Editor’s choice
As the Association of Southeast Asian Nations (ASEAN) develops Southeast Asia’s first regional instrument on human rights and the environment, seemingly simple symbols like brackets represent complex power dynamics and debates over environmental justice, including who will be safe or vulnerable.
We all remember the frustration of misplacing a single bracket while solving math problems in school. A small error could unravel hours of work. Back then, escaping the grind of equations was a relief. Little did we know that those tiny symbols would take on much greater significance in legal and political arenas.
In policy drafting and negotiations, square brackets mark points of contention – areas where no agreement exists. As ASEAN develops Southeast Asia’s first regional instrument on human rights and the environment, the ASEAN declaration on environmental rights, brackets become a battleground for the future of people and the planet.
The ASEAN Environmental Rights Working Group is leading the policy drafting. It is led by the ASEAN Intergovernmental Commission on Human Rights (AICHR) and comprises representatives of the AICHR, ASEAN Sectoral Bodies, the UN, and civil society. A draft dated 7 March 2024 was available for public consultation, although the deliberation period lasted merely a month.
In this document, brackets show areas of ongoing debate. The text is bracketed when Working Group members cannot agree on something. Brackets become the site of negotiation. They signal what will be protected or left out and whose national interests are in play. In the real world, outside the negotiating rooms, it has implications for who will be safe or made vulnerable.
In the latest draft, several principles important to environmental justice are bracketed. One example is the right of any person to access environmental information in an affordable, effective, and timely manner. The clause on a science-based and human rights-based approach to climate action is also contested. The need for human rights due diligence environmental impact assessments of major projects is similarly under debate. Whether or not these measures will be included in the final policy is unclear.
The bracketing reveals the divergence of some governments from the demands of the public and reflects the resolve of civil society to ensure that the declaration embodies principles that respond to the environmental and human rights challenges in the ASEAN.
Rocky Guzman, Asian Research Institute for Environmental Law, ASEAN Environmental Rights Working Group Member
Figure 1: Draft Declaration dated 8 May 2024, page 3, provision 14(3) on access to information, highlighted by authors.
Source: UNESCAP.
Figure 2: Draft Declaration dated 8 May 2024, page 4, provision 17 on Indigenous Peoples’ rights to FPIC and 18 on environmental and human rights due diligence, highlighted by authors.
Source: UNESCAP.
The brackets go deeper, touching on the rights of Indigenous Peoples. The draft declaration includes the principle of Free, Prior, and Informed Consent (FPIC), an internationally recognized right of Indigenous Peoples to give or withdraw consent to any activities undertaken on their land or any measures that may affect them. Instead of recognizing Indigenous Peoples in line with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the text refers to them as “[ethnic communities].”
Several Asian governments use the term on the basis that there are no Indigenous Peoples in their countries or all their citizens are equally indigenous, challenging a concept with a colonial root. However, it denies the existence and recognized rights of Indigenous Peoples and the applicability of international policies such as UNDRIP
Brackets are more than just a symbol. For many, they are a threat to survival.
Kyn Mallorca, representing the ASEAN Youth Forum as a Working Group member, shared how the bracketing affects LGBTQIA+ people.
Super Typhoon Odette hit her hometown in Cebu, Philippines, in 2021 during the Covid-19 pandemic. For trans women like Kyn, the crisis deepened pre-existing struggles around securing income, accessing healthcare, and obtaining medication for gender transition. The double burden of a pandemic and a climate disaster left her and her community vulnerable in ways that could have been avoided.
Kyn had joined the Working Group hoping that an environmental rights policy could acknowledge the basic rights of LGBTQIA+ people, ensuring their voices and needs are reflected. That hope dimmed as she saw measures protecting vulnerable groups being debated and at risk of removal
During an Indigenous Peoples’ consultation workshop, a Pgakenyaw Indigenous woman from Northern Thailand recalled her childhood memories of catching fish and crabs in the river. The water was clean, a source of both nourishment and joy. But pollution has since poisoned the river, cutting off her community from a vital natural resource they had taken care of. Worse, the government declared a protected area of their ancestral lands – cared for by her family and generations before. Park rangers patrol their land, and the fear of forced displacement haunts her family every day.
For her, the brackets that hover over environmental rights could mean the difference between the survival and erasure of Indigenous Peoples’ way of life.
Square brackets in the ASEAN declaration are not just about language. They are about power. They show whose interests are up for debate, whose rights are seen as negotiable, and who risks being erased.
When the right to information is not fully recognized, it’s not an editorial matter. It denies citizens the right to know about issues that concern them.
When the measures on human rights and environmental due diligence are questioned, it’s a deliberate refusal to consider and make public the implications of significant projects and interventions on people and nature.
When the provision for a human rights-based approach is bracketed, it’s not about making a document shorter – it’s about ensuring the powerful remain unchallenged while human rights remain unprotected.
When stakeholders like Indigenous Peoples or environmental human rights defenders are not recognized in line with international standards or referred to differently, it’s not just a technicality. It’s a denial of recognition and justice for stewards of the environment who are made vulnerable by development and environmental interventions.
It has been an uphill battle for environmental human rights defenders to include the provisions we need in the declaration. With the recent Global Witness report showing 10% of the killings and disappearances of environmental defenders are in Southeast Asia, it is frustrating to see our rights left in brackets.
Lia Mai Torres, Asia Pacific Network of Environmental Defenders, ASEAN Environmental Rights Working Group Member
ASEAN’s history of dealing with marginalized groups has been fraught. Governments often invoke cultural relativism, national security and sovereignty concerns, and equality for all to justify excluding protections for these communities. These arguments mask the unwillingness to confront the injustices faced by Indigenous Peoples, environmental defenders, LGBTQIA+ people and other vulnerable groups.
Since the first Working Group meeting in 2023, the declaration has been significantly pared down over time. What began as a robust 18-page draft has been reduced to seven pages. With each pair of brackets and the potential removed protection, the region’s most vulnerable are exposed to harm. Concerns have been expressed by six UN Special Rapporteurs in a joint letter to AICHR Representatives, calling for stronger human rights language and commitments in the declaration.
The continuing efforts to reduce procedural and substantive rights, along with general environmental and human rights principles during Working Group meetings, reflect a setback in ASEAN regarding environmental rights narratives, and possibly serves as a hindrance to a stronger Member States’ commitment to safe, clean, healthy, and sustainable environmental rights.
Prilia Kartika Apsari, Indonesian Center for Environmental Law, ASEAN Environmental Rights Working Group Member
By July 2024, after the 5th meeting, the Working Group submitted the declaration draft to AICHR for further deliberation. The ball is now in the court of AICHR and ASEAN member states to position ASEAN as a leader in promoting and fulfilling the right to a clean, safe, healthy, and sustainable environment for all – without brackets.
This perspective is co-authored by Fithriyyah Iskandar, Kyn Mallorca and Max Han.
Project / This project aims to facilitate a dialogue and document inputs on the ASEAN Declaration on Environmental Rights.
Media coverage / SEI Asia's Minh Tran discusses the E-Sak Ka Ou Declaration, emphasizing Indigenous People's rights as a critical component of climate action.
Perspective / Representatives of Indigenous Peoples’ organizations and partners gathered to deliberate on the draft text of the ASEAN Declaration on Environmental Rights.
Project / This project aims to facilitate a dialogue and document inputs on the ASEAN Declaration on Environmental Rights.
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