Civil society groups express concern over the draft declaration’s failure to adequately acknowledge “Indigenous peoples”, among other shortcomings.
Rise for Climate, Justice, and Integrity of Creation march in Quezon City, Metro Manila, where thousands took the streets to demand energy transformation and climate justice. Image: 350.org
On 24 March, two young anti-coal activists were abducted from a tuk-tuk in San Carlos, the Philippines, and forced into another vehicle. Francisco “Eco” Dangla III and Joxelle “Jak” Tiong were later found alive; both had been assaulted.
Their ordeal coincided with ongoing efforts across Southeast Asia to protect environmental defenders through a region-wide declaration on environmental rights.
From 2012 to 2021, 318 land and environmental defenders were killed across Southeast Asia, representing 18% of the global total, according to Global Witness. The Philippines ranks as Asia’s most lethal country for such activists, with 281 recorded deaths since 2012. Intimidation tactics – including threats, surveillance, arbitrary arrest and violence – target not only frontline communities and Indigenous peoples, but also journalists and lawyers.
News that the region would develop an environmental rights declaration was initially met with enthusiasm by civil society organisations, representing the Association of Southeast Asian Nations’ (ASEAN) first environmental legal instrument since it was formed in 1967. However, many in civil society have since criticised what they see as the watering down of the declaration during its two-year drafting process, with key previsions weakened.
Raffy Pajeres is a Filipino environmental lawyer from the Environmental Legal Assistance Center (ELAC) which provides legal representation. He is also a member of the non-governmental network the Alternative Law Group (ALG). “It might not even be legally binding,” Raffy tells Dialogue Earth. “What purpose does the declaration serve? Or is it just a piece of paper?”
Watered-down protections
The draft declaration, developed since 2022 by the ASEAN Intergovernmental Commission on Human Rights (AICHR) and its working group, aims to promote “the right to a safe, clean, healthy and sustainable environment”. It sets guiding principles for the ten ASEAN member states – Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.
The framework draws inspiration from the United Nations, borrowing key terms from UN resolutions, and other regional agreements like the Escazú Agreement embraced by Latin America and the Caribbean. However, its critics argue that progressive elements have been diluted.
The most recent publicly available draft, dated 7 March 2024, calls for action against non-compliance with international human rights. Yet, civil society organisations, during April consultations in Jakarta, pointed out that the draft is weak on key environmental protections, including transboundary environmental impact assessments and private-sector accountability.
More importantly, while the draft acknowledges and protects “those who promote and defend environmental rights”, it has drawn criticism from legal experts for not adopting the UN-defined term “environmental human rights defenders (EHRDs)”.
Pajeres works alongside frontline communities and local journalists facing legal charges after advocating for environmental causes in their hometowns. “We believe that it’s essential to have a specific recognition of EHRDs because it means that ASEAN itself recognises these kinds of people and the rights they may have within their own member states,” he says.
Being labelled as a “subversive” or “terrorist” is one of the biggest threats Filipino activists face. Pajeres is among those who fall under the EHRD definition. Today, however, he could find himself on the wrong side of the law. “We’re being affected by the shrinking of civic space and the weaponisation of the laws in our country,” he warns.
The situation is similarly dire across Mekong countries. In July 2024, ten young Cambodian activists from Mother Nature, an environmental advocacy group, were sentenced to six to eight years in prison for “plotting” and “insulting the king”. They were well-known for their social media campaigns against deforestation caused by the government’s development schemes. In Vietnam, prominent climate lawyers remain jailed on trumped-up charges of tax evasion.
Lia Torres, executive director of the Asia Pacific Network of Environmental Defenders (APNED), described how activists are often wrongly perceived as troublemakers by the authorities. “While environmental defenders appear to be a source of conflict, they actually seek solutions because they want to protect their environment for their survival,” she said, speaking at the ASEAN Environmental Law conference hosted in Bangkok in July.
Missing Indigenous representation
Concerns have also been raised about the draft’s lack of acknowledgement for Indigenous peoples (IPs), with the term “ethnic group” used instead, effectively weakening their land tenure rights.
During public consultations in April, the Asia Indigenous People Pact Foundation (AIPP), together with 90 allied organisations, submitted a demand to the working group, insisting this acknowledgement was “non-negotiable”.
“Even though ASEAN governments may not recognise the existence of Indigenous peoples, they cannot deny the fact that we are living here,” Pirawan Wongnithisathapor, a representative of the Karen people and of AIPP, tells Dialogue Earth.
She added that Indigenous representatives were excluded from the drafting process and that the two-month consultation period, from March to April, was too short for meaningful participation, with drafts only available in English.
Despite most ASEAN nations having voted in favour of the UN Declaration on the Rights of Indigenous Peoples, according to Wongnithisathapor, there is no consensus within ASEAN. Many countries fear that the recognition of IPs would bolster land ownership claims – an issue central to numerous environmental conflicts.
More than two-thirds of the world’s Indigenous populations reside in Asia, according to AIPP. The Philippines and Cambodia are the only two ASEAN nations that explicitly recognise Indigenous peoples’ existence. In Thailand, where Wongnithisathapor is from, the first bill to promote Indigenous communities is currently being enacted. There are hopes this will spur national policy reforms across the region.
The ASEAN way or no way?
Non-interference, which is a fundamental principle among ASEAN member states, has shaped the declaration’s drafting process. Prilia Kartika, a researcher from the Indonesia Center for Environmental Law, who was part of the working group, highlights the challenges of consensus-building during July’s ASEAN Environmental Law conference. For instance, the term “Indigenous peoples” was initially removed from the draft due to objections, but was reinserted after a progressive member of the ASEAN Intergovernmental Commission on Human Rights (AICHR) raised the issue. The term is currently in square brackets awaiting final consideration.
Since the fifth and final working group meeting in July, the final review is now in the hands of AICHR and ASEAN leaders. The public has yet to see an updated draft, but according to the working group representative, the declaration is likely to be adopted at the biannual ASEAN leaders summit in Malaysia next year – a year later than originally planned.
“In the early stage of discussion with the working group, we intended to have a legally binding document for stronger impact,” says Kartika. “But it keeps being weakened and weakened.”
In response to the draft of the ASEAN Declaration on Environmental Rights, in late August civil society organisations published their own ASEAN Peoples’ Declaration on Environmental Rights. It contains a new section on principles that cites the precautionary principle and the polluter pays principle, as well as new sections on clean air, pollution control, climate action, biodiversity, land degradation, water, and oceans.
It remains unclear whether the final declaration will be legally binding.
- This article was originally published on Dialogue Earth under the Creative Commons BY NC ND licence. Read the original article.
