asean human rights mechanisms (yuyun wahyuningrum, 2012)
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STRENGTHENING HUMAN RIGHTS SYSTEMS IN ASEAN: THE ROLE OF CIVIL SOCIETY
YUYUN WAHYUNINGRUM|Senior Advisor on ASEAN and Human Rights | Human Rights Working Group (HRWG) Indonesia
In Search of Human Rights Mechanism in ASEAN
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, Article 14: AHRB
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 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) 16 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
7
FACTS 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,
ConventionsACWC can speak on behalf of women, children, victims
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
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
The content of AHRD is a reflection of difficult negotiation between two extreme position 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
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
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 topublic
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 and 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?
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
Current CS Engagement with Human Rights MechanismsAICHR
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
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
ASEAN Civil Society Conferences/ASEAN Peoples Forums 2005-2013
Year Place The Name of the Event
2005 Shah Alam, Malaysia
1st ASEAN Civil Society Conference (ACSC)
2006 Cebu, the Philippines
2nd ASEAN Civil Society Conference (ACSC)
2007 Singapore 3rd ASEAN Civil Society Conference (ACSC)
2009 Bangkok, Thailand
4th ASEAN Civil Society Conference (ACSC)/ 1st ASEAN Peoples’ Forum (APF)
2009 Hua Hin, Thailand
5th ASEAN Civil Society Conference (ACSC)/2nd ASEAN Peoples’ Forum (APF)
2010 Hanoi, Vietnam 6th ASEAN Peoples’ Forum (APF)
2011 Jakarta, Indonesia
ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples’ Forum (APF) 2011
2012 Phnom Penh, Cambodia
ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples’ Forum (APF) 2012 – March & November
2013 Brunei ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples’ Forum (APF) 2013 – April
2014 Myanmar ?
What has been the collective knowledge we produced through 8 years’ ACSC/APF?
• Mainly: ILO, UNFCCC, CEDAW, UNCRC, UNDRIP, &MDGs
• Against unjust FTA, privatization,
• Reject neoliberal economic policies
• Democracy• Human Rights• Transparency• Accountability
• Particularly: Women & Youth, Indigenous People / Ethnic Minority, and CSOs CSO
Participation in Decision
Making Process (1,2,3,6,7)
Adoption of Basic
Universal Values (3,4,5,6,7)
Adoption of UN Bodies’
related Conventions (1,2,4,5,6,7)
Holistic - rights-based
approach on
Development (1,2,4,5,6,7)
ASEAN’s Alternative Regionalism (Source: HRWG Study, 2011)
CSO Platforms in engaging ASEAN
Name frequent
Engaging 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
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
Leaders’ Interface Meeting with CSYear ACSC/APF Process (Track
III/CS)ASEAN ISIS Process (Track II/Think Tank)
2005, Malaysia
1st ACSC/ ASEAN Civil Society Conference in Shah Alam15 Minute MeetingMixed Delegation of 10 and 10 ASEAN Heads of State
2006, Philippines
2nd ACSCNo Interface Meeting with Leaders
APA/ASEAN Peoples’ Assembly by ASEAN ISIS (process recognized by ASEAN Chair) in ManilaNo Interface Meeting with Leaders. Instead Reading of APA Chairman’s Report
2007, Singapore
3rd ACSCNo Interface Meeting with Leaders
ACSC 2007 by SIIA Simon Tay (process recognized by ASEAN Chair)No Interface Meeting with Leaders. Instead Reading of ACSC 2007 Chairman’s Report
Leaders’ Interface Meeting with CSYear ACSC/APF Process (Track
III/CS)
2009, February, Bangkok
4th ACSC (within the 1st ASEAN Peoples’ Forum)30 minute Interface between CS Delegation and ASEAN Heads of StateHua-Hin, Thailand was divided into two sections. The first 15 minutes was for the meeting with CS Delegates and the rest 15 minutes was for those who have been rejected by the Rep of Government (Myanmar and Cambodia)
2009 October, Cha-am
2nd ASEAN Peoples’ Forum/5th ASEAN Civil Society Conference15 minutes, Interface Meeting between CS Delegation (some government appointed) and ASEAN Heads of State (optional)
2010 Hanoi
6th APFNo Interface Meeting with Leaders. Instead CS Reps met with Chair of ASEAN, the Vice Prime Minister of Vietnam.Recognition of the process. ASEAN Chairman’s statement: 2 paragraphs appreciation of organizing of the APF and took note of invaluable inputs from civil society
Leaders’ Interface Meeting with CSYear ACSC/APF Process (Track
III/CS)
2011, Jakarta
•10 persons representing 10 countries•45 minutes (additional 15 mins from earlier agreement 30 mins) •4 speakers (extended from initially only one speaker allowed)•Time: 15:45 – •10+1 (HoS/G + Foreign Min), ASG + DSG Corp and Comm Affairs•Indonesia’s President greets all CS Delegates at the door•Indonesia’s President welcomes CS Delegates, makes speech and allows CS Delegate to speak•All delegates introduce themselves by mentioning the name and followed by “I am from ASEAN”•Indonesia’s President, Malaysia PM Najib, Razak, Thai PM Abishit Vejajiva, and PM Vietnam Nguyen Tan Dzung responded (see Annexes)•Indonesia’s President gives closing remarks and walks toward the CS Delegate and shakes their hand one by one. All leaders follow.
Leaders’ Interface Meeting with CSYear ACSC/APF Process (Track
III/CS)
2012, Phnom Penh
• Head of States met representatives from GONGOs of 8 countries (absent: Indonesia and the Philippines)•30 minutes•Topic: gender and development
2013, Brunei
CULTIVATING GAINS Civil Society’s role is visible in ASEAN community building
Civil Society engagement improve the accountability of ASEAN. A critical and watchful civil society is a factor of paramount importance for good governance
Growing discussion on governance and government, people-oriented versus people-centered organization
ACSC should remain as one of the key platforms which civil society uses to exchange ideas and advance their inputs to ASEAN leaders and relevant policy-makers
Civil-Society should maintain its process as civil society-led and show willingness and readiness to engage with ASEAN and its Member Government
He organizing of ACSC should be improved from time to time through trying and experiencing