and scholars
circumspect about humanitarian intervention.

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III. THE ASEAN INTERGOVERNMENTAL COMMISSIONON HUMAN RIGHTS (AICHR)
A. A brief history
The signing of the Universal Declaration of Human Rights in 1948 signaled
the beginning of the call for a common understanding of guarantees andprotections for peoples among nations. Southeast Asian countries have not beenspared from this call.
But the response from the ASEAN was not immediate. For one, the ASEAN
as the regional body of today was not yet organized then. Its predecessor was
the 1961 Association of Southeast Asia (ASA) composed of only of Malaysia,
Thailand and Philippines. A new group, MAPHILPINDO, composed of Malaysia,
Philippines and Indonesia overtook ASA in 1963 (Solidum, 2003). In 1967, the
MAPHILINDO trio included Singapore and Thailand to constitute the ASEAN
as a regional association for cooperation. The membership expanded in 1984
when Brunei joined, followed by Vietnam in 1995, and by Laos and Myanmar in
1997. In 1999, Cambodia became the ASEAN’s newest Member State. The tenmember organization was formally organized in 2007 under the ASEAN
Charter.
Simultaneous with the development of the ASEAN was the unfolding of ahuman rights understanding among Southeast Asian Nations. Ryu andOrtuoste (2011) categorize the evolution of the human rights discourse inSoutheast Asia to three periods. The first period covers the years 1967 to 1989,
which Ryu and Ortuoste (2011: 13) call the “period of rejection and neglect ofhuman rights.” This apathetic stance is traced to the Southeast Asians’
preoccupation with “domestic agenda such as economic development and regime
stability.” Authoritarian rulers prevailed in the region at that time. Hence, the1967 Bangkok Declaration, the first official document in ASEAN history, madeno mention of human rights.
The second period from 1989 to 1997 was marked by an initial recognitionof human rights qualified by the Southeast Asian context – “a regional stance onhuman rights” (Ryu and Ortuoste, 2011: 13). This time, human rights haunted

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Southeast Asia with the 1991 Dili Massacre and through international concern
expressed in the 1993 Vienna Convention. Significant during this period was theASEAN’s assertion of its own notion of human rights --one that is based on
Asian values, culture and history as opposed to the concept imposed by theWest.
In 1993, the idea of a regional human rights mechanism was firstarticulated in an official ASEAN document. The Final Declaration of theRegional Meeting for Asia of the World Conference on Human Rights expressed“the need to explore the possibility of establishing regional arrangements for thepromotion and protection of human rights in Asia.”

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The evidently tempered

language of the declaration referred to a mere recognition of a need, and not
directly to the creation of a human rights body.
The Vienna Declaration and Programme of Action adopted in June 1993 at
the World Conference was a half step ahead of the Bangkok Declaration. In
Vienna, the sentiment was “to consider the possibility of establishing regionaland sub-regional arrangements for the promotion of human rights where they
do not already exist.” Foreign Ministers made a follow through in the ASEAN
Ministerial Meeting held a month later. Member States “consider[ed] theestablishment of an appropriate regional mechanism on human rights.” Thelanguage here was no longer to consider a mere possibility but to consider thecreation of the body. The Asian Inter-Parliamentary Organisation (AIPO)
expressed a more promising commitment in its Kuala Lumpur Declaration on
Human Rights in September 1993. The AIPO acknowledged the mandate: “it is
the task and responsibility of Member States to establish an appropriate
regional mechanism on human rights” (Drummond, 2010).
Chalermpalanupap (2008), Special Assistant to the ASEAN Secretary
General, remarked that the establishment of the AICHR in part slowed down in1995 as a result of political diversity brought about by the inclusion of four new
member states in the ASEAN: Vietnam, Laos, Myanmar, and Cambodia. These
countries have appalling records of human rights violations, and have beenreluctant to support the creation of a regional human rights body.

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Nevertheless, the ASEAN’s formal commitments fueled a stronger demand
for a regional human rights body from civil society. Region-based organizations
such as the working Group for an ASEAN Human Rights Mechanism, the Asian
Forum for Human Rights and Development (FORUM Asia), Solidarity for Asian
People’s Advocacy Task Force on ASEAN and Human Rights, among others,
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were joined by national human rights institutions of ASEAN Member States,

and members of the academe to organize consultations and fora to consolidate
inputs as to the form, mandate, and other details regarding the establishment of
the regional human rights body. (Drummond, 2010)
This led to the third stage (1997 to present) in the ASEAN’s evolutionary
process. Human rights finally found its way into the ASEAN official agenda.
The ASEAN Charter of 2007 did not only formalize the overall regional
partnership among Southeast Asian nations. It also sealed the commitment tocreate a human rights body. The Charter confirmed the ASEAN’s pledge topromote and protect human rights in its preamble, statement of purpose andprinciples. Importantly, the Charter’s Article 14 mandated the establishment ofa regional human rights body:“14.1. In conformity with the purposes and principles of theASEAN Charter relating to the promotion and protection of humanrights and fundamental freedoms, ASEAN shall establish an
ASEAN human rights body.
14.2. This ASEAN human rights body shall operate inaccordance with the terms of reference to be determined by the
ASEAN Foreign Ministers Meeting.”
Participants in and observers of the drafting process admit that Article 14
was among the most contentious provision in the making of the Charter (Koh, etal., 2009). Article 14, though considered still very conservative and deficient byhuman rights groups, was a form of victory for advocates who witnessed thenegotiation process. Article 14 marked the incorporation of human rights in the
ASEAN’s official agenda (Ryu and Ortuoste, 2011). But the Charter was only
the first hurdle. The greater challenge was the drafting of the Terms of158

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Reference (TOR) that will spell out the specific powers and functions of the newbody.
A High Level Panel (HLP) composed of academics and diplomats appointed
as representatives of ASEAN Member States was tasked to formulate the TOR.
The HLP’s work began in July 2008. A critical subject matter of discussion was
the form and mandate of the body. It must be noted that the Charter chose tocall the regional mechanism a body, without specifying whether it is a forum, acommission or a court. In the end, the HLP adopted the term “commission” as acompromise. It is not as loose and disempowered as a forum, which only serves
as a venue for discussion. But neither is it a powerful tribunal like a court that
can take cognizance of cases and pronounce verdicts, which Member States were
not yet ready to deal with. The name of the commission also carried theadjective “Intergovernmental”, emphasizing the consensual nature of decisionmaking within the body.
As to the mandate, the consensus was for more human rights promotion
and a toned-down human rights protection function, as will be shown in thediscussion of the TOR’s main provisions below.
B. Feature provisions
This section will center on the TOR provisions that have considerable
implications on the way the ASEAN understands humanitarian intervention.
For focus, the paper leaves out provisions of the TOR pertaining to thecomposition, modalities and administration of the AICHR.
The TOR begins by going back to the ASEAN Charter as the source of the
AICHR’s authority. This opening statement clearly lays down the confines of the
AIHCR’s role. The TOR’s guiding principles affirm that the AICHR must
maintain the ASEAN’s traditional posture as regards human rights:

Glass half empty or half full?
The AICHR and the ASEAN Perspective on Humanitarian Intervention“2. PRINCIPLES
The AICHR shall be guided by the following principles:
2.1 Respect for principles of ASEAN as embodied in Article 2 of theASEAN Charter, in particular:a) respect for the independence, sovereignty, equality,
territorial integrity and national identity of ASEAN Member
States;b) non-interference in the internal affairs of ASEAN
Member States;c) respect for the right of every Member State to lead its national
existence free from external interference, subversion andcoercion;d) adherence to the rule of law, good governance, the principles
of democracy and constitutional government;e) respect for fundamental freedoms, the promotion andprotection of human rights, and the promotion of social justice;f) upholding the Charter of the United Nations and internationallaw, including international humanitarian law subscribed toby ASEAN Member States; andg) respect for different cultures, languages and religions of thepeoples of ASEAN, while emphasizing their common values inthe spirit of unity in diversity.
2.2 Respect for international human rights principles, including
universality, indivisibility, interdependence and interrelatedness of
all human rights and fundamental freedoms, as well as
impartiality, objectivity, non-selectivity, non-discrimination, andavoidance of double standards and politicization;
2.3 Recognition that the primary responsibility to promote andprotect human rights and fundamental freedoms rests with each
Member State;

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2.4 Pursuance of a constructive and non-confrontational
approach and cooperation to enhance promotion and protection ofhuman rights: and
2.5 Adoption of an evolutionary approach that would contributeto the development of human rights norms and standards in
ASEAN.” (Emphasis supplied)
To preserve the non-confrontational attitude among Member States, the
AICHR emphasized the consultative nature of the intergovernmental body (Art.
3) and adopted the consensual decision-making process prescribed by theCharter (Art. 6.1). Markedly ASEAN, these principles have been translated into
the AICHR’s functions which tilted the balance between human rights
enforcement and non-interference in favor of the latter. The following functions
outlined in the TOR have been criticized as limited to human rights promotion:
1) Formulate strategies, including an ASEAN Human Rights
Declaration for human rights promotion and protection (Arts. 4.1,
4.2);
2) Increase public awareness, capacity-building support and thegeneral promotion of human rights instruments among Member
States (Arts. 4.3, 4.4, 4.5, 4.6);
3) Consult with stakeholders (Arts. 4.8, 4.9);
4) Provide advisory services or technical assistance on human rights
concerns to ASEAN sectoral bodies but only upon request (Art. 4.7);
and5) Conduct studies and develop common approaches and positions onhuman rights matters (Arts. 4.11, 4.12).
As part of human rights promotion, the AICHR can attempt to influence
Member States regarding their accession to international human rights
instruments (Art. 4.5). But a close reading of the provision reveals that the
influence must be in the form of a restricted “encouragement”, i.e.
“encouragement to consider acceding to” and not even to directly ratify the
instrument.

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The closest task towards human rights protection is embodied in Art. 4.10,
which states that the AICHR can “obtain information from ASEAN Member
States on the protection on human rights.” This was the concession point inresponse to the proposal to empower the AICHR to investigate and assess acountry’s human rights situation. Indonesia pushed for a broader protection
mandate by authorizing the AICHR to “observe situations and give
recommendations to Member States and conduct periodic review of Member
States’ human rights practices,” as practiced by the UN. However, the proposals
failed to muster support even from Thailand and the Philippines, which were
known to be active human rights advocates within the ASEAN. These countries
feared that an emboldened AICHR will investigate the mounting human rights
violations within their jurisdictions. (Drummond, 2010: 19)

IV. IS THERE ROOM FOR HUMANITARIAN INTERVENTION?
In answering the subject question, this section draws from the discussion onhumanitarian intervention and its related issues as presented in the preceding
portions of the paper. Specifically, this section examines if humanitarian
intervention can be justified within the AICHR framework, using the fourstandards proposed by Welsh (2004).
A. The glass half empty: Limitations to humanitarian intervention
The ASEAN has been known and proud to espouse the “ASEAN Way,” adistinctive approach to adhere to principles of consultation and consensus indecision-making, as well as to non-interference and non-use of force in dealing
with ASEAN neighbors (Weber, 2010). As early as the 1955 Bandung Conference
from which most of the ASEAN principles originated, “mutual respect forsovereignty and territorial integrity, mutual non-interference in each other’sinternal affairs, peaceful coexistence, disarmament and prohibition of nuclear
weapons and respect for human rights” have been the underlying understanding
among Southeast Asian countries. It is this set of shared values that binds
Member States to act as one (Solidum, 2003). Good neighborliness, cooperation,and high regard for group rights are common themes running in most ASEAN
engagements and transactions. The ASEAN Way is now embodied in the
ASEAN Charter. Inevitably, the paper will regularly refer to its provisions since162

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the AICHR draws its existence from the ASEAN Charter.
The language of engagement reiterated in ASEAN documents throughout
the years until the 2007 ASEAN Charter, and in the AICHR TOR in particular,
are opposed to what humanitarian intervention principally allows, i.e. use offorce and lack of consent on the part of the subject state. Moreover, theconsensus approach to decision-making makes a situation of coercion or
disregarding a Member State’s right to consent close to impossible.
Unfortunately, ASEAN principles are not just lip service or expressions ofsentiments on paper. Member States practice them in dealing with real-lifescenarios. As Solidum (2003) notes, ASEAN countries eschew military action.
With these principles entrenched in the AICHR, it is but expected that theregional mechanism’s role is limited to human rights protection. The implication
then is: if the AICHR cannot even provide for a venue to entertain individual
human rights complaints or conduct country investigations of violations, then
all the more can it not sanction a coerced armed action to uphold people’s rights.
The attitudinal barrier to humanitarian intervention becomes more difficult
to confront with when understood within the context of the East-Westdichotomy. The ASEAN Way has been repeatedly invoked in debates to justify
the ASEAN’s stand in critical issues relating to democracy and human rights,
largely in response to universalist notions based on western assumptions(Eldridge, 2002). The AICHR, as Ryu and Ortuoste (2011: 8) argue, is a regional
mechanism organized precisely as a “shield against external intervention.” This
does not come as a surprise since the establishment of the ASEAN is likewise a
response to the inescapable impact of the forces that make the influence of theWest and other regional blocs faster and more real than ever.
The ASEAN thus views most cases of humanitarian intervention withsuspicion. Koji (2003: 6) notes that the ASEAN found the NATO (North
American Treaty Organization) involvement in Kosovo “disquieting.” The
ASEAN knew that it was more about “power politics than moral question.”
Further, the ASEAN takes a more cynical stance when the target state is its
own member. Even the UN had to contend with the ASEAN Way of dealing

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with Myanmar. All UN actions as regards the human rights situation in thesaid country are being closely coordinated with the ASEAN (Ryu and Ortuoste,2011).
From the foregoing, an attempt to satisfy Welsh’s first criterion as to whenhuman intervention may be justified - that there must be a just cause, or asupreme humanitarian emergency - becomes fraught with difficulties. Prior toevaluating the “cause” is the issue of who shall evaluate whether there is indeed
a supreme humanitarian emergency? Is it the United States, Australia, theEuropean Union? What are their true interests in becoming involved?
Assuming for argument’s sake that the ASEAN, and not an external super
power, will decide on the existence of an emergency, the ASEAN’s desire to geteveryone’s agreement, including the subject state’s go-ahead, will rule out
humanitarian intervention as an option. This is based on the premise thathumanitarian intervention entails coercion. As Amnesty International observed,
the consensus approach to human rights protection “weakens, compliance,
allows obstruction by minority of governments to bring pressures of acceptanceto the lowest common denominator standards” (Eldridge, 2002: 63).
Applying Welsh’s second and third requirements of use of force as a lastresort, and the proportionality of intervention, the AICHR will again fail tofacilitate the application of humanitarian intervention. The AICHR, consistent
with the principles of the ASEAN, has not been clothed with authority to use
military coercion even as a last option. Bound by the ASEAN Charter, the
AICHR must employ dispute resolution mechanisms for the peaceful settlementof disputes, renounce aggression, use of force or threat thereof (cf. Article 2,
Principles, ASEAN Charter). Solidum (2003: 114-115) finds this practice
impressive: “the ASEAN has so far resolved issues without militaryintervention, using innovative Asian solutions.”18

It thus appears that theASEAN Way does not envision a situation where grave abuses will warrant
forced military action.
As to the fourth criterion of achieving humanitarian outcomes, a primaryconsideration is: what are humanitarian outcomes for the ASEAN? Following

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the ASEAN Way, human rights enforcement must be contextualized within a
specific set of culture, values and political beliefs. In this light, the ASEAN has
been careful not to impose a particular form of democracy to its members.
Further, the ASEAN can argue that good neighborliness and mutual restraint,in full recognition of a co-member state’s sovereignty, are themselves
humanitarian outcomes that can only be achieved without employing coercion.
These told, the conclusion leads us to the AICHR as a weak, if not
powerless, institution for enforcing human rights through the strategy ofhumanitarian intervention. Drummond (2010) agrees further by saying that
reliance cannot be made on the evolutionary approach to human rights
enunciated in Article 2.5 of the TOR. She finds the approach vague and elusive
as it lacks substantive benchmarks for evaluating the AICHR’s development.
Drummond is thus far from being optimistic in looking at the AICHR’s potential
to protect rights, noting that the body was never designed to have teeth.
B. The glass half full: Capitalizing on the ASEAN Way
Seeing the glass as half empty presents only one side of the coin. The
ASEAN Way, which the AICHR is mandated to espouse, indeed restricts themanner in which Member States can engage with each other. But a closer lookat the AICHR reveals that the new institution offers some leeway forhumanitarian intervention.
A striking feature of the ASEAN Way articulated in the TOR (Art. 2.5) is
the “(a) doption of an evolutionary approach that would contribute to thedevelopment of human rights and standards in ASEAN.” This principle and theASEAN’s experience indicate that change is possible. Its extent and pace may
not be fully known but there is always some possibility that the ASEAN willfind exceptions to the norms of consensus and non-interference, especially whenpeople’s rights are involved.
Ambassador Tan Sri Dato Ahmad Fuzi bin Abdul Razak, Malaysia’s
representative to the HLP, recalls that human rights used to be a “taboo” in the
ASEAN (Koh, et al., 2009: 21). Hence, its incorporation in the Charter and theconsequent establishment of the AICHR are considered big leaps in ASEAN

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history. Philippine representative to the HLP, Ambassador Rosario Manalo
commends that the establishment of AICHR placed human rights at the centerof the ASEAN agenda.
Ryu and Ortuoste (2011) expressed optimism as to the potential of the
AICHR to pursue stronger human rights protection within the region. Their
view finds support in recent developments that demonstrate a more liberal
acceptance of humanitarian intervention. The Philippines and Thailand for
instance supported the Australia-led peace-keeping efforts in Timor Leste bysending their own troops (Koji, 2003). While members such as Myanmar,
Cambodia, Laos and Vietnam may continue to oppose a more progressiveinterpretation of non-interference, the establishment of the AICHR shows thatconsensus can lead to agreements favoring human rights.
More importantly, the official expression of the ASEAN Way, i.e. theASEAN Charter, as well as the AICHR TOR, both refer to a more immutablerationale for resorting to humanitarian intervention. It is worth emphasizingthat the AICHR is mandated:“1.6 To uphold international human rights standards as prescribedby the Universal Declaration of Human Rights, the Vienna
Declaration and Programme of Action, and international humanrights instruments to which ASEAN Member States are parties.”(TOR; emphasis supplied)
The ASEAN Charter likewise provides in its preamble, purpose and guiding
principles the protection of human rights and fundamental freedoms (Arts. 1.7,
2.2[i]) and includes as a guiding principle, “upholding the United Nations
Charter and international law, including international humanitarian law,subscribed to by states. Although admittedly, some ASEAN members have been
selective in ratifying international human rights law instruments, the generalintent to protect people’s rights plus the commitment to a people-centered
ASEAN can creatively be invoked to justify humanitarian intervention.
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be room for AICHR to consider humanitarian intervention. As to the first andfourth requirements of a just cause and humanitarian outcomes, the same may
be satisfied as the AICHR accepts the universality, indivisibility,interdependence and interrelatedness of all human rights and fundamental
freedoms (Art. 2.2, TOR). The TOR mandates the AICHR to apply the UDHR
despite the different cultural contexts in which rights operate. Though what
constitutes a supreme emergency may not be easily defined, UN instruments
can provide clearer guidance as to when there is a violation of rights and on how
such rights should be protected. With the AICHR’s reference to international
human rights standards, blatant violations that warrant intervention cannot beeasily brushed aside, and can prevail over wariness about the self-interest ofother states. The reaction to Myammar’s suppression of the Saffron Revolution
in 2007 reveals that this is possible. Ciorciari (2009) vividly accounts:“Shortly after the crackdown, Singaporean Foreign Minister
George Yeo expressed ‘horror’ and ‘anger’ at the SPDC’s [State
Peace and Development Council] actions. He said plainly that
ASEAN ‘had stopped trying to defend Myanmar internationallybecause it became no longer credible’ and that ASEAN had ‘nochoice’ but to castigate the junta. On September 27, 2007, Yeo gavea statement at the UN General Assembly in New York that
expressed “revulsion” and, pointedly, called for a ‘transition todemocracy.’ As scholar Donald Emmerson has argued, Yeo’s
remarks—which evidently were not cleared by other ASEAN
ministers—broke from ASEAN’s past insistence on the need for‘reconciliation’ in Myanmar. By advocating a transition todemocracy, Yeo implied the need for dramatic political reform. One
Singaporean analyst with close ties to the Foreign Ministry raised
the possibility of suspending Myanmar’s ASEAN membership. A
few other ASEAN officials also expressed revulsion and demandedchange. A ‘frustrated’ Philippine President Gloria Macapagal
Arroyo demanded the release of Aung San Suu Kyi and insisted
that the SPDC move toward democracy ‘without further delay.’ The
Buddhist Foreign Minister of Thailand, Nitya Pibulsonggran,allegedly called the killing of monks ‘opprobrious’ or ‘abhorrent’ inGlass half empty or half full?
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private ASEAN meetings. In Jakarta, Indonesian Foreign Minister
Hassan Wirayuda also expressed concern and attributed the unrest
to a ‘flawed democratization process’ in Myanmar. These critiquessounded too gentle and diplomatic to some Western audiences, butthey were strikingly sharp by ASEAN’s normal non-intrusive
standards.”
As regards Welsh’s second and third criteria, it may be argued that theexhaustion of remedies and proportionality of intervention requirements can beaddressed by the evolving principles of sovereignty and non-interference. These
concepts are never static (Weber, 2010). Like any other socially-constructed
norm, they change over time. ASEAN Member States have continually exploredways of confronting co-members without transgressing the time-honored valuesof good neighborliness, mutual accommodation, and open discussions; thus
carving out space for humanitarian intervention when necessary. Some Member
States have thus proposed more direct ways of dealing with a neighbor’s internal
concerns, other than by tolerance.
Consistent with the principle of non-interference, the ASEAN traditionallyemploys a “constructive engagement” approach. This style, as applied in the caseof Myanmar in 1994, involved inviting leaders to ASEAN gatherings so they will
see the benefits of joining. Myanmar became a member of the ASEAN in 1994
(Solidum, 2003). In 1997, former Malaysian Prime Minister Anwar Ibrahim
proposed a bolder alternative in the form of “constructive intervention,” to allow
the ASEAN to intervene before domestic problems escalate and affect otherMember States. Since this was already considered radical, Thailand offered a
new strategy of “flexible engagement” which allowed an open discussion ofdomestic affairs with regional ramifications. So far, what has been adopted is“enhanced interaction” where Member States can bring to the table a neighbor’s
concerns that could affect them or the region. (Loke, 2005)
Critics argue that any possibility of humanitarian intervention within the
AICHR framework remains remote, given the slow pace at which human rights
and sovereignty concepts evolve. It must be understood however that the AICHR
as a 2009 creation must be given time to grow, perhaps slowly but surely.

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V. CONCLUSION: THE CHALLENGE TO STATE
GOVERNMENTS, CIVIL SOCIETY AND THE ACADEMEThe establishment of the AICHR elicited diverse responses from humanrights advocates who have long lobbied for a regional human rights mechanism.
Others expressed elation that finally an official document and body will embody
ASEAN’s human rights aspirations. More expectant ones, faced disappointment
at a toothless office. The answer then to the question of whether or not
humanitarian intervention has a place in the AICHR cannot be categorical. It is
dependent not only on the perspective taken, but also on the engagement ofactors and stakeholders with each other and with the new regional humanrights body.
Ryu and Ortuoste (2011) trace the creation of the AICHR to two factors: thedemocratization process and a change in regional norms through the ASEAN’s
community building process. State governments and its leaders, as duty-bearers,
carry the key to ensuring a flourishing democratic space that will allow fullrespect for human rights, including freedom of expression and opinion. Only
when such rights are upheld can there be a healthy system for exacting
accountability between the government and its people. The challenge tomaintain democracy is never an easy one. Even Member States that have been
steps ahead towards democratic governance, such as Thailand and thePhilippines, have been subject to threats of democratic reversal.
Governments also face the challenge of establishing (in countries where
there are none) and supporting independent and fully functioning national
human rights institutions (NHRIs). Humanitarian intervention can only beappreciated in an environment where states take full responsibility for
violations by ensuring that adequate mechanisms for redress are in place.
Humanitarian intervention will find space in a regional body when state
counterparts understand the primacy of rights in their own governance systems.
State leaders must also continue to play a lead role in setting the direction
within their jurisdictions, and collectively within the ASEAN to end humanrights violations. What has happened during the Saffron revolution in Myanmar

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attests that official statements of state representatives set the tone ofengagement and can provide the necessary encouragement towards a deeper
understanding of humanitarian intervention and human rights.
Civil society takes considerable credit in pushing for the creation of the
AICHR (Drummond, 2010). Human rights non-governmental organizations
have been at the forefront of exacting accountability for violations at thenational and regional levels. Their role has not been confined to human rights
promotion, but includes the more important task of filling gaps in the system
due to government neglect. While support for the AICHR is always welcome,civil society as claim holders must continue to critically question and challenge
the regional system. A human rights organization in the Philippines has taken
this direction by testing the limits of the AICHR through submitting a complaint
19

in behalf of the victims of a massacre in the southern part of the country.

Moreover, the AICHR has given the civil society a special role. The TOR
specifically authorizes the AICHR to “engage in dialogue and consultation withother entities associated with the ASEAN, including civil society organizations
and stakeholders, as provided by Chapter V of the ASEAN Charter” (Art. 4.8).
The Charter refers to a list of certified entities associated with the ASEAN. But
civil society must not be limited by such list. Whether accredited or not, theymust continue to engage with the AICHR directly or indirectly through thevarious modes provided in the TOR.
The academe likewise plays a crucial role in the humanitarian intervention
discourse. As discussed in the preceding chapters, the concept of humanitarian
intervention opens a wide range of issues where various disciplines such as
international law and relations, political science, sociology, economics, among
others, can offer answers and explanations. Discussions on expanding theboundaries of sovereignty and related concepts must put forth policy
recommendations that will aid Member States and the AICHR to better
understand human rights and humanitarian intervention.
The AICHR offers these three major sectors – the government, civil society,and academe – opportunities to take part in AICHR’s work. Unfortunately, the170

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first opportunity proved to be less promising than expected. Article 4.2 of the
TOR provided for the drafting of the ASEAN Declaration of Human Rights.
Prior to its issuance, civil society planned to actively take part in the drafting
process to ensure that the Declaration will adhere to the UDHR. But unlike the
AICHR TOR, the Declaration’s formulation did not employ a transparent andinclusive process. Despite calls not to railroad its approval, the ASEAN adopted
20

a weak and extremely conservative Declaration on 18 November 2012. The
issuance drew flak from human rights advocates including the UN HighCommissioner for Human Rights for departing from internationally accepted21

human rights principles and standards.

Another chance for engagement is the TOR-mandated review of the AICHR
five years from its entry into force (Art. 9.6). Stakeholders must look forward to2014 for a round of assessments and a venue for concrete recommendations tostrengthen the AICHR. In the meantime, government, civil society and theacademe must continue to creatively work within the existing AICHR
framework and maximize the opportunities it presents to create room forhumanitarian intervention, promote a progressive understanding of humanrights, and establish effective mechanisms to enforce rights.
The AICHR, though far from being an ideal regional human rights body,must not spell the end of hope for humanitarian intervention and human rights.
Its TOR is a living document that must respond to changing times. I mustemphasize though that his paper does not advocate for a blind optimism as
regards the role of the AICHR. The AICHR’s limitations are real and can be
frustrating. This work intends to encourage stakeholders to capitalize on the
ASEAN’s evolutionary process. The promise is that there is always change. As
to how fast and to what direction the AICHR will evolve will ultimately dependon how governments, civil society and the academe will rise to the challenge ofutilizing the opportunities presented by the AICHR and the ASEAN.

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Notes
1 Paper presented at the International Conference on Humanitarian Intervention, Doshisha
University, Kyoto, Japan on 28-29 June 2011.
2 Assistant Professor, Institute for Governance and Rural Development, College of Public Affairs
and Development, University of the Philippines Los Banos.
3 Here, I take the divergent view of regionalization and nationalization as challenges toglobalization. However, I do not discount the fact that all three exist simultaneously and interact
as parallel processes (Kacowicz, 1998) as discussed in the following paragraphs.
4 American Heritage Dictionary of the English Language (2000), 4th ed. Houghton Mifflin
Company.
5 A more extensive conception of humanitarian intervention includes “non-military forms ofactivities of humanitarian NGOs” (Wheeler, 2003: 2) such as the International Committee for the
Red Cross, Doctors without Borders, and Oxfam. For purposes of this discussion and consistentGlass half empty or half full?
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with the aims of the conference for which this work was developed, humanitarian intervention
will exclude non-military relief efforts, albeit these are external actions intended to save lives. As
Lu (2007: 137) maintains, “activities such as provision of food, water, shelter, clothing andmedical assistance, all of which are aimed at bringing immediate relief to a population in
distress” may better be captioned as “humanitarian action” or “humanitarian assistance.” Lu
makes further distinctions based on “substantive activities”: military intervention for military
action with humanitarian purposes; economic intervention as one that comes in the form of“economic sanctions, boycotts and trade embargoes, as well as positive trade incentives andforeign aid.”
6 The United Nations Charter espouses respect for state sovereignty (Art. 2.1).
7 This paper uses “interference” and “intervention” interchangeably to mean “activity undertaken
by a state, a group within a state or an international organization, which interferes in thedomestic affairs of another state.” (Vincent, R. J., 1974: 13)
8 Shue cites Vincent (1974) who posits that the principle of non-intervention practiced by outsidestates enables a state to assert its sovereignty.
9 Lu cites Walzer, M. (1977). Just and Unjust Wars. New York.
10 Bazyler, M. (1987) “Reexamining the Doctrine of Humanitarian Intervention in the Light of the
Atrocities in Kampuchea and Ethiopia.” Stanford Journal of International Law, 23: 600.
11 The Philippines former President Fidel V. Ramos was a member of this Commission. Paragraphs
138 and 139 state:“138. Each individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This responsibility entails the preventionof such crimes, including their incitement, through appropriate and necessary means. We accept
that responsibility and will act in accordance with it. The international community should, as
appropriate, encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI
and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing
and crimes against humanity. In this context, we are prepared to take collective action, in atimely and decisive manner, through the Security Council, in accordance with the Charter,
including Chapter VII, on a case-by-case basis and in cooperation with relevant regionalorganizations as appropriate, should peaceful means be inadequate and national authorities
manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing andcrimes against humanity. We stress the need for the General Assembly to continue considerationof the responsibility to protect populations from genocide, war crimes, ethnic cleansing andcrimes against humanity and its implications, bearing in mind the principles of the Charter andinternational law. We also intend to commit ourselves, as necessary and appropriate, to helping
States build capacity to protect their populations from genocide, war crimes, ethnic cleansing
and crimes against humanity and to assisting those which are under stress before crises andconflicts break out.”
12 CSCAP Study Group on the Responsibility to Protect. (2010, February 26-27), Jakarta Indonesia.
Accessed on June 23, 2012, from http://www.cicp.org.kh/download/asean-isis%20and%20cscap/
CSCAP%20RtoP%20Study%20Group%20-%20First%20Meeting%20Final%20Report.pdf.
13 Barlett (2008).
14 Ibid.

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15 Nevertheless, Welsh’s four-fold test presents a workable, albeit imperfect, standard forevaluating humanitarian intervention. His proposed criteria will be used in the paper’s
discussion in Part IV.
16 7 April 1993, paragraph 26.
17 The Philippines was the first to establish a national human rights institution (NHRI) in
Southeast Asia. Indonesia followed in 1993, while Malaysia and Thailand set-up their own in
1999.
18 Her inference, however, is now highly debatable especially with the violations in Myanmar andbrewing issues as regards the Spratly Group of Islands.
19 The massacre involved the killing of around 60 civilians, including journalists, in Ampatuan
town, Maguindanao, Southern Philippines allegedly upon orders of a political opponent of agubernatorial candidate. The Center for International Law elevated the case to the AICHR
through a “Preliminary Request” on the premise that the acts would not have been committed
without the complicity of the state or its agents. (Maguindanao massacre reaches ASEAN
Human Rights Body, Vera Files accessed on 3 June 2011 at http://verafiles.org/main/news/
maguindanao-massacre-case-reaches-asean-human-rights-body/
20 Available at http://www.asean.org/news/asean-statement-communiques/item/asean-humanrights-declaration
21 “ASEAN Human Rights Declaration fails to impress UNHRC.” The Jakarta Post. 14 November
2012, available at http://www.thejakartapost.com/news/2012/11/14/asean-human-rightsdeclaration-fails-impress-unhrc.html