Wednesday, November 21, 2012

Denouncement of ASEAN adoption Human Rights Declaration


There a lot of reaction against adoption of ASEAN head of state on ASEAN Human Right Declaration (it’s called AHRD), which consider that it doesn't meet with international standard, especially, AHRD contradicted Universal Declaration of Human Rights, ICCPR, CEDAW and CRC.

Please have a look the reaction and statement in below: 



16 November 2012 – The largest body of independent experts in the United Nations human rights system today highlighted their concerns about a draft for Southeast Asia’s first ever regional document on human rights protections, which the Association of Southeast Asian Nations (ASEAN) is set to consider on Sunday for adoption.

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, adding the group highlighted that 171 states had adopted this principle by consensus in the 1993 Vienna Declaration, and that ASEAN states had made a “significant contribution” to that effort in the Austrian capital.

The regional declaration is one of the key mandates of the ASEAN Intergovernmental Commission on Human Rights, which the association created in 2009, saying it was intended to “promote and protect human rights and fundamental freedom” of the 600 million people within their borders. Leaders attending the ASEAN Summit in the Cambodian capital of Phnom Penh on Sunday are to consider it for adoption.

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.

The Coordination Committee effectively amplifies the experts’ individual messages by enabling them to speak as one, and also by giving them an opportunity to collectively coordinate and consult with OHCHR, and the broader UN human rights framework and civil society.
The Committee’s chair, Michel Forst, noting that the main function of regional human rights instruments was to “establish minimum standards” that countries’ domestic laws must meet, indicated that the ASEAN draft declaration might benefit from more input by stakeholders outside government, according to the OHCHR release.

“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,” he said.
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.

Mr. Forst said the expert group was on hand to provide further advice to ASEAN in the “historic task” of finalizing the declaration, as he also detailed the group’s concerns with the current draft, the OHCHR news release indicated.

“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,” Mr. Forst said.

“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 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 experts also called on ASEAN leaders to consider in their declaration the issues of statelessness, the right to seek and to enjoy asylum from persecution in other countries, and the international customary law principle of “non-refoulement,” which would guard against the return of people to countries where, for example, they might be subjected to torture.
“Again, such provisions should not be contingent on domestic laws,” said Mr. Forst.
Separately today, OHCHR reported instances of harassment of peaceful activist meetings in Cambodia ahead of the ASEAN summit, saying some discussing human rights issues had been closed down “under pressure from the authorities.”

“The High Commissioner is concerned about the actions of the Cambodian authorities,” OHCHR said in a statement.

It added that at least 60 people had been arbitrarily detained during an “operation to ‘sweep’ Phnom Penh clean of street people” prior to the arrival of heads of government. It also highlighted the arrest of “members of a community protesting their threatened eviction by writing messages on the roofs of their house,” but added that group was later released.

“The summit should be an opportunity for all parts of ASEAN to come together and peacefully share their views,” OHCHR said.

“The actions of the Cambodian Government are not concordant with Cambodia’s human rights obligations or with the values of ASEAN of peace and prosperity for all.”

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ASEAN Declaration on Human Rights

Press Statement
Victoria Nuland
Department Spokesperson, Office of the Spokesperson
Washington, DC

November 20, 2012



The Universal Declaration of Human Rights (UDHR) lays out universal principles of human rights that are the entitlement of all persons everywhere, establishing a minimum baseline for the protection of human rights. Regional declarations are a useful way to reinforce the human rights commitments and obligations of states as articulated in the UDHR and in the International Covenant on Civil and Political Rights (ICCPR). For this reason, in principle, we support ASEAN's efforts to develop a regional human rights declaration.

While part of the ASEAN Declaration adopted November 18 tracks the UDHR, we are deeply concerned that many of the ASEAN Declaration’s principles and articles could weaken and erode universal human rights and fundamental freedoms as contained in the UDHR. Concerning aspects include: the use of the concept of "cultural relativism" to suggest that rights in the UDHR do not apply everywhere; stipulating that domestic laws can trump universal human rights; incomplete descriptions of rights that are memorialized elsewhere; introducing novel limits to rights; and language that could be read to suggest that individual rights are subject to group veto.
The Declaration and the ASEAN statement of adoption call for the Declaration to be implemented consistent with the Universal Declaration on Human rights and international human rights agreements. Therefore, ASEAN has an opportunity to take steps to revise the Declaration through a transparent process that includes civil society and that brings the document in line with the standards embodied in the UDHR and ICCPR. The United States remains a committed partner with ASEAN on the protection of human rights.
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Disregarding the deep concerns expressed by senior United Nations officials, human rights experts and hundreds of civil society and grassroots organisations at the national, regional and international levels, ASEAN leaders nonetheless adopted yesterday an “ASEAN Human Rights Declaration” that undermines, rather than affirms, international human rights law and standards. The document is a declaration of government powers disguised as a declaration of human rights. It is deplorable that the governments of ASEAN have insisted on making a Declaration that implies that their people are less deserving of human rights than the people of Europe, Africa or the Americas. The people of ASEAN should never accept a lower level of protection of their human rights than the rest of the world.

 The ASEAN Human Rights Declaration should have reflected the universally held conviction that respecting human rights necessarily means imposing limitations on the powers of government. Instead, the Declaration that was adopted, through some of its deeply flawed “General Principles”, will serve to provide ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments. These include balancing the enjoyment of fundamental rights with government-imposed duties on individuals, subjecting the realisation of human rights to regional and national contexts, and broad and all-encompassing limitations on rights in the Declaration, including rights that should never be restricted. In many of its articles, the enjoyment of rights is made subject to national laws, instead of requiring that the laws be consistent with the rights.

The Declaration fails to include several key basic rights and fundamental freedoms, including the right to freedom of association and the right to be free from enforced disappearance.
The last-minute addition made to the leaders’ statement upon adopting the declaration, reaffirming ASEAN member governments’ commitment to the Universal Declaration of Human Rights and other human rights instruments in the implementation of the ASEAN Human Rights Declaration, does little to address the fundamental problem. As long as the Declaration’s General Principles and the loopholes they provide remain, a wrong signal will be sent to governments that international human rights obligations may be circumvented.

It is highly regrettable that governments in the ASEAN who are more democratic and open to human rights succumbed to the pressure of human rights-hostile governments into adopting a deeply flawed instrument.

We again raise our objections to the ASEAN’s “consultation and consensus” decision-making system, which has failed its people again. This reveals that the ASEAN human rights agenda is dictated by its Member States with little meaningful consultation with the vast array of civil society and grassroots organizations that are working each day for the human rights of the people of the ASEAN region.

This Declaration is not worthy of its name. We therefore reject it. We will not use it in our work as groups engaged in the protection of human rights in the region. We will not invoke it in addressing ASEAN or ASEAN member states, except to condemn it as an anti-human rights instrument. We will continue to rely on international human rights law and standards, which, unlike the ASEAN Human Rights Declaration, provide all individuals, groups and peoples in ASEAN with the freedoms and protections to which they are entitled. We remind ASEAN member states that their obligations under international law supersede any conflicting provisions in this Declaration. This Declaration should never be the basis to excuse the failure of a state to meet its international human rights obligations.
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We, the ASEAN LGBTIQ Caucus[1] are outraged and disappointed by the decision of the ASEAN Head of States to adopt the AHRD that excluded sexual orientation and gender identity (SOGI). Despite countless attempts and demands by the members of civil society, including LGBTIQ groups, to push for its inclusion, ASEAN have remained reticent to the attempts. This AHRD not only shows a lack of respect to LGBTIQ people but also makes a mockery of the international human rights values and principles that all nations and citizens abide by and are held accountable to.

“Evidently, the numerous failed attempts to engage with AICHR and the recent adoption ofASEAN Declaration with no mention of SOGI, sends a clear message that the human rights of LGBTIQ people are irrelevant to them,” explained Vien Tanjung, founder of Her Lounge.
All 10-member countries of ASEAN have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), which have specific provisions of non-discrimination on the basis of sexual orientation and gender identity, and are therefore, obliged to protect and promote the rights of LGBTIQ people in the ASEAN region.

“Malaysia is a member country of the UN Human Rights Council and Malaysia was re-elected for the second term this year. It is shocking that ASEAN with such collective expertise and knowledge on human rights; discrimination is still persistent in this region. This is evidenced by the exclusion of SOGI in the AHRD,” said Thilaga, an LGBTIQ activist.

In order for the AHRD to be a relevant and credible human rights tool that protects and benefits the ASEAN community as a whole without discrimination as it aspires to be, the declaration has to be consistent with existing international human rights laws.

Jean Chong of Sayoni from Singapore also expressed her disappointment to the exclusion of SOGI in the AHRD. “No ASEAN citizen can aspire to her/his fullest potential as a citizen in their respective country with the tunnel vision and self serving approach of their governments.”
“We encourage everyone to publicly denounce support and legitimacy of the ASEAN Declaration. The priority of this declaration is not human rights, but economic and political interests of the ASEAN states at the expense of the ASEAN peoples,” explained Ging Cristobal,International Gay and Lesbian Human Rights Commission (IGLHRC)

BACKGROUND
The Association of Southeast Asian Nations (ASEAN) is a regional organization established in 1967 that comprises of countries in the South East Asia region. In 2009, the ASEAN Intergovernmental Commission on Human Rights (AICHR) was formed to promote and protect the human rights of people in the region and was tasked to formulate the ASEAN Human Rights Declaration (AHRD), which aimed to standardize all human rights of all people in the Southeast region of Asia.
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