The ASEAN human rights declaration 2012

Human Rights Law Review

Volumn 13, Issue 3, 2013, Pages 557-579

  Renshaw, Catherine Shanahan ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

Asean human rights declaration; ASEAN Intergovernmental Commission on Human Rights; Regional human rights systems; Southeast Asia

Indexed keywords

EID: 84883033949     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngt016     Document Type: Article

References (107)

1. Available at: aichr.org/documents [last accessed 20 May 2013].
2. ASEAN was formed in1967. Its Members are: Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Vietnam.
3. Article 1(1) Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights, July 2009 ('TOR AICHR'), available at: www.unhcr.org/relworld/docid/4a6d87f22.html [last accessed 14 March 2013].
4. Provides that the ASEAN Intergovernmental Commission on Human Rights is required '[t]o promote and protect human rights and fundamental freedoms of the peoples of ASEAN'. AICHR is also required '[t]o uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties' (Article 1(6) TOR AICHR). There was initially some doubt about whether AICHR's mandate extended to promoting and protecting all rights listed in the Universal Declaration of Human Rights 1948, UN Res 217 A (III); A/810 at 71, (UDHR) or only to promoting and protecting those rights contained in treaties and conventions that all ASEAN Member States had ratified.
5. ASEAN Charter of the Association of Southeast Asian Nations, 20 November 2007, available at: www.unhcr.org/refworld/docid/4948c4842.html [last accessed 23 February 2013].
6. See Ginbar, 'Human Rights in ASEAN: Setting Sail or Treading Water' (2010) 10 Human Rights Law Review 514
7. International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3; and International Covenant on Civil and Political Rights 1966, 999 UNTS 171
8. Article4(2)TORAHRD
9. Article5(2)TORAHRD
10. Article5(6)TORAHRD
11. No official draft was ever released, despite the requests of CSOs and the UN High Commissioner for Human Rights. The drafts, copies of which are on file with the author, are dated 9 January 2012 and 23 June 2012.
12. The consultations occurred in Kuala Lumpur on 22 June 2012 and in Manila on 12 September 2012. The participants were the representatives of AICHR and representatives of national and regional CSOs, who were selected byAICHR.
13. Office of the High Commissioner for Human Rights, Press Release, 'UN rights chief welcomes focus on human rights and democracy, calls for review of ASEAN draft human rights declaration', 8 November 2012, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12753&LangID=E [last accessed 13 February 2012].
14. Villanueva, 'How theWest was won: ASEAN Magna Carta', Inquirer, 21 December 2012, available at: opinion.inquirer.net/43189/how-west-was-won-asean-magna-carta [last accessed 23 February 2013].
15. US Department of State Press Release,'ASEAN Declaration on Human Rights', November 2012, available at: www.state.gov/r/pa/prs/ps/2012/11/200915.htm [last accessed 21 December 2012].
16. 'Human Rights Groups Reject Flawed ASEAN Declaration', 19 November 2012, available at: phuketwan.com/tourism/rights-groups-reject-flawed-asean-declaration-17082 [last accessed 20 November 2012] (this was a media release put out by fifty-three individual human rights groups).
17. UN General Assembly, 'Vienna Declaration and Programme of Action', 12 July 1993, A/CONF.157/23.
18. Final Declaration of the Regional Meeting for Asia of theWorld Conference on Human Rights (2003) 3 AsianYearbook of International Law 496
19. Kuala Lumpur Declaration on Human Rights, October 1993, approved by the Second Plenary Session of the 14th General Assembly of the AIPO. In 1993, Brunei held observer status. Vietnam joined ASEAN in 1995; Laos and Myanmar became Members in 1997; and Cambodia joined in 1999.
20. International Federation for Human Rights, 'Civil society organisations meet ASEAN Intergovernmental Commission on Human Rights on the ASEAN Human Rights Declaration, call for universal standards to be upheld', 25 June 2012, available at: www.fidh.org/Civil-society-organisations-meet [last accessed 23 February 2013].
21. There are, however, divergences between the texts. For example, the AHRD does not contain an equivalent provision to Article 24 UDHR, which provides for the right to 'rest and leisure, including reasonable limitation of working hours and periodic holidays with pay'.
22. Although Article 3 AHRD contains an additional sentence to the provision contained in the UDHR. Article 3 provides: 'Every person is equal before the law. Every person is entitled without discrimination to equal protection of the law'. Article 6 UDHR provides: 'Everyone has the right to recognition everywhere as a person before the law'.
23. Article 5 AHRD provides: 'Every person has the right to an effective and enforceable remedy, to be determined by a court or other competent authorities, for acts violating the rights granted to that person by the constitution or by law'
24. Article 14 AHRD provides: 'No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment'. Article 5 UDHR provides 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. There is no significance to the deletion of the '-ed' in 'subjected' in the AHRD formulation of this right.
25. For example, the provisions on freedom of movement in the AHRD and the UDHR are identical, save that the Article 15 AHRD is gender inclusive, adding 'or her' to the 'his' set out in Article 13 UDHR
26. Article 13 AHRD. Article 4 UDHR merely refers to slavery and servitude and the prohibition of the slave trade.
27. Article 16 AHRD
28. Article 18 AHRD
29. Article 22 AHRD
30. Article 18 UDHR. The UDHR provisions would have troubled some followers of Islam in countries such as Malaysia, Brunei and in parts of Indonesia. Islamic traditions do not permit Muslims to change religion.
31. See An-Na'im, 'Human Rights in the Arab World: A Regional Perspective' (2001) 23 Human Rights Quarterly 701
32. Article 20 UDHR
33. Article 24 AHRD
34. Article 19 AHRD and Article 16 UDHR
35. Article 23 UDHR provides for the right to equal pay for equal work, without discrimination. It also provides that everyone who works has the right to remuneration which will give himself and his family an existence worthy of human dignity, and that it will be supplemented, if necessary, by other means of social protection. Article 27 AHRD merely states that every person has the right to work, to the free choice of employment, to enjoy just, decent and favourable conditions of work and to have access to assistance schemes for the unemployed. Both the AHRD and the UDHR provide that everyone has the right to form trade unions and join the trade union of his or her choice for the protection of his or her interests; but the AHRD adds the phrase 'in accordance with national laws and regulations', see Article 27(2) AHRD and Article 23(4) UDHR.
36. Article 27(3) AHRD
37. Article 29(2) AHRD
38. Article 29(1) AHRD
39. Articles 35-37 AHRD
40. Article 2(1)(b) TOR AHRD
41. Clause vii, Working draft of the ASEAN Human Rights Declaration, 9 January 2012
42. Preamble AHRD
43. In the AHRD, 'humanity' replaces the word 'brotherhood' used in the UDHR
44. See Glendon,'The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea' (2003) 16 Harvard Human Rights Journal 27
45. Sinha, 'The Axiology of the International Bill of Human Rights' (1989) 1 Pace Year Book of International Law 21 at 53
46. It is debatable how significant a change this is. The American Declaration on the Rights and Duties of Man begins its statement about 'the freedom and equality of all' with the phrase 'all men'. In the drafting of the American Convention, the words 'all men' were changed to 'All persons'. Clearly, 'All persons' is the more inclusive in gender terms. But there may be a more significant difference between 'all men' and 'all persons'. 'All men' denotes 'all mankind', or 'all human beings': it is a general reference to humanity. The concept of 'person' is a legal conceptça'person' is someone who is recognised under law and who is accorded a particular bundle of rights as a legal person. It could be argued that the change from 'everyone' to 'all persons' suggests a desire on the part of the drafters to impart to the subjects of the AHRD a legal status as rights-holding subjects. On the other hand, Article 1 UDHR begins with the words 'All human beings...'. When the UDHR was finally transformed into the two Conventions, the ICCPR and ICESCR, the broader references to 'human beings' and to 'everyone' was preserved.
47. For a discussion on the significance of the use of 'person' vis ávis 'human beings' or 'everyone', see Nussbaum, 'Human Functioning and Social Justice: In Defense of Aristotelian Essentialism' (1992) 20 Political Theory 202
48. See Katsumata, 'ASEAN and Human Rights: Resisting Western Pressure or Emulating the West' (2009) 22 The Pacific Review 619
49. The International Gay and Lesbian Human Rights Commission, 'LGBT Report From The Peoples' Forum In Phnom Penh, Cambodia', 30 April 2012, available at: iglhrc.wordpress.com/2012/04/30/lgbt-report-from-the-peoples-forum-in-phnom-pehn-cambodia/[last accessed 21 May 2012].
50. Mohd Amin, 'LGBTIQ Rights Should be Excluded', 10 September 2012, available at: www.malaysiakini.com/letters/208463 [last accessed 2 October 2012].
51. Au, 'Singapore Choosing to be Anti-human Rights', 14 September 2012, available at: yawningbread.word press.com/2012/09/14/at-asean-singapore-choosing-to-be-anti-human-rights/#more-8006 [last accessed 18 September 2012].
52. Article 12 January 2012 Draft ASEAN Human Rights Declaration
53. Coalition of National and Regional CSOs, 'Open letter to ASEAN Foreign Ministers at Informal ASEAN Foreign Ministers Meeting (IAMM) on the ASEAN Human Rights Declaration', 26 September 2012, available at: www.mekongmigration.org/?cat=21 [accessed 14 March 2013].
54. UN High Commissioner for Human Rights, 'Statement by the High Commissioner for Human Rights at the Bali Democracy Forum', 7 November 2012, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12752&LangID=E [last accessed 10 November 2012]. The High Commissioner drew attention to the fact that even at that late stage, a draft of the Declaration had still not been released to the public.
55. Glendon points out that in the lead-up to the drafting of the UDHR, the importance of including duties was emphasised by participants from China, Latin America, the Soviet Union and France, see Glendon, 'Knowing the Universal Declaration of Human Rights' (1997) 73 Notre Dame Law Review1153
56. Articles XXIX-XXXVIII, American Declaration emphasise specific duties: to society; towards children and parents; to vote; to acquire an elementary education; to obey the law; to cooperate with the state and the community with respect to social security and welfare; to pay taxes; and to work
57. Article 32(1) American Convention on Human Rights
58. The Preamble to the ICCPR recognises 'that the individual... is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant'. Such private duties and responsibilities cannot be fulfilled if an individual violates the rights of other individuals or groups, and the preamble to the Covenant clearly states that, with respect to human rights, individuals have 'duties to other individuals and to the community'.
59. In particular, Article 27(1) provides that 'every individual shall have duties towards', among others, 'his family and society'. Article 28 also proclaims a general duty to respect othersça duty that, if adequately implemented, must encompass the right of each person to human dignity and fundamental human rights and freedoms.
60. In his contribution to the UNESCO Committee on the Drafting of the UDHR, Mahatma Gandhi suggested that instead of a list of rights, it might be better for the Committee to 'define the duties of every Man andWoman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for.'
61. See Gandhi in United Nations Educational, Social and Cultural Organization (ed.), Human Rights Comments and Interpretations: A Symposium (London: UNESCO, 1949).
62. In the early 1990s, Paust advised a shift from theoretical inquiries about whether duties existed in international human rights law, to questions about what sorts of duty correspond to what sorts of rights in what contexts, how competing rights should be accommodated, and how these ultimately affect public responsibility
63. Paust, 'The Other Side of Right: Private Duties under Human Rights Law' (1992) 5 Harvard Human Rights Journal 51 at 62
64. Freeman, 'Human rights, democracy and "Asian values"' (1996) 9 The Pacific Review 352
65. Tan, 'Creating 'Good Citizens' and Maintaining Religious Harmony in Singapore' (2008) 30 British Journal of Religious Education 133
66. Tan and Leong Wong, 'Moral Education for Young People in Singapore: Philosophy, Policy and Prospects' (2010) 13 Journal of Youth Studies 89
67. This is the very notion that the idea of rights was supposed to resist. Consider, for example, Dworkin's idea of rights as 'trump cards', which protect the basics of our individual freedom and liberty against other imperatives: Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
68. Waldron, 'Rights in Conflict' (1989) 99 Ethics 503
69. Argues that rights are supposed to impose limits on the sacrifices that can be demanded from individuals as a contribution to the general good: 'designed to pick out those interests of ours that are not to be traded offagainst the interests of others in this way'
70. Howard and Donnelly, 'Human Dignity, Human Rights, and Political Regimes' (1986) 80 The American Political Science Review 801
71. Civil societyorganisations viewed as particularly problematicMalaysia's proposal inthe January 2012 draftAHRD to include the following provision:'The parameters of the enjoyment and exercise of human rights and fundamental freedoms is dependent on the fulfilment of duties and responsibilities towards other individuals, societies, future generations and the State.' Vietnam put forward a proposal that stated: 'The rights of persons are inseparable from their duties. The State protects these rights and the persons fulfil their duties towards the State and society.'
72. Phasuk, Human Rights Watch, Thailand quoted in Khemara, VOA Khmer, 'Mixed Reviews of ASEAN Human Rights Declaration', 19 December 2012, available at: www.voacambodia.com/content/mixed-reviews-of-asean-rights-declaration/1567319.html [last accessed 22 December 2012].
73. Emphasis added
74. The phrase 'national and regional particularities'was present in the January 2012 draft of the AHRD. Civil society organisations strongly objected to the inclusion of this phrase. They saw the word 'particularities'as a direct attempt to revive the 'Asian values'debate and as an opening to future concessions to relativism. In the end, the phrase 'national and regional particularities' was removed from the final text of the AHRD.
75. Article 29(2) UDHR. One other point to note about the limitations provision in the AHRD, however, as compared to the one in the UDHR, is that it is located at the beginning of the AHRD, whereas in the UDHR it is placed at the end of the document. It is doubtful whether this is of legal significance. It does, perhaps, contribute to the sense of importance that the limitations clause conveys within the overall text.
76. Articles 24 and 31Arab Charter on Human Rights 2004. See Rishmawi,'The Arab Charter on Human Rights and the League of Arab States: An Update' (2010) 10 Human Rights Law Review 169.
77. For example, Article 41 Constitution of Cambodia 1993 provides in relation to the right of Freedom of Expression, that: '(1) Khmer citizens have freedom of expression, press, publication, and assembly. No one may exercise this right to infringe upon the rights of others, to affect the good traditions of the society, or to violate public law and order and national security'; Article 28J Constitution of the Republic of Indonesia 2002 permits the limitation of some rights on the basis of: 'morality, religious values, security and public order in a democratic society'; Article 44 of the Amended Constitution of the Lao's Peoples Democratic Republic provides that Lao citizens have the right and freedom of speech, press and assembly and have the right to set up associations and to stage demonstrations, which are not contrary to the laws; and Article 10(2) of the Constitution of Malaysia 1957 permits restrictions on the rights of expression, assembly and association, on the grounds of morality (among other things).
78. Asia Pacific Forum onWomen's Law and Development, 'Adding Value: Removing Morality from the ASEAN Human Rights Declaration' (2011), available at: http://www.apwld.org/wp-content/uploads/APWLD-paper-on-Morality_final.pdf [last accessed 19 January 2013].
79. See also the Southeast AsiaWomen's Caucus on ASEAN, 'Submission on the ASEAN Human Rights Declaration', 21 October 2011, available at: www.apwld.org/latestnews/womens-caucus-submission-on-asean-human-rights-declaration/[last accessed 21 February 2013].
80. See Hutchinson, 'The Margin of Appreciation Doctrine in the European Court of Human Rights' (1999) 48 International and Compirative Law Quarterly 638
81. Handyside v United Kingdom A 24 (1976); 1 EHRR 737
82. The Southeast AsianWomen's Caucus on ASEAN, 'ASEAN Human Rights Declaration Limited by 'morality' Say Women's Organisations', 19 November 2012, available at: www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/623-1.pdf [last accessed 14 March 2013].
83. Emphasis added
84. Article 3 Bangkok Declaration states: 'Stress the urgent need to democratize the United Nations system, eliminate selectivity and improve procedures and mechanisms in order to strengthen international cooperation, based on principles of equality and mutual respect, and ensure a positive, balanced and non-confrontational approach in addressing and realizing all aspects of human rights.'Article 7 Bangkok Declaration states: 'Stress the universality, objectivity and non-selectivity of all human rights and the need to avoid the application of double standards in the implementation of human rights and its politicization, and that no violation of human rights can be justified'.
85. Article 28(f) AHRD
86. Articles 35-37 AHRD
87. Article 38 AHRD
88. For example, the Preamble includes the following, along with several other references to peace: 'Desiring to establish a firm foundation for common action to promote regional cooperation in South-East Asia in the spirit of equality and partnership and thereby contribute towards peace, progress and prosperity in the region' (emphasis added)
89. It is notable that the African Charter on Human Rights and Peoples' Rights mentions the right to peace only as a right of peoples. It does, however, specifically name the right to national (domestic) peace as well as international peace.
90. Article 3 UN Declaration on the Rights of Indigenous Peoples
91. Silverstein, 'Politics in the Shan State: The Question of Secession from the Union of Burma' (1958) 18 The Journal of Asian Studies 43
92. Article 10 Constitution of the Union of the Republic of Myanmar 2008. Articles 6(a-c) Myanmar Constitution set out as basic principles of the Union: (i) non-disintegration of the Union; (ii) non-disintegration of National solidarity; and (iii) perpetuation of sovereignty.
93. The Shan peoples have an added degree of autonomy, in a 'self-administered zone': see Article 6 Myanmar Constitution
94. As in the case of Myanmar, the decades-old conflict between the government of the Philippines and Moro peoples has its origins in the nation's colonial history. In 1946, when the United States granted independence to the Philippines, it incorporated into the new Republic two previously independent Muslim sultanates.
95. InWest Papua/Irian Jaya, the population is ethnically Melanesian and predominantly animist or Christian, with many supporting integration with Papua New Guinea. In 1965, the Organisasi Papua Merdake ('OPM', Free Papua Movement) launched an armed insurgency and the Indonesian government responded with a counter-insurgency campaign. By 1999 the insurgency was effectively contained, but the pro-independence vote in East Timor in 1999 reignited the struggle of the OPM.
96. Aceh was never part of Indonesia. In 1949, when the United Nations brokered an agreement to transfer all the former colonial territory of the Dutch East Indies to the sovereign state of the Federal Republic of Indonesia, Aceh was included in the new Republic.
97. On 25 April 1950, the South Moluccas declared independence from Indonesia, a move violently ended by Indonesian troops, four months later
98. UN General Assembly, Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerningWest New Guinea (West Irian), 19 December 1969, A/RES/2504
99. [12] CSOs, 'AHRD is Hijacked by Narrow-minded National Interests', 13 September 2012, available at: www.burmapartnership.org/2012/09/ahrd-is-hijacked-by-narrow-minded-national-interests [last accessed 19 October 2012].
100. Clarke, 'From Ethnocide to Ethnodevelopment? Ethnic Minorities and Indigenous Peoples in Southeast Asia' (2001) 22 ThirdWorld Quarterly 413
101. Preamble, European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5, as amended by Protocols Nos 11 and 14, ETS 5
102. Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 UNTS 13; Convention on the Rights of the Child 1989, 1577 UNTS 3
103. Brunei has entered a reservation in regard to provisions of CEDAW that may be contrary to the Constitution and to the beliefs and principles of Islam. Malaysia has declared that accession to CEDAW is subject to the understanding that the provisions of the Convention are not contrary to and do not conflict with the Constitution and the beliefs and principles of Islamic law. Singapore has similarly entered a reservation that provides that all of its obligations are subject to Singaporean law.
104. Generally on reservations of ASEAN states, see Linton, 'ASEAN States, their Reservations to Human Rights Treaties and the Proposed ASEAN Commission onWomen and Children' (2008) 30 Human Rights Quarterly 436
105. [1966,] 999 UNTS 171
106. The Philippines acceded on 22 August 1989
107. Iman Santosa and Ririhena, 'ASEAN Leaders Adopt Lame-duck Rights Declaration', 19 November 2012, The Jakarta Post, available at: www.thejakartapost.com/news/2012/11/19/asean-leaders-adopt-lame-duck-rights-declaration.html [last accessed 21 February 2012].