ASEANS HUMAN RIGHTS

Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, wahyuningrum@gmail.com

Photo: courtesy of Reuters, 2012

ASEAN (Association of the Southeast Asia Nations)

10 member countries Established. 1967 ASEAN Charter 15 Dec 2008

ASEAN Community

HUMAN RIGHTS IN ASEAN

Human rights continue to be one of sensitive issues in ASEAN and some of its member countries: Laos, Vietnam, Singapore, Malaysia and Brunei Darussalam. Being a Western idea, incompatible with culture and values, the rising economic achievements are often found as a source of confidence for rejecting democracy and human rights. In fact, Constitutions of ASEAN countries guarantee human rights protection, albeit at different level.

the Constitutions that provide extensive Human Rights guarantee (the Philippines, Thailand, Cambodia, Indonesia, and Lao), the Constitutions that provide Human Rights guarantees with various restrictions (Malaysia, Singapore, Vietnam and Myanmar), the Constitutions that provide very few guarantees of Human Rights (Brunei Darussalam). The differences also appear whether the Constitutions formulate rights strictly as citizens rights or generally as human rights regardless of citizenship.

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed Right to life and livelihood ASEAN Member States The Philippines, Thailand, Malaysia, Cambodia, Singapore, Indonesia

Right to be equal and personal freedom

Right to property Right to be free from arbitrary arrest, detention, and raid Right to confidentiality of communication and correspondence Right to freedom of saying opinion and expression, freedom of the press

The Philippines, Thailand, Malaysia, Cambodia, Myanmar, Singapore, Indonesia

The Philippines, Thailand, Cambodia, Myanmar, Vietnam, Indonesia The Philippines, Thailand, Malaysia, Laos, Myanmar, Vietnam The Philippines, Vietnam The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed Right to freedom of assembly ASEAN Member States The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia The Philippines, Thailand, Laos, Vietnam

Right to deliver objection and petition

Right to freedom of beliefs, religion and to practice religion

Right to information and communication Right to a just trial Right to be free from coercion, torture and intimidation Right not to be declared as guilty before any fixed verdict exists (presumption of innocence)

The Philippines, Thailand, Brunei Darussalam, Malaysia, Cambodia, Laos, Myanmar, Singapore, Indonesia
The Philippines, Thailand, Vietnam, Indonesia The Philippines, Thailand The Philippines, Cambodia, Indonesia The Philippines, Thailand, Vietnam

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed Right to be free from slavery and forced labor Right to be free from cruel and degrading punishment Right to be free from imprisonment due to the incapability of paying debt or tax Right of not to be adjudicated and punished twice for the same act Right of not to be punished based on retroactive legislation Right to vote and be elected ASEAN Member States The Philippines, Thailand, Malaysia, Singapore The Philippines, Myanmar, Indonesia The Philippines The Philippines, Malaysia The Philippines, Thailand, Malaysia, Myanmar, Indonesia The Philippines, Thailand, Brunei Darussalam, Malaysia, Cambodia, Laos, Myanmar, Vietnam, Indonesia

Right of indigenous people, ethnic group, The Philippines, Thailand, Laos, Indonesia tribe, and traditional community to conserve local custom and wisdom

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed
Right to place of dwelling Right of healthcare Right to protection and equality for women labor Right to partake in social, political and economic life Right to education Right to be equal before the law and have protection of the law Right to be free from discriminative treatment on whatsoever grounds Right to be free to travel

ASEAN Member States

The Philippines, Thailand, Vietnam, Indonesia The Philippines, Thailand, Cambodia, Laos, Vietnam, Indonesia The Philippines, Cambodia, Myanmar, Vietnam The Philippines, Thailand, Cambodia, Vietnam, Indonesia The Philippines, Thailand, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Thailand, Cambodia, Laos, Indonesia Thailand, Malaysia, Cambodia, Vietnam, Indonesia

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed ASEAN Member States Right to familys right, dignity, reputation and privacy Thailand Right to confidentiality of personal data Right of children, juveniles, women, pregnant women, elderly and persons with disability to get protection and service Right to freedom of venture and occupation, and guarantee of work safety Right to freedom of academic Right to welfare, public facility and relief from the State for the poor and groups with special needs Right to sue government institution owing to an action perpetrated Right to follow up and request for responsibility of political officials Thailand Thailand, Laos, Myanmar

Thailand, Cambodia, Laos, Myanmar, Vietnam, Indonesia Thailand Thailand, Laos, Indonesia

Thailand Thailand, Laos

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed Right to form union and organization Right of not to be banished of exiled Right to social security Right of house wives to have the same values as when they are working outside the house Right to perform a strike and demonstration Right of women to be free from discrimination and exploitation Right of children to life, growth and development, obtain education, protection and free from discrimination ASEAN Member States Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Malaysia, Singapore Cambodia, Indonesia Cambodia Cambodia Cambodia, Vietnam Cambodia, Vietnam, Indonesia

Right and freedom to perform study, research Laos and development of science and technology

Human Rights in the Constitution of ASEAN Member States

Rights that are Guaranteed
Right to establish a family and to generate offspring through a lawful marriage Right to advance themselves in fight for their rights collectively Right to a nationality Right to prosper and deserve a healthy environment

ASEAN Member States

Indonesia

Indonesia Indonesia Indonesia

Rights are in/not in Constitutions of ASEAN countries

Rights are not in Constitutions of ASEAN countries

Specific Rights in Constitutions of ASEAN countries

Right to be free from forced disappearance; Right of the minorities, whether ethnic, religion, and cultural minorities; Right to be free from discrimination based on sexual orientation and gender identity; Rights of the internal refugees; Right to receive remedy and rehabilitation due to Human Rights violation; and Right and protection for migrant workers and member of their families

Right of mothers and pregnant women to receive healthcare and aid; Right of the poor to obtain relief to live properly; Right to be free from slavery and forced labor; Right to protection for the elderly

HUMAN RIGHTS IN ASEAN

ASEAN member countries are the state parties to some international treaties, ASEAN member countries have participated the Universal Periodic Review or UPR While generalisation is impossible, statistics put together by UPR Info has identified that

torture, the protection of human rights defenders, freedom of opinion and expression, enforced disappearances, extrajudicial executions, freedom of religions and cooperation with civil society at the national level, : are the frequent inquiries by the international community during the review process in the first cycle of UPR.

All ASEAN member countries had reported their human rights records in the first cycle of UPR, now currently participating the second cycle until 2016

HUMAN RIGHTS IN ASEAN

Country ICCPR ICESR CAT CERD CEDAW CRC CED CRPD CMW Brunei Cambodia Indonesia Laos Malaysia Myanmar Philippines x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x S S S x x x x x x x x

Singapore
Thailand Vietnam x x x x x x x

x
x x

x
x x S

x
x S

Pledges of ASEAN countries in the 1st UPR

(except Malaysia and Myanmar) ASEAN countries made their voluntary pledges on issues related to:

engagement with civil society organisation, ratification of international instruments, addressing socio-economic problems, right to education, incorporating international convention into domestic legislation, gender responsive to issues on women and children, issue standing invitation to special procedures, strengthening of national human rights institutions, to address the killings of activists and media professionals, amend national laws to be in line with international laws, accelerate reform on justice systems, and public dissemination of human rights convention

ASEAN countries in the 1st UPR

Date of UPR Recommendations

Accepted
Brunei Cambodia Indonesia Laos Malaysia Dec 2009 Dec 2009 Apr 2008 May 2010 Feb 2009 33 91 9 86 62

Rejected
27 0 0 18 22

No clear positions
0 0 4 0 19

Pending decision
25 0 0 0 0

Myanmar
Philippines Singapore Thailand Vietnam

Jan 2011
Apr 2008 May 2011 Oct 2011 May 2009

77
12 84 134 94

95
4 28 49 46

12
0 0 0 5

3
0 0 0 1

ASEAN countries reactions in the 1st UPR

ACCEPTED
The rights of persons with

REJECTED
death penalty, asylum

disabilities, human rights education, right to education, right to health, right to housing, poverty reduction, trafficking in persons, womens rights, efforts to combat corruptions, improving and strengthening National Human Rights Institutions, and child rights.

seekers, emergency decree, the recruitment of child labour, ratification of Rome Statue, working with special procedures, freedom of expression, freedom of opinion and freedom of association are the most rejected issues by ASEAN member states

In Search of Human Rights Mechanism

Illustration: courtesy of The Jakarta Globe, Sept 2013

1993 FMs agreed that ASEAN should consider the establishment of an appropriate regional mechanism on human rights 1995 Establishment of the Working Group on ASEAN Human Rights Mechanism (WG) 1996 First meeting between WG and ASEAN SOM Establishment of NHRIs in Philippines 1987, Indonesia 1993, Thailand 1998 and Malaysia 1999 2004 Adoption of VAP with action programs relating to human rights 2007 Signing of Declaration of Cooperation among the 4 NHRIs 2007 Signing of the ASEAN Charter

Preamble Adhering to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms; Purposes (Art. 1) 7. To strengthen democracy, enhance good governance, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN; Principles (Art. 2) 2. ASEAN and its Member States shall act in accordance with the following Principles: (i) Respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice

ASEAN human rights body (Art. 14)

listed under Chapter IV Organs

1.

In conformity with the purposes and principles of

Human Rights in ASEAN Charter

2.

the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.

The 3Cs in Human Rights Architecture

ASEAN Human Rights Systems

Conventions: Norms/

Commission/Committee

ASEAN Human Rights Court??

Instruments ACWC 2010

AICHR 2009

ACMW 2008

The Commissions
AICHR

ACWC

Created based on Article 14, Charter Established: 23 Oct 2009 10 Representatives 14 Mandates No individual complaint Provide advises to ASEAN sectorial government upon request Can obtain information on HR issues from Member States Consult stakeholders Submit Annual Report

Created based on SC Blueprint Established: 7 April 2010 20 Representatives (Women Rights and Child Rights) 13 Mandates

No individual complaint Provide advises to ASEAN sectorial government upon request Consult CS, women, children Advocate on behalf of women and children & encourage ASEAN Member States to improve their situation Submit Annual Report

The Fact About AICHR & ACWC

AICHR & ACWC are part of ASEAN organs AICHR & ACWC work based on TOR, RoP, and Work Plan AICHR & ACWC members are representing the government

AICHR reports to Foreign Ministers

ACWC reports to ASEAN Ministers Meeting on Social Welfare and Development

AICHR is an overarching body on human rights ACWC is specialized body on the rights of women and children

AICHR has standard setting mandate: Declaration, Conventions

ACWC can speak on behalf of women, children, victims

AICHR & ACWC:

MODALITIES, PRINCIPLES, NATURE
noninterference intergovernmental body evolutionary approach

consultative

consultation

consensus

Protection of HRs

Promotion of HRs

On November 18, 2012, the Association adopted ASEAN Human Rights Declaration (AHRD) along with the Phnom Penh Statement. It protects many of the universal human rights: it guarantees freedom and equality in dignity and rights, forbids discrimination; supports the preservation of human life, supports the protection of ones honour, family, and property; and affirms the human right to education, medical and social care and protection, and a clean environment. It also upholds that development is an inalienable part of human rights and encourages the right of peace for everyone. AHRD is composed of a (I) Preamble, (II) General Principles, (III) Civil and Political Rights, (IV) Economic, Social and Cultural Rights, (V) Right to Peace, (VI) Right to Development and (VII) Cooperation on the Promotion and Protection of Human Rights.

ASEAN Human Rights Declaration

AHRD lies its claims on the adherence to the enjoyment of human rights and freedoms must be balanced with

the performance of duties (Article 6), the regional and national context (Article 7), limitation of rights (Article 8), and reference to national laws i.e. regarding the right to participate in the government (Article 25.1), right to vote (Article 25.2), right to form ad join trade union (Article 27.2).

AHRD excluded the freedom of association, which was initially appeared in Article 24 along with the freedom of peaceful assembly. The earlier drafts contained the whole and specific sections duties and responsibilities and limitation of rights of the individual. However, at the end, this concern has been condensed into Article 6-8 Further more, AHRD left out ethnic minority and indigenous people as rights holders.

ASEAN Human Rights Declaration

AHRD reflects ASEANs ambiguity to its commitment on human rights as the last Article of AHRD and the Phnom Penh Statement repetitively state the commitment to compliance to the international standards. Rather than taking AHRD as the aspirational goal that provides a platform to universalise human rights and expand ownership of international norms at the regional level, ASEAN weight more on national interest over the Universalist narrative. The process of drafting AHRD has been criticised as exclusive and not participatory Phnom Penh Statement guarantees the compliance with the international norms and the last Article of AHRD states

ASEAN Human Rights Declaration

nothing in this Declaration may be interpreted as implying for any State, group, or person any right to perform any act aimed at undermining the purposes and principles of ASEAN, or at the destruction of any of the rights and fundamental freedoms set forth in this Declaration and international human rights instruments to which ASEAN Member States are parties

Article 9: . The process of such realisation shall take into account peoples participation, inclusivity and the need for accountability. Article 22: ... All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated. Article 27 (3) Those who employ children and young people in work harmful to their morals or health, dangerous to life, or likely to hamper their normal development, including their education should be punished by law. Article 36: ASEAN Member States should adopt meaningful people-oriented and gender responsive development programmes aimed at poverty alleviation -- Erasure of the section on duties and responsibilities, condensed into Art 6

ASEAN Human Rights Declaration

Inclusion of CSOs Inputs

Civil Society Enggagement

AICHR has slightly opened-up human rights debate within and inter-regional cooperation and as generated more discussion in bilateral and multilateral relations among states in ASEAN and also with Dialogue Partners as well as among civil society in the region. The later has been largely marginalised from political diplomacy in ASEAN member states, particularly in the area of political-security and economic cooperation talks. Along the years, civil society defines its role in ASEAN as

the vehicle of citizens participation, the voice for the voiceless, the promoter to social cohesion and equality, the architect of social capacities, the advocate to democratize ASEAN, supporter of the ASEAN reform, the ASEANs watch-dog to ensure that the Association is accountable, and act as an important check-and-balance for the promotion and protection of human rights in the region.

The growing activism of civil society organisations has been contesting the ASEANs way of human rights socialisation, especially on holding non-interference and the rejection to the inclusion of self-determination in AHRD. For the last seventeen years of engagement, civil society has taken different approaches:

a) working with the officials, b) confrontation, c) crossing-over, and d) engagement as a partner.

STUDIES/FOCAL POINTS:

Singapore and Malaysia are taking a lead in coming up with the study on Corporate Social Responsibilities (CSR) and human rights, Indonesia is the focal point for the research on migration and human rights as well as on MDG post-2015 and human rights. Thailand and the Philippines are coordinating the drafting of the AICHR Guideline on engaging civil society groups. Laos is taking a responsibility on disseminating information on rights to peace. The Philippines is concerned more on trafficking in persons, maternal mortality and womens rights.

On 25 June 2013, the Government of Indonesia invited AICHR Representatives on UPR-like Human Rights Dialogue to hear its report on human rights situation, its challenges and possible cooperation between Government of Indonesia and AICHR in the future.

Update: AICHR

Thailand has agreed to be the state to report in 2014. This breakthrough practice may lead to the implementation of the Article 4.10 of the TOR, which is to obtain information from ASEAN Member States on the promotion and protection of human rights, which one of the few strong mandates of AICHR. This exercise has potential to restore the public confidence in the regional system of human rights.

On the first week of November 2013, Indonesian Representative to AICHR hosted the 2nd Jakarta Human Rights Dialogue (JHRD), taking prevention of torture as its theme. In mid-November 2013, Thailand Representative to AICHR conducted the five-day training for law enforcement officials which include a one-day field visit to the Criminal Court and Klongprem Central Prison to allow participants from ASEAN countries to observe detention and treatment of female, child and undocumented migrants facilities.

TOR AICHR, Its Timelines & CSO

July 2008 HLP was established Dec 2008, First Submission July 2009 Final Submission Oct 2009 Launched TOR AICHR
2nd Consultation in Kuala Lumpur, March 2009
3rd Consultation in Jakarta, July 2009 Annual Report of AICHR Performance

Monitoring & Pressure for the implementation of TOR AICHR

1st Consultation in Manila, Sept 2008

TOR AICHR

Review 2014?

2014-2015 Review TOR

ACWC has finalized its Rules and Procedures (ROP), five-year work plan and agreed on 15 projects concept notes, the compilation of country of best practices in eliminating violence against women and children that is scheduled to be published in June 2013.

ACWC has met with UN Special Representatibe of Secretary General for the Rights of the Child on January 2012 in Manila.
ACWC conducted consultations with civil society in thier meetings in Indonesia during 2011-2012. The sixth meeting of ACWC on April 1-2, 2013 in Jakarta also discussed the workable mechanisms of civil society engagement in the implementation of the ACWC Work Plan. Declaration on the Elimination of Violence against Women and Children, 2013.

ACWC: updated

Challenges

While the regions economy is growing and more dynamic as compared to many other regions, some obstacles remain:

lack of democracy, imbalance concept of development, excessive notion of non interference in domestic affairs, and the claim of Asian values are obstacles to the creation of a political culture to foster respect for human rights.

This also explains why the works of the AICHR in the past few years did not progress as we expected. The AICHR suffers from a lack of direction and focus. (the continuing debate on the AICHR TOR) - the different political and human rights cultures of ASEAN member states Lack of political will on human rights

Non-Interference?
Non-interference is the center-piece of the so-called

ASEAN way of regionalism. (Officials said repetitively that) Non-interference is going to stay. It is ASEAN Identity.
Is it Non-interference principle that hinder ASEAN to

prevent mass atrocities and respond to crisis? Or the absence of political will of Member States?
Or is it a matter of asking help?

Non-interference

While ASEAN views the principle of non interference as a sacrosanct principle, the organization overlooked the fact that it is one of the UN Charters principles (Article 2 para. 7). Over the past 67 years, the principle is seen as a dynamic concept. On the other hand, ASEAN still clings to this concept in a static manner. In purely legal terms, interference is not just columns of tanks crossing the border into another territory. However, the static view of the non interference principle is no longer applicable to gross violations of human rights, which under the Vienna Consensus 1993 is a matter of international concern Raising a certain issue in a bilateral, regional or international forum and consequently adopting a resolution on the matter may also constitute interference in a countrys domestic affairs.

Asian values

ASEANs member countries attribute the organizations conservative attitude to its argument of Asian values. The debate between human rights as universal values on one hand, and as a regional particularity on the other hand, reached its peak during the Second World Conference on Human Rights in 1993. In his book Development as Freedom, Prof. Amartya Sen dismissed Asian values as nothing but authoritarian values.

But how ASEAN can defend this values based on non-derogable human rights. Can you defend arbitrary detention, violation to rights to life, torture, unfair trial and extreme poverty from the perspective of Asian values?
We cannot expect ASEAN will make its progress on the respect of human rights as matter of policy except if ASEAN also makes progress in its promotions of democracy. Not only because the two are inter-related but more than that one major element of human rights namely the civil and political rights, are in essence prerequisites to democracy