Cooperation in Promoting Universality: Regional Human Rights Mechanisms & Civil Society in ASEAN

Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights at HUMAN RIGHTS WORKING GROUP (HRWG) Indonesia, E-mail: wahyuningrum@gmail.com

It is about building a

democratic dialogue in

ASEAN

Since the adoption of ASEAN Charter in 2008, much was said about engaging civil society, respecting human rights, promoting democracy and about good governance in ASEAN’s high-level statements and documents.

ASEAN Guideline for the Engagement with Civil Society

2006’S GUIDELINE

Member states are still in control of deciding who can in and who cannot

The participation is perceived as privilege

The participation is not understood as RIGHT. It is more like “stick” and “carrot”

The affiliation is used as a way to control

The affiliation to ASEAN is a political issue rather than a only administrative requirement

CSOs are not seen as partners in developing ASEAN Community

2012’S GUIDELINE Generally better than the

2006’s

As a general rule, only a CSO whose membership is confined to ASEAN nationals may be considered for accreditation with ASEAN;

Approval of application for accreditation of a CSO with ASEAN shall be based primarily upon the assessment of the positive contribution which such a CSO could make to the enhancement, strengthening and realisation of the aims and objectives of ASEAN

CSO Platforms in engaging ASEANName frequen

tEngaging the body

ACSC/APF annually ASEAN SUMMIT Head of States/Governments

ASEAN Disability Forum (ADF) annually

ASEAN Youth Forum annually

ASEAN Grass-root People Assembly

annually

ASEAN Community Dialogue annually ASEAN Committee Permanent Representatives (CPR)

CPR

Civil Society Forum to AMM on human rights

annually ASEAN Ministers Meeting (AMM)

Foreign Ministers

Informal Dialogue between CSO and ASG on human rights

annually ASEAN Secretary General (ASG)

Secretary General

Jakarta Human Rights Dialogue in ASEAN

annually ASEAN Human Rights Mechanisms

AICHR, ACWC

GO-NGO Forum on Social Welfare & Development

annually ASEAN Senior Official Meeting on SWD

SOM officials

History of Human Rights in ASEAN

History of civil society engagement with ASEAN. It is a journey of believing that engagement can make change.

History of interaction between national and international efforts and dialogue on human rights.

History of national political opening contribute to the political space at regional level.

Journey of believing that a human rights commission can be created in context of the region with no respect of values of democracy and human rights.

ASEAN Human Rights Systems

Conventions: Norms/

Instruments

Commission/Committee ASEAN Human Rights Court??

ACWC 2010

AICHR 2009 ACMW

2008

The 3Cs in Human Rights Architecture

1st C: “Commissions”

AICHR

Created based on Article 14, Charter

Established: 23 Oct 200910 Representatives14 Mandates

No individual complaintProvide advises to ASEAN

sectorial government upon request

Can obtain information on HR issues from Member States

Consult stakeholdersSubmit 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

AICHR & ACWCMODALITIES, PRINCIPLES, NATURE

non-interferenc

e

evolutionary approach

consultation

consensus

consultative

inter-governmen

tal body

Current CS Engagement with Human Rights Mechanisms

AICHR

AICHR only want to meet with those who are affiliated with the ASEAN Charter

The newly adopted AICHR Guideline of Operation silent on CS engagement

Two consultations o AHRD: June 22, and Sept 12

Consultation only happen in Indonesia, Thailand and the Philippines

CS continue to submit inputs, reports, papers to AICHR

CS is a sensitive issue in AICHR, but during their visit to US, they met US-based CSOs

AICHR is developing Guideline for the engagement with civil society group (draft 0)

ACWC

Started with Informal Dinner (2011), Informal Session (2011), Joint-Workshop (2012), Formal Session (2012)

Informal Session: 9 out of 20 Reps attended

Informal Session: 16 out 20 Reps attended

Joint-Workshop: 18 out of 20 Reps attended

Formal Session: 20 Reps attended

Good Result, Good process, substantive discussion, cordial ambiance

Inputs from CS have been included in the reference documents of the ACWC

The initial suggestion to erase civil society” & international standards” in TOR ACWC has been put down

ACWC uses inputs from CS in formulating their positions

ACMW: An Overview

Mandated by the ASEAN Socio-Cultural Blueprint

2007 Jan - ASEAN Declaration on the protection and promotion of the rights of migrant workers (ASEAN Summit/AMM)

2007 July - ASEAN Statement of the establishment of the ASEAN Committee on the implementation of the ASEAN Declaration

2007 October - formation of the ACMW (ALMM/SLOM)

2008-2011 stalled discussion over the Instrument for the protection of migrant workers

The 4th ACMW DT Meeting in Manila, September 2011agreed to continue discussing gradually through Phases and to find issues that have commonalities and comfortable to all: Phase 1: regular migrant workers (by end 2012) Phase 2: irregular migrant workers (by end 2013) Phase 3: legal status of the Instrument (by end of 2014)

Norms/Instruments

Children

• Declaration on Commitments on for Children in ASEAN (August 2001)

• Ha Noi Declaration on The Enhancement of Welfare and Development of ASEAN Women and Children ; 28 Oct 2010

Women

• Declaration on the Elimination of Violence Against Women in the ASEAN Region; 30 June 2004

• Ha Noi Declaration on The Enhancement of Welfare and Development of ASEAN Women and Children ; 28 October 2010

Trafficking

• 1997 ASEAN Transnational Crime

• ASEAN Declaration Against Trafficking in Persons Particularly Women and Children; 29 November 2004

• ASEAN Practitioner Guidelines on Effective Criminal Justice Responses to Trafficking in Persons (2007)

• Leaders Joint Statements on TIPs in Southeast Asia, May 2011.

Migrant workers

• ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers 13 January 2007, Cebu, Philippines

2nd C: “Convention”: Standard-Setting Scenario

• Article 4.2 of the TOR AICHR: “to develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights”

• Is adopted on 18 November 2012, during the 21st ASEAN Summit

• Is the effort to universalize human rights at the regional level, or regionalize the universal political commitment of human rights

ASEAN Charter,

Article 14, 2008

Terms of Reference on AICHR,

2009

ASEAN Declaration on Human

Rights, 2012

Conventions on Human Rights in ASEAN?

ASEAN HUMAN RIGHTS DECLARATION

Is A TWO-IN-ONE DOCUMENT: 1) PHNOM PENH STATEMENT, and 2) AHRD

PHNOM PENH STATEMENT with signatures of ASEAN Leaders, Article 3:

“REAFFIRM further our commitment to ensure that the implementation of the AHRD be in accordance with Our commitment with the Charter of the United Nations, the Universal Declaration of Human Rights, The Vienna Declaration and its Programme of Action, and other international human rihts instrument to which ASEAN Members Sttes are parties,as well as relevant ASEAN declarations and instruments pertaining to human rights”

ASEAN Human Rights Declaration

IS CONSISTED OF: Preamble General Principles Civil and Political Rights Economic, Social and Cultural Rights Right to Peace Right to Development Cooperation on the Promotion and Protection of Human Rights

GENERALLY, THE CONTENT IS GOOD. Some Article has good formulation of rights, compare with the UDHR

ASEAN HUMAN RIGHTS DECLARATION

WEAK PART OF THE DECLARATION:

1.The balance between Rights & Responsibilities. The enjoyment of human rights and fundamental freedoms must be balanced with the duties of individuals, the community and the society where one lives, Article 6

2.National and Regional particularities. The realisation of human rights must be considered in the regional and national context …, Article 7

3.Limitation of Rights. The exercise of human rights and fundamental freedoms shall be subject only to such limitations … and to meet the just requirements of national security, public order, public health, public safety, public morality, …Article 8

4.Erasure of Freedom of Association, Article 24

INCLUSION OF CSO’S INPUTS IN AHRD

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

Total erasure on the section on duties and responsibilities

CSO’s positions toward AHRD

Ignore

Reject

Disappointed but

continue to engage

AFTERTHOUGHTS

AHRD is a political document with the context of democratic deficits in ASEAN

The challenge is now how to make AHRD promote reform in domestic politics & how to use AHRD to make ASEAN function as a ruled-based organization

We should not be idealistically naive, but rather more tactical and strategic when dealing with ASEAN. We know how the game is played or unfairly played, so let us play it well

Let us look at the declaration as a means to an end, a living evolving document.

Many international law and standards including in the field of human rights continue to expand with time as cultural norms evolved. New demands would be made for legal instrument to keep up with the development

Promoting Universality of Human Rights in AHRD?

The content of AHRD is a reflection of difficult negotiation between two extreme positions on human rights and democracy in ASEAN

AHRD starts with REAFFIRMATION of state’s international obligation to human rights, and ends with the recognition of non-derogable rights. But the general principles of AHRD are not inline with international human rights standards.

The process had been closed for civil society. Two consultations with CSOs were conducted and two consultations with ASEAN sectoral bodies without sharing the working draft

Public only know the final draft after the adoption, Nov 18, 2012

What next?

ACCOUNTABILITY EXERCISE: We are of the opinion that AICHR should not rush

to draft any convention on human rights. Not now, maybe in next 10-115 years

Annual Report on Human Rights in ASEAN Put all mandates of AICHR, especially Article 4.10

of AICHR to obtain information from Member States into reality by using AHRD

Monitor ASEAN Ministerial Meeting proceeding to what extent AHRD has been used to bring human rights issues on the table (using its Joint Communique)

Review TOR AICHR in 2014

TOR AICHR REVIEW in 2014

It is the time when we can work together to make AICHR as an INDEPENDENT HUMAN RIGHTS MECHANISM by changing the selection process of AICHR

To make AICHR accessible by pushing the body to finalize a democratic guideline on engaging civil society, including receiving complaints on human rights and sharing information to public

To make AICHR a responsive body by changing its mandate to be be able to respond the issues by having a fact-finding mission, investigation

Civil Society Involvement during & after the drafting of TOR AICHR

TOR AICH

R

1st Consultation in Manila, Sept

2008

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

Review 2014?

TOR AICHR & Its TimelinesJuly 2008 HLP was

established

Dec 2008, First

Submission

July 2009 Final

Submission

Oct 2009 Launched

TOR AICHR

2014 Review

TOR

Protection of HRs

Promotion of HRs

technical assistance

advisory services

standard setting

Dissemination and education

Consult with national, regional, and international inst, and entities concerned with hrs protection and promotion

Obtain Information

What to Review? Based-on Cha-Am Declaration

Objective of the Review: to strengthen the mandate and functions of the AICHR in order to further develop mechanisms on both the protection and promotion of human rights. Indicator 1: Has AICHR provide an ASEAN’s commitment to pursue

forward-looking strategies to strengthen regional cooperation on human rights?

Indicator 2: Has AICHR serve as a vehicle for progressive social development and justice, the full realization of human dignity and the attainment of a higher quality of life for ASEAN peoples?

Indicator 3: Has AICHR receive full support and provision of adequate resources by ASEAN Member States?

Indicator 4: Has AICHR acknowledge contribution of stakeholders in the promotion and protection of human rights in ASEAN, and encourage their continuing engagement and dialogue with the AICHR?

Indicator 5: Has ASEAN cooperation on human rights support the evolution of AICHR as an overarching institution?

Thank you!wahyuningrum@gmail.com