Published in July 2018.
This module is a resource for lecturers
The Asian region
South East Asia: The Association of Southeast Asian Nations
The Association of Southeast Asian Nations (ASEAN) was created in 1967 and has a membership of ten States. Its primary objectives include the promotion of regional peace and stability, and the strengthening of internal and external cooperation on matters of common interest.
Initially created as a loose association of States, since the ASEAN Charter (adopted 20 November 2007, entered into force 15 December 2008) entered into force, the organization has had legal personality enabling it to engage more effectively in cooperation within the region and beyond. Of particular relevance to regional counter-terrorism efforts, the Organization's Charter includes as its purposes: (1) "To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region" (article 1(1)); and (2) "To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN" (article 1(7)).
The need for cooperation in the context of counter-terrorism was first identified in the ASEAN Declaration on Transnational Crime (adopted 20 December 1997), in which the Organization resolved to expand the "scope of Member Countries' efforts against transnational crime such as terrorism".
This was followed, in the wake of the 9/11 terrorist attacks, by the ASEAN Declaration on Joint Action to Counter Terrorism (adopted 5 November 2001). One of its principal aims is to strengthen regional cooperation, such as through the sharing of best practices and information/intelligence, efforts to augment regional counter-terrorism capacity, as well as examining how to integrate international anti-terrorism conventions within ASEAN mechanisms on combating international terrorism. This was followed in 2002 by the ASEAN Work Programme to Combat Transnational Crime (adopted 17 May 2002) which provides operational guidelines for regional cooperation. The importance of furthering the goals and actions identified in the 2001 Declaration of Joint Action was reiterated in 2002 following the terrorist attacks in Bali, Indonesia and the Philippines, which claimed the lives of 216 civilians and injured a further 419 people.
With respect to binding instruments, the ASEAN Convention on Counter Terrorism was adopted on 13 January 2007 (entered into force 27 May 2011) and is the principal instrument for strengthening regional counter-terrorism efforts. Prior to its adoption, there was disagreement regarding whether or not a dedicated regional convention was needed due to the existence of the universal instruments against terrorism, together with binding obligations created by Security Council Resolution 1373. In response to international pressure, however, the Convention was eventually negotiated and adopted.
The Convention has a number of notable features. One is that it does not include a regional definition of terrorism or terrorist offences, relying instead on the meaning of 'offence' as defined within the universal instruments. Another is that its provisions are generally quite broadly drafted, reflecting the baseline of legal and political consensus. Interestingly too, article VIII, which guarantees the right of 'fair treatment' to suspected terrorists, whilst acknowledging the relevance and importance of international law emphasizes first the key role of domestic law. This reflects the fact that not all ASEAN Member States are parties to international or regional human rights law treaties, such as the ICCPR and/or the ASEAN Convention.
Such emphasis on national legal frameworks is reflective of wider challenges faced by ASEAN in terms of strengthening regional cooperation in that a number of its Member States regard terrorism essentially as a domestic matter. Other important differences exist too, including in terms of national counter-terrorism doctrine: some Member States adopt a more militaristic approach to countering terrorism, whilst others generally respond through a criminal justice paradigm. Even where law enforcement measures have been adopted, national differences in how they have been interpreted and implemented can pose obstacles to more effective regional cooperation. A number of commentators pose the question whether there is a need for ASEAN to revisit and reframe its counter-terrorism policies and strategy to reflect the reality that terrorist threats and activities within Southeast Asia are both a local and global phenomenon (Hafidz, 2009).
Since 2014, ASEAN has similarly sought to respond to the regional threats posed by foreign fighters, drawn from within its membership, joining conflicts in Iraq and Syria who then return to the region. This has resulted in the 2014 ASEAN Foreign Ministers' Statement on the Rise of Violence and Brutality Committed by Terrorist/Extremist Organizations in Iraq and Syria, and the subsequent 2015 Special ASEAN Ministerial Meeting on the Rise of Radicalization and Violent Extremism. As such, with the exception of the 2007 Convention, outputs by ASEAN on counter-terrorism matters are largely political and non-legally binding, nevertheless forming an important aspect of regional and international counter-terrorism measures in furtherance of the UN Global Counter-Terrorism Strategy goals.
During the 31st ASEAN Summit, held in November 2017, a central focus of the discussions was on extremism and terrorism. During the Summit, endorsement was given to the Manila Declaration to Counter the Rise of Radicalization and Violent Extremism, which was adopted during the 11th ASEAN Ministerial Meeting on Transnational Crime held in the Philippines, as well as the updated ASEAN Comprehensive Plan of Action on Counter Terrorism. Through the Manila Declaration, ASEAN is seeking to "counter radicalisation and violent extremism, in particular those which lead to terrorism in all forms and manifestations, through the prevention of radicalisation, financing, recruitment, and mobilization of individuals into terrorist groups" (Republic of the Philippines Department of the Interior and Local Government, 2017). Significantly, the ASEAN Law Ministers were also active during the Summit "progress[ing] ... the implementation of various programmes and activities to enhance legal cooperation in ASEAN, and in particular the discussions to elevate the Mutual Legal Assistance Treaty (MLAT) to an ASEAN instrument and efforts to finalize the text of the Model ASEAN Extradition Treaty (MAET)" (ASEAN, 2017, para. 35).
Brief mention should be made here too of the establishment, in November 2002, of the Southeast Asia Regional Centre for Counter-Terrorism in Malaysia, the overarching purpose of which is to strengthen regional and international cooperation and strengthen capacity.
Human rights instruments
In terms of its principal human rights related instruments, the first to note here is the ASEAN Charter, which came into effect in 2008. A number of its underpinning article 2 principles are of especial relevance to counter-terrorism efforts, notably ASEAN commitments to:
h. adherence to the rule of law, good governance, the principles of democracy and constitutional government;
i. respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;
j. upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States.
Additionally, the Organization's principal dedicated human rights instrument is the ASEAN Human Rights Declaration 2012 (adopted 18 November 2012). In addition to articulating a joint understanding of and approach to human rights among ASEAN Member States, the Declaration also serves other important functions. One is that it further develops and explains the mandate of the ASEAN Intergovernmental Commission on Human Rights, which was created by article 14 ASEAN Charter. Furthermore, some regard the Declaration as a possible precursor to the adoption of a formal regional human rights convention, whilst others have criticized the Declaration for being "fatally flawed" in terms of its relationship with international human rights law standards (Human Rights Watch, 2012).
Whilst the Declaration and creation of the Commission represent important steps towards the development of regional human rights standards, the substantive provisions of the Declaration have been a source of concern and criticism too due to the risk that its more diluted text, compared with other international human rights law principles, might undermine rather than strengthen regional human rights standards. For example, the Declaration reflects the same preference of national over international approaches and standards contained in the 2007 ASEAN Convention. This is illustrated by article 7 which, in affirming the importance of human rights and international standards, states that "[a]t the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds." Similarly, concern has been expressed that where the Declaration states that rights must be exercised "as prescribed by law" that this may be problematic too since the national laws these refer to may themselves be unjust. As one commentator has observed: "The inclusion of these kinds of provisions seems contrary to the very purpose of a regional human rights declaration, which is to further the protection of the rights of individuals by subjecting national laws and practices to the scrutiny of an institution beyond the state." (Renshaw, 2013.)
As the Commission's guide explains (ASEAN, 2016, para. 17), the approach of ASEAN to human rights has been influenced by the belief that "freedom, progress and national stability are promoted by a balance between the rights of the individual and those of the community, through which many individual rights are realized, as provided for in the Universal Declaration of Human Rights" (Chalermpalanupap, 2008).
Whilst international human rights permit some limitation of rights in certain situations, the reference in the guide of balancing the rights of individuals against those of the wider community risks being interpreted as diluting and eroding the more vulnerable rights of the former in favour of the latter, which should never be the effect of a human rights instrument.
More encouragingly, the Commission's mandate includes "encourag[ing] ASEAN Member States to consider acceding to and ratifying international human rights instruments" as part of establishing a regional framework for cooperation on human rights matters (ASEAN, 2016, p. 18). The Commission's functions and powers are limited though to developing, promoting, encouraging, advising on, engaging in dialogue and consultation with key actors in pursuit of such agendas. As such, in contrast to other non-judicial regional human rights bodies considered in this Module, the ASEAN Intergovernmental Commission on Human Rights has no real power to, e.g., undertake independent investigative functions (such as of individual complaints) nor does it have any enforcement powers. While the Commission has the ability to prepare studies on thematic issues of human rights in the ASEAN region, or to submit reports as is appropriate, as of June 2018 it has not published on issues relating to counter-terrorism approaches.
Key ASEAN human rights instruments
South Asia: The South Asian Association for Regional Cooperation
The South Asian Association for Regional Cooperation (SAARC) was established in 1985, comprising eight Member States, and has its Secretariat in Kathmandu, Nepal.
Its principal objectives, as outlined in the Charter of the South Asian Association for Regional Cooperation (adopted 8 December 1985), include the promotion and strengthening of collective self-reliance among the countries of South Asia; the promotion of active collaboration and mutual assistance in the economic, social, cultural, technical and scientific fields; and the strengthening of cooperation among themselves in international forums on matters of common interest. Although security is not expressly mentioned, counter-terrorism is a matter of common concern for SAARC.
Compared with the frameworks of other regional organizations examined in this Module, the normative strength of its instruments is less since they are not intended to have legal force. Decisions at all levels within SAARC are taken on the basis of unanimity; and bilateral and contentious issues are excluded from the deliberations of the Association.
SAARC was one of the first regional organizations to adopt a binding treaty against terrorism. During the Second SAARC Summit (Bangalore, 16-17 November 1986), the Heads of State or Government agreed that cooperation among SAARC States was vital if terrorism was to be prevented and eliminated from the region. The leaders unequivocally condemned all acts, methods and practices of terrorism as criminal and deplored their impact on life and property, social economic development, political stability, regional and international peace and co-operation. The following year, at their Third Summit (Kathmandu, 2-4 November 1987), the SAARC Regional Convention on Suppression of Terrorism was adopted and came into effect on 2 August 1988 following its ratification by all Member States.
An Additional Protocol to the SAARC Regional Convention was adopted at the Twelfth Summit (Islamabad, 2-6 January 2004) in order to update the Convention on account of the obligations devolving on Member States in terms of Security Council Resolution 1373 and the International Convention for Suppression of Financing of Terrorism. Specifically, the Additional Protocol criminalizes the provision, collection or acquisition of funds for the purpose of committing terrorist acts and taking further measures to prevent and suppress financing of such acts. The Protocol entered into force on 1 December 2006 following again ratification by all Member States. One notable feature of the Protocol is that under article 16, it is possible for a State party to deny refugee status in respect of any person for whom "there are serious reasons for considering that he or she has committed an offence set forth in Article 4 of this Additional Protocol", which encompasses terrorism-related offences.
Since 2007 especially, the organization has focused more on how to effectively implement the provisions of these counter terrorism instruments, such as the drafting of enabling legislation within national legal systems.
Key SAARC counter-terrorism instruments
Human rights instruments
SAARC does not have a dedicated human rights instrument, nor is any reference made to the promotion of human rights, democracy or the rule of law within its founding 1985 SAARC Charter. Instead, in reiterating a number of article 2 Charter of the United Nations principles, its underpinning values and objectives include peace, freedom, social justice, economic prosperity, mutual understanding, good neighbourly relations, and meaningful cooperation among the Member States (article 2). These, however, were intended to govern inter-Member State relations rather than individual rights.
The same is true of the 1987 SAARC Regional Convention. A notable inclusion, however, in the Additional Protocol in 2004, is article 19 of "Rights and Obligations under International Law". This provision reflects the discourse and approaches of the United Nations and global counter-terrorism efforts, reflected in key instruments such as Security Council Resolution 1373 regarding the importance of counter-terrorism efforts being in accordance with "the purposes and principles of the Charter of the United Nations, international humanitarian law, and international human rights law".
Central Asia: Shanghai Cooperation Organization
The Shanghai Cooperation Organization (SCO) was founded in 2001 by China, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan. As of June 2018, it has eight Member States, four observer States as well as six dialogue partners. Its Secretariat - one of the Organization's two permanent bodies - is located in Beijing. The SCO is the largest regional security organization in terms of the total size of the populations falling within its scope, comprising China and India as two of the most populous States globally, the largest (Kazakhstan) and most populous (Uzbekistan) States in Central Asia, as well as the largest geographical State in the world (Russia), with the Organization set to expand further.
The SCO Charter was adopted in June 2002 and entered into force on 19 September 2003. Of particular interest here, under article 1 SCO Charter the Organization's main goals and tasks include: the development of multifaceted cooperation in the maintenance and strengthening of peace, security and stability in the region and promotion of a new democratic, fair and rational political and economic international order; and jointly combating terrorism, separatism and extremism in all of their manifestations, fighting different types of transnational criminal activity and dealing with illegal migration.
The principal regional instrument against terrorism is the Shanghai Convention on Combating Terrorism, Separatism and Extremism (adopted 15 June 2001, entered into force 29 March 2003). A particularly notable feature of the Convention is that it is unique as an international/regional anti-terrorism convention in extending beyond "terrorism" to including "separatism" and "extremism" within its scope. This reflects the so-called three '-isms', which are functions of the SCO.
As was considered in Module 4, the SCO adopts a hybrid approach to terrorism, both referring to the approaches of existing universal instruments against terrorism as well as adopting its own regional definition. The other definitions given in article 1.1 are:
2) "Separatism" means any act intended to violate territorial integrity of a State including by annexation of any part of its territory or disintegrate a State in a violent manner, as well as planning and preparing, aiding and abetting such act, and subject to criminal prosecuting in accordance with the national laws of the Parties;
3) "Extremism" means an act aimed at violent seizing or keeping power, and violently changing the constitutional system a State, as well as a violent encroachment upon public security, including organization, for the above purposes, of illegal armed formations and participation in them, criminally prosecuted in conformity with the national laws of the Parties.
As with other regional and universal instruments against terrorism, strengthening existing levels of cooperation lies at the core of the 2001 Convention (article 6). This may take many different forms, such as information exchange, implementing measures to prevent, identify and suppress those acts criminalized under the Convention, capacity-building and so forth.
In 2009, the 2001 Convention was supplemented by the 2009 Convention on Counter-Terrorism of the Shanghai Cooperation Organization. Notably, its broad definitional approach refers to the phenomenon of terrorism as an "ideology of violence" and a "practice of exerting influence on the decision-making of governments or international organizations by threatening or committing violent and (or) other criminal acts, connected with intimidating the population and aimed at causing injury to private individuals, society or the state". In addition to encouraging ongoing cooperation within its Membership, especially through information exchange aimed at preventing and combating terrorism, the 2009 Convention further provided a legal basis on which agents of a Member State may, with permission, enter the territory of another State in pursuit of a suspect.
Countering terrorism and violent extremism are high on the political agenda of the SCO. For example, during a gathering of member States in September 2017, plans were discussed on how to deepen practical cooperation on counter-terrorism among its membership (Economic Times, 2017).
In addition to promoting closer integration among its members in its areas of competence, the SCO develops external relations with other international organizations - such as the United Nations (SCO, 2017(d)), the International Organization for Migration (SCO, 2017(h)), United Nations Educational, Scientific and Cultural Organization (UNESCO) (SCO, 2017(g)), and the European Union (SCO, 2017(f)) - as well as with individual non-member States (SCO, 2017(b); 2017(c); 2017(e)). The diverse range of the contacts of the SCO suggests a broad understanding of and approach to international security on the part of SCO member States: one that is not limited to military affairs or law enforcement, but rather extends to issues such as migration, education, and culture.
Of note too, especially since some counter-terrorism approaches are military in nature, the SCO also cooperates with the International Committee of the Red Cross (ICRC), with a view to "maintain[ing] a dialogue on issues related to international humanitarian law (IHL) applicable […] to armed conflicts; help[ing] implement IHL norms and other international legal documents; circulat[ing] legal information about […] IHL and its implementation; develop[ing] a dialogue in the humanitarian sphere; and organis[ing] events to prevent and respond to emergencies" (SCO, 2017(a)).
An important mechanism that has been established to facilitate regional anti-terrorism cooperation has been the creation of the Regional Anti-Terrorist Structure (RATS), represented and input into by national security services. Its key functions include operations and data exchange among individual SCO Member States to detect and prevent terrorist activities in the region, and to 'blacklist' terrorist persons and organizations.
Human rights instruments
The SCO does not have a dedicated human rights instrument or monitoring mechanism. As such, the primary treaty reference to human rights is that contained in article 1 of the SCO Charter, which provides that an overall objective of the Organization includes "promoting enjoyment of human rights and fundamental freedoms in accordance with the international obligations of the member States and their national legislation".