Considering the ASEAN Human Rights Declaration and the UN Human Rights Day

The website of the United Nations for the Human Rights Day on 10 December 2012 calls this “an opportunity, every year, to celebrate human rights, highlight a specific issue, and advocate for the full enjoyment of all human rights by everyone everywhere.” And it says that “the spotlight is on the rights of all people – women, youth, minorities, persons with disabilities, indigenous people, the poor and marginalized – to make their voices heard in public life and be included in political decision-making.”

This year provides a special opportunity to celebrate an important new achievement: the adoption of the ASEAN Human Rights Declaration. And the way towards this achievement is also a reminder how difficult it was that the voices of all people could be heard and be included in political decision making.

There is a long prehistory. In 1993, the UN Vienna Declaration and Program of Action emphasized the need “to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist.” In the same year, the ASEAN Inter-Parliamentary Organization (AIPO) stated that “it is…the task and responsibility of member states to establish an appropriate regional mechanism on human rights.”

So a Working Group for an ASEAN Human Rights Mechanism was established, with the goal to establish an intergovernmental human rights commission for ASEAN. Nineteen years later, at the 21st ASEAN Summit and related meetings held in Phnom Penh from 15 to 20 November 2012, an ASEAN Human Rights Declaration was adopted. The full text is here in The Cambodia Herald.

But it was not smooth sailing to arrive there.

Already in February 2009, a meeting of the ASEAN People’s Forum had offered to cooperate to achieve broad participation:

“We represent a group of more than 1,000 participants from the ASEAN region, and in solidarity with our friends and colleagues from all over the world, have come together… for the ASEAN Peoples’ Forum (APF) – Fourth ASEAN Civil Society Conference (ACSC IV).

    We call on ASEAN and its member states to:

  • Ensure a transparent and inclusive process in the establishment of the ASEAN human rights body (ARHB), by ensuring the widest representation of organizations in the drafting, adoption, and implementation of its terms of reference. The AHRB must be guided by human rights principles of non-discrimination, self-determination, substantive equality, interdependence, inter-relatedness, universality, and indivisibility of human rights standards.”

The following ASEAN declaration on its roadmap of 1 March 2009 does not refer to this civil society input, but makes promises for the future in the Cha-am Hua Hin Declaration on the Roadmap for the ASEAN Community (2009-2015).

The goal “to bring the ASEAN Vision 2020 into reality by setting the goal of building an ASEAN Community by 2020, comprising three pillars, namely political-security community, economic community and socio-cultural community” is recalled, with “the purpose of ensuring durable peace, stability and shared prosperity in the region.” The Roadmap document solemnly declares among other points:

  • 4. ALSO TASK concerned Ministers and the Secretary-General of ASEAN to mobilize resources from Member States, Dialogue and Sectoral Partners, Development Partners of ASEAN as well as from other external parties to implement this Declaration; and
  • 5. PLEDGE our resolve and commitment to promote ASEAN peoples to participate in and benefit fully from the process of ASEAN integration and community building.

But though even external parties were invited to cooperate, and a pledge was made “to promote ASEAN peoples to participate in and benefit fully from the process of ASEAN integration and community building,” regionally organized civil society groupings met with difficulties, as some ASEAN member governments declared to authorize or not to authorize which Non-Government Organizations could raise their voice and appeal to ASEAN.

Government intervention became most acute before the Phnom Penh summit in November 2012, as expressed on the Forum Asia website – excerpts follow here:

Cambodia: Stop disrupting civil society events and restricting freedom of expression and assembly ahead of ASEAN Summit
Thursday, 15 November 2012

We, the undersigned civil society organizations, strongly urge the Cambodian authorities to immediately end the ongoing intimidation, threats and harassment of organizers, venue owners and participants involved in civil society events in Cambodia’s capital, Phnom Penh, ahead of the 21st Association of Southeast Asian Nations (ASEAN) Summit and the 7th East Asia Summit. We strongly urge the Cambodian authorities to respect the fundamental rights to freedom of expression and assembly in accordance with their constitutional and international obligations, in particularly in view of rising concern that it will heighten its crackdown on these fundamental freedoms ahead of the two summits.

Since 12 November 2012, civil society groups from Cambodia and throughout the ASEAN region have converged in Phnom Penh for a series of workshops and other activities, held under the banner of two main civil society events: the ASEAN Grassroots People’s Assembly (AGPA) and the ASEAN Civil Society Conference/ASEAN People’s Forum (ACSC/APF)“Transforming ASEAN into a People-centered Community” -, both timed to coincide with the upcoming ASEAN Summit from 18 to 20 November 2012.

On 13 November 2012, the opening ceremony of AGPA, which was held at a restaurant and attended by over 1,500 people, was disrupted when electricity supply to the venue was cut off. The restaurant owner had apparently been pressured by the local authorities to cancel the event. Venues for some AGPA workshops scheduled to begin on 14 November 2012 were also canceled at the last minute, despite agreements, rental deposits and other necessary requirements being in place…

Furthermore, notification by the organizers to hold a rally on 16 November 2012 to submit demands to the Cambodian government as the Chair of ASEAN was refused by the Phnom Penh Municipality and Ministry of Interior. The government has also warned that the authorities would arrest anybody who participates in public protests during the ASEAN Summit.

The other civil society-organized event, the ACSC/APF, scheduled to be held on 14-16 November, also faced similar obstructions by the authorities. The organizers of this event have had their venues canceled on two successive occasions following pressure from local authorities…

As a state party to the International Covenant on Civil and Political Rights (ICCPR), the Cambodian government is legally obliged to respect the right to freedoms of expression and assembly, which are also enshrined in the Cambodian’s Constitution.

We strongly urge the Cambodian government to immediately halt all forms of action that restrict and disrupt any of the events organized by civil society, including peaceful public assemblies, in the run up to the ASEAN Summit, consistent with Cambodia’s international legal obligations. Continued efforts to restrict and disrupt any of these events in the coming days will not only seriously worsen the already dismal human rights record of the Cambodian government, but also make a mockery of Cambodia’s commitment, as an ASEAN member state, to “promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building”, as enshrined in the ASEAN Charter.

This statement was endorsed by 72 organizations.

Already some months earlier, in June 2012, The Jakarta Post had commented on obvious problems during the preparatory process towards a human rights declaration, expected to be “one of the most important documents drafted since the adoption of the ASEAN Charter in 2007”:

Maintaining transparency key to ASEAN human rights declaration
June 28 2012

A document to ensure the human rights of over 600 million people across Southeast Asia is scheduled to be adopted in November, and Phnom Penh will host next month’s deliberations of the draft by ASEAN’s foreign ministers. The Jakarta Post compiled the following report ahead of the talks in Cambodia.

The declaration will be one of the most important documents drafted since the adoption of the ASEAN Charter in 2007. However, the drafting process has been criticized for its lack of public participation, particularly by civil society organizations, who have been eager to participate from the beginning.

The United Nations High Commissioner for Human Rights, Navi Pillay, called for a meaningful consultation on the draft with the widest spectrum of people in the region before presenting it to the ASEAN ministers’ gathering.

“The process through which this crucial declaration is adopted is almost as important as the content of the declaration itself,” Pillay said. She emphasized that engaging early in a transparent process of inclusive and meaningful consultation would help the drafting process acquire the status and popular support it deserved…

Worries over a weak declaration… came from experience in the 1990s when Malaysian, Singaporean and Indonesian leaders — Prime Minister Mahathir Mohamad, Prime Minister Lee Kuan Yew, and President Soeharto, respectively — promoted “Asian values”, meaning that rights should be based on national, social and cultural contexts of Asian nations rather than on the indivisibility and universality of human rights.

After these experiences, it was no wonder that even such far away media outlets like Al Jazeera, with its headquarters in the Arab country of Qatar, reported on 17 November 2012 Calls mount to scrap ASEAN human rights plan. Thanks to the efforts of Indonesia’s Foreign Minister Marty Natalegawa, this was avoided:

“If we were now to doubt and decide to delay, there’s no guarantee that it will ever come back,” he said on Saturday [17 November 2012]. “We have to seize the moment.” In a grouping that includes the Communist governments of Vietnam and Laos, as well as the monarchy of Brunei and the more vibrant democracies of Indonesia and the Philippines, it has taken years of sometimes tense negotiation for ASEAN to get this far.

After the ASEAN foreign ministers’ meeting in Phnom Penh in July 2012 had ended – for the first time in ASEAN’s 45-year history – without a joint communique, it had also been Indonesia’s Foreign Minister Marty Natalegawa who, some days after this event, traveled to the capitals of ASEAN countries to find common ground on which to continue to strive, according to the ASEAN motto, for “ASEAN: One Community, One Destiny.”

On 16 November 2012 – two days before the ASEAN Summit was to conclude – UN experts dramatically raised fundamental concerns over the intended ASEAN human rights declaration:

In an open letter to ASEAN member states, the experts said that adoption of a “credible” ASEAN Human Rights Declaration would represent a “significant step” by the 10-nation bloc to develop a “regional human rights system.”

The letter expresses reservations with the current draft, noting that it is “imperative” ASEAN’s landmark human rights instrument “maintains international standards” if it is to complement the work of the United Nations human rights system.
The experts’ key concerns include provisions in the draft addressing the right to life, a so-called “balance” between rights and individual duties, and conditions restricting people’s rights, according to a news release of the UN Office of the High Commissioner for Human Rights (OHCHR).

“The group of international experts stressed [ASEAN’s] need to reaffirm in their Declaration the duty of States to promote and protect all human rights and fundamental freedoms regardless of their particular political, economic and cultural systems,” OHCHR said…

For their part, the UN experts drafted their letter as members of the so-called Coordination Committee they created in 2005, under the Geneva-based UN Human Rights Council’s so-called Special Procedures mechanism, which mandates them to independently investigate country specific or thematic human rights issues…

“We call on all ASEAN member States to consult further with the people of the region, including civil society organizations, and to take on board their concerns and aspirations.”

The call reflects an appeal last week by the UN High Commissioner for Human Rights, Navi Pillay, who asked ASEAN leaders to review their work on the draft, and indicated she believed it reflected insufficient input from civil society and other stakeholders…

“The right to life, for example, is a fundamental right upon which all other rights depend, and any credible human rights instrument should unconditionally protect it without making it contingent on the provisions of domestic law.”
“In relation to the right to life,” the Committee Chair added, “provisions such as ‘in accordance with national law’ could be used to shield States against scrutiny by international human rights mechanisms concerning the excessive use of force by law enforcement officers, state failure to protect people against non-state actors and the continuation of the use of the death penalty.”

On provisions in the draft declaration that seek to “balance” rights with individual duties, the experts pointed out that wording does not reflect international human rights law, said OHCHR.

“Advocating a balance between human rights and duties creates much greater scope for Governments to place arbitrary, disproportionate and unnecessary restrictions on human rights,” the letter says.

In commenting on the draft’s “legitimate restrictions” provisions on the grounds of “morality,” “public order” and “national security,” Mr. Forst [the Committee Chair] said the experts were “acutely aware of the risk of these terms being used as a pretext by Governments to place arbitrary, disproportionate and unnecessary restrictions on human rights.”
“We strongly encourage the inclusion of language which makes explicit that the restrictions must be provided by law and conform to the strict tests of necessity and proportionality, and that these restrictions may not put in jeopardy the right itself or apply to rights that are non-derogable under international law,” he said, according to OHCHR…

“The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society,” the declarations states.

In view of much criticism and the fear that the ASEAN Summit might end with controversy, similar to the ASEAN Foreign Ministers’ Meeting in July, it was again the Indonesian Foreign Minister Marty Natalegawa’s initiative that was instrumental to rescue the situation: further discussions resulted in the inclusion of the Universal Declaration of Human Right into the final text on 17 November, which was signed by the government leaders of the ASEAN member countries on 18 November 2012.

Against a lot of resistance, appeals and protests, and calls to remember that regional standards cannot be lower than what the member countries of ASEAN had already pledged to observe in their constitutions and laws. Appeals, and clear arguments, and the position to consider them, did finally achieve, at the end, important results.

Now ASEAN has a Human Rights Declaration. Now it’s implementation starts.

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