ASEAN Human Rights (Yuyun Wahyuningrum) 2013

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This PPT is presented in the 28th DTP Session in Dili, Timor Leste, November 2013

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ASEAN Human Rights (Yuyun Wahyuningrum) 2013

  1. 1. ASEAN’S HUMAN RIGHTS Yuyun Wahyuningrum, Senior Advisor on ASEAN & Human Rights, HRWG, wahyuningrum@gmail.com Photo: courtesy of Reuters, 2012 
  2. 2. ASEAN (Association of the Southeast Asia Nations) 10 member countries Established. 1967 ASEAN Charter 15 Dec 2008
  3. 3. ASEAN Community
  4. 4. 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.
  5. 5. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to life and livelihood The Philippines, Thailand, Malaysia, Cambodia, Singapore, Indonesia Right to be equal and personal freedom The Philippines, Thailand, Malaysia, Cambodia, Myanmar, Singapore, Indonesia Right to property The Philippines, Thailand, Cambodia, Myanmar, Vietnam, Indonesia Right to be free from arbitrary arrest, detention, and raid The Philippines, Thailand, Malaysia, Laos, Myanmar, Vietnam Right to confidentiality of communication and correspondence The Philippines, Vietnam Right to freedom of saying opinion and expression, freedom of the press The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia
  6. 6. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to freedom of assembly The Philippines, Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Right to deliver objection and petition The Philippines, Thailand, Laos, Vietnam Right to freedom of beliefs, religion and to practice religion The Philippines, Thailand, Brunei Darussalam, Malaysia, Cambodia, Laos, Myanmar, Singapore, Indonesia Right to information and communication The Philippines, Thailand, Vietnam, Indonesia Right to a just trial The Philippines, Thailand Right to be free from coercion, torture and intimidation The Philippines, Cambodia, Indonesia Right not to be declared as guilty before any fixed verdict exists (presumption of innocence) The Philippines, Thailand, Vietnam
  7. 7. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to be free from slavery and forced labor The Philippines, Thailand, Malaysia, Singapore Right to be free from cruel and degrading punishment The Philippines, Myanmar, Indonesia Right to be free from imprisonment due to the incapability of paying debt or tax The Philippines Right of not to be adjudicated and punished twice for the same act The Philippines, Malaysia Right of not to be punished based on retroactive legislation The Philippines, Thailand, Malaysia, Myanmar, Indonesia Right to vote and be elected 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
  8. 8. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to place of dwelling The Philippines, Thailand, Vietnam, Indonesia Right of healthcare The Philippines, Thailand, Cambodia, Laos, Vietnam, Indonesia Right to protection and equality for women labor The Philippines, Cambodia, Myanmar, Vietnam Right to partake in social, political and economic life The Philippines, Thailand, Cambodia, Vietnam, Indonesia Right to education The Philippines, Thailand, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Right to be equal before the law and have protection of the law Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Right to be free from discriminative treatment on whatsoever grounds Thailand, Cambodia, Laos, Indonesia Right to be free to travel Thailand, Malaysia, Cambodia, Vietnam, Indonesia
  9. 9. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to family’s right, dignity, reputation and privacy Thailand Right to confidentiality of personal data Thailand Right of children, juveniles, women, pregnant women, elderly and persons with disability to get protection and service Thailand, Laos, Myanmar Right to freedom of venture and occupation, and guarantee of work safety Thailand, Cambodia, Laos, Myanmar, Vietnam, Indonesia Right to freedom of academic Thailand Right to welfare, public facility and relief from the State for the poor and groups with special needs Thailand, Laos, Indonesia Right to sue government institution owing to an action perpetrated Thailand Right to follow up and request for responsibility of political officials Thailand, Laos
  10. 10. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to form union and organization Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore, Vietnam, Indonesia Right of not to be banished of exiled Malaysia, Singapore Right to social security Cambodia, Indonesia Right of house wives to have the same values as when they are working outside the house Cambodia Right to perform a strike and demonstration Cambodia Right of women to be free from discrimination and exploitation Cambodia, Vietnam Right of children to life, growth and development, obtain education, protection and free from discrimination Cambodia, Vietnam, Indonesia Right and freedom to perform study, research Laos and development of science and technology
  11. 11. Human Rights in the Constitution of ASEAN Member States Rights that are Guaranteed ASEAN Member States Right to establish a family and to generate offspring through a lawful marriage Indonesia Right to advance themselves in fight for their rights collectively Indonesia Right to a nationality Indonesia Right to prosper and deserve a healthy environment Indonesia
  12. 12. 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 of mothers and pregnant women to receive healthcare and aid;  Right to be free from discrimination based on sexual orientation and gender identity;  Right of the poor to obtain relief to live properly;  Rights of the internal refugees;  Right to be free from slavery and forced labor;  Right to receive remedy and rehabilitation due to Human Rights violation; and  Right to protection for the elderly  Right and protection for migrant workers and member of their families
  13. 13. 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
  14. 14. HUMAN RIGHTS IN ASEAN Country ICCPR ICESR CAT CERD Brunei CEDAW CRC x CED x CRPD CMW S Cambodia x x x x x x x x Indonesia x x x x x x S x Laos x x x x x x S x Malaysia x x x Myanmar x x x x x x x x x x x x x x x Philippines x x x x Singapore Thailand x x Vietnam x x x S x S x x
  15. 15.    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
  16. 16. ASEAN countries in the 1st UPR Date of UPR Recommendations Accepted Rejected No clear positions Pending decision Brunei Dec 2009 33 27 0 25 Cambodia Dec 2009 91 0 0 0 Indonesia Apr 2008 9 0 4 0 Laos May 2010 86 18 0 0 Malaysia Feb 2009 62 22 19 0 Myanmar Jan 2011 77 95 12 3 Philippines Apr 2008 12 4 0 0 Singapore May 2011 84 28 0 0 Thailand Oct 2011 134 49 0 0 Vietnam May 2009 94 46 5 1
  17. 17. ASEAN countries’ reactions in the 1st UPR ACCEPTED  The rights of persons with disabilities, human rights education, right to education, right to health, right to housing, poverty reduction, trafficking in persons, women’s rights, efforts to combat corruptions, improving and strengthening National Human Rights Institutions, and child rights. REJECTED  death penalty, asylum 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
  18. 18.     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
  19. 19. 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)  1. Human Rights in ASEAN Charter 2. listed under Chapter IV Organs “In conformity with the purposes and principles of 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.”
  20. 20. 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
  21. 21. The Commissions” AICHR          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 ACWC          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
  22. 22. 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 AICHR is an overarching body on human rights AICHR has standard setting mandate: Declaration, Conventions ACWC is specialized body on the rights of women and children ACWC reports to ASEAN Ministers Meeting on Social Welfare and Development ACWC can speak on behalf of women, children, victims
  23. 23. AICHR & ACWC: MODALITIES, PRINCIPLES, NATURE noninterference intergovernmental body evolutionary approach consultative consultation consensus
  24. 24. Protection of HRs Promotion of HRs
  25. 25.   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 one’s honour, family, and property; and affirms the human right to education, medical and social care and protection, and a clean environment.  ASEAN Human Rights Declaration On November 18, 2012, the Association adopted ASEAN Human Rights Declaration (AHRD) along with the Phnom Penh Statement. 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.
  26. 26.  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).  ASEAN Human Rights Declaration 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.
  27. 27.   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.  ASEAN Human Rights Declaration AHRD reflects ASEAN’s 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. 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  “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”
  28. 28.   Article 22: ... All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated.  ASEAN Human Rights Declaration Article 9: …. The process of such realisation shall take into account peoples’ participation, inclusivity and the need for accountability. 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 Inclusion of CSO’s Inputs
  29. 29. 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 citizen’s 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 ASEAN’s 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 ASEAN’s 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.
  30. 30.  STUDIES/FOCAL POINTS:       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   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 women’s rights. 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.
  31. 31. TOR AICHR, Its Timelines & CSO July 2008 HLP was established Dec 2008, First Submission July 2009 Final Submission Oct 2009 Launched TOR AICHR 2014-2015 Review TOR 3rd Consultation in Jakarta, July 2009 Annual Report of AICHR Performance 2nd Consultation in Kuala Lumpur, March 2009 1st Consultation in Manila, Sept 2008 Monitoring & Pressure for the implementation of TOR AICHR TOR AICHR Review 2014?
  32. 32.  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
  33. 33. Challenges  While the region’s 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
  34. 34. 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?
  35. 35. 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 Charter’s 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 country’s domestic affairs.
  36. 36. Asian values  ASEAN’s member countries attribute the organization’s 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

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