On March 24, two young anti-coal activists were abducted from a tuk-tuk in San Carlos, Philippines, and forced into another vehicle. Francisco “Eko” Dangura III and Joxel “Jack” Tiong were later found alive but had both been assaulted.
Their ordeal coincided with ongoing efforts across Southeast Asia to protect environmental activists through a region-wide declaration on environmental rights.
According to Global Witness, 318 land and environmental activists were killed across Southeast Asia between 2012 and 2021, 18% of the global total. The Philippines has recorded 281 deaths since 2012, making it the country with the highest number of such activists killed in Asia. Threats and tactics, including intimidation, surveillance, arbitrary arrests and violence, target frontline communities and indigenous peoples as well as journalists and lawyers.
News that the region would be drafting a Declaration on Environmental Rights was initially greeted with enthusiasm by civil society organizations, which say it would be the Association of Southeast Asian Nations' (ASEAN) first environmental legal instrument since it was founded in 1967. But many in civil society have criticized the two-year drafting process, watering down the declaration and weakening key predictions.
Raffy Pageles is a Filipino environmental lawyer with the Environmental Legal Assistance Center (ELAC) who is representing the group, and a member of the non-governmental network Alternative Law Group (ALG). “It may not even be legally binding,” Raffy told Dialogue Earth. “What good is the declaration? Or is it just a piece of paper?”
Weakened protection
The draft declaration, which has been prepared by the ASEAN Intergovernmental Commission on Human Rights (AICHR) and its working group since 2022, aims to promote the “right to a safe, clean, healthy and sustainable environment. The draft declaration sets out guiding principles for the 10 ASEAN member states: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam.
The framework draws inspiration from the United Nations, borrowing key language from UN resolutions and other regional agreements such as the Escazú Accords supported by Latin American and Caribbean countries, but critics say its progressive elements have been diluted.
Recommendation
The latest publicly available draft, dated March 7, 2024, calls for measures for non-compliance with international human rights law. But at a consultation in Jakarta in April, civil society groups said the draft fell short on key environmental protections, such as transboundary environmental impact assessments and private sector accountability.
More significantly, while the draft recognizes and protects “those who promote and defend environmental rights,” it has been criticized by legal experts for not adopting the UN-defined term “Environmental Human Rights Defender (EHRD).”
Pajeres works with frontline communities and local journalists who face legal prosecution for raising environmental concerns locally. “I think it is essential to specifically recognize Environmental Human Rights Defenders (EHRDs) because it means ASEAN itself is recognizing these people and the rights they have within its member states,” he said.
Being labeled a “subversive” or “terrorist” is one of the biggest threats that activists in the Philippines face. Pajeres fits the EHRD definition. But today, he may find himself on the wrong side of the law. “We are affected by the shrinking of civic space and the weaponization of the law in the country,” he warns.
The situation is similarly dire in the Mekong countries. In July 2024, ten young Cambodian activists from the environmental group Mother Nature were sentenced to six to eight years in prison for “conspiracy” and “insulting the King”. They were well known for their social media campaigns against deforestation caused by government development plans. In Vietnam, a prominent climate lawyer remains in prison on trumped-up charges of tax evasion.
Leah Torres, executive director of the Asia-Pacific Network of Environmental Organisations (APNED), explained that activists are often misunderstood by authorities as troublemakers. “Environmental organisations appear to be the cause of conflict, but in reality they are looking for solutions because they want to protect the environment to survive,” Torres said at the ASEAN Environmental Law Conference in Bangkok in July.
Lack of Indigenous Representation
There are also concerns that the draft does not take into account indigenous peoples (IPs), using the term “ethnic groups” instead, effectively weakening their land tenure rights.
At the April hearing, the Asian Indigenous Peoples Treaty Foundation (AIPP) submitted a letter of demand to the working group along with 90 allied organizations, arguing that the recognition was “non-negotiable.”
“ASEAN governments may not acknowledge the existence of indigenous peoples, but they cannot deny the fact that we live here,” Pirawan Wongnithisattaphol, an ethnic Karen and AIPP representative, told Dialogue Earth.
Recommendation
She added that indigenous representatives had been excluded from the drafting process, the draft was only available in English, and the two-month consultation period from March to April was too short to allow for meaningful participation.
Wongnithisatthapol said that despite the majority of ASEAN countries voting in favor of the UN Declaration on the Rights of Indigenous Peoples, there is no consensus within ASEAN, as many countries fear that recognising indigenous rights would strengthen land ownership claims, an issue at the heart of many environmental conflicts.
More than two-thirds of the world's indigenous people live in Asia, according to the AIPP. The Philippines and Cambodia are the only two ASEAN countries that explicitly recognize the existence of indigenous peoples. Wongnithisatthapol's native Thailand is currently enacting its first bill to promote indigenous communities, which it hopes will spur national policy reforms across the region.
The ASEAN way or something different?
Non-interventionism, a fundamental principle among ASEAN member states, influenced the drafting process of the declaration. Prilia Kartika, a researcher at the Indonesian Center for Environmental Law and part of the working group, noted the difficulty of reaching consensus at the ASEAN Environmental Law Conference in July. For example, the term “indigenous peoples” was initially removed from the draft due to objections, but was reinserted after progressive members of the ASEAN Intergovernmental Commission on Human Rights (AICHR) raised the issue. The term now sits in square brackets awaiting final consideration.
Since the fifth and final Working Group meeting in July, final consideration has been in the hands of the AICHR and ASEAN leaders. While the public has yet to see the latest draft, Working Group representatives say the declaration is likely to be adopted at the biennial ASEAN summit in Malaysia next year, a year later than originally planned.
“In the early stages of discussions with the working group, the intention was to create a legally binding document with stronger influence,” Kartika said, “but it has continued to be weakened more and more.”
It is unclear whether the final declaration will be legally binding.
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