In July of this year, the Association of Southeast Asian Nations Intergovernmental Commission on Human Rights (AICHR) delivered to the Association of Southeast Asian Nations (ASEAN) Foreign Ministers a draft of the ASEAN Human Rights Declaration. The draft is the result of multiple sessions of the AICHR and is scheduled to be adopted this November. One of the stated goals of the Draft Declaration is to help establish a framework for human rights in the region, but civil society organizations (CSOs) are concerned that the Draft Declaration falls short of international human rights standards and that the drafting process has been characterized by a lack of transparency and consultation. The draft Declaration has not been widely circulated by the AICHR and the only copy available online was uploaded by the organization International Gay and Lesbian Human Rights Commission (IGLHRC).
The ASEAN Draft Human Rights Declaration
The Draft Declaration is modeled after other regional and international human rights instruments. In the Preamble, the drafters specifically reference the Universal Declaration of Human Rights (UDHR), which all ASEAN Member States are parties to as members of the United Nations. The drafters also make reference to “other international human rights instruments to which ASEAN Member States are parties.” Although the influence of the UDHR and other international human rights instruments can be seen in the rights guaranteed in the Draft Declaration, the specific language of particular articles at times departs significantly from these instruments.
The Draft Declaration expresses a commitment to upholding the rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). To that end, the Draft Declaration recognizes the rights to life, non-discrimination, freedom of religion, family life, health, education, freedom from torture, freedom of expression, and other rights protected not only in the ICCPR and ICESCR but in other regional human rights instruments, as well.
A significant departure from these human rights instruments, however, is found in Articles 6 and 7 of the Draft Declaration. Article 6 of the Draft Declaration stipulates, “The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives.” Further, Article 7 of the Draft Declaration states, “the realization of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.”
Neither the ICCPR nor the ICESCR contain such language. Further, while the American Declaration on the Rights and Duties of Man and the African [Banjul] Charter on Human and Peoples’ Rights stipulate that every individual has duties to his community, neither goes so far as to say that the rights guaranteed in those instruments are to be balanced with the performance of those duties. See American Declaration, Preamble; African Charter, Art. 27. In fact, the American Declaration states that rights and duties are interrelated: “The fulfillment of duty by each individual is a prerequisite to the rights of all.” American Declaration, Preamble. Meanwhile, the African Charter calls on individuals to promote and preserve positive cultural values. See African Charter, Art. 29(7). At the universal level, the Human Rights Committee has stated in General Comment No. 28 that traditional, cultural, and religious values may not be used to justify discrimination against women.
The Concerns and Recommendations of CSOs
The three-year old AICHR has consistently been criticized by CSOs for its apparent lack of transparency, independence, and effectiveness. See FIDH. According to these organizations, such shortcomings have affected the drafting of the Declaration. CSOs have expressed concern that the Draft Declaration:
fall[s] short of universal standards and principles on human rights under the 1948 Universal Declaration on Human Rights (UDHR) that each ASEAN member is a party to, raising concerns in the civil society community that the regional human rights declaration will be undermined by the invocation of State sovereignty and national and regional particularities.
[CRIN] Representatives of various international and regional CSOs have submitted recommendations to the AICHR for strengthening the Draft Declaration as well as improving the drafting process itself. [HRWG; Asian Forum for Human Rights and Development; Joint Statement of Civil Society Groups] The common criticisms put forth by these organizations are that the drafting process has not been transparent, the Draft Declaration does not protect the rights of certain marginalized and vulnerable groups, and that there is language in the Draft Declaration that could potentially weaken the exercise of the very rights it reportedly seeks to uphold. Id.
The lack of transparency surrounding AICHR proceedings has been a longstanding complaint of CSOs. Article 6.7 of the Terms of Reference of the AICHR requires the Commission to keep the public periodically informed of its work and activities. However,the AICHR has consistently refused to allow the public access to its documents and deliberations and formal meetings are not open to the public, NGOs, or National Human Rights Institutions. [FIDH] In the case of the Draft Declaration, CSOs repeatedly called on the AICHR to publish the drafts of the Declaration prior to it being made public in July. See, e.g., Joint Statement of Civil Society Groups. The AICHR refused on the ground that the Draft was a work in progress. [FIDH] Even now, there is no link to a copy of the Draft Declaration on the ASEAN or AICHR’s Web sites. Additionally, prior to the publication of the Draft Declaration, the AICHR held only one, one-day consultation with a limited number of CSOs. See, e.g., id. Participation was limited to four CSOs from each of the ten Member States and some CSOs were inexplicably denied permission to attend. Id.
CSOs have also criticized the AICHR for failing to provide adequate protection for specific groups. The rights of minorities, LGBTQI persons, indigenous peoples and persons deprived of liberty are not explicitly referenced in the Draft Declaration. [Joint Statement of Civil Society Groups] Although Article 2 of the Draft Declaration states that individuals have a right to enjoy the rights set forth in the Declaration free from discrimination based on “race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status,” there is a history of discrimination against certain groups, such as LGBTQI individuals, in the ASEAN Member States, raising an issue as to whether their rights would be read into the “other status” definition. [IGLHRC] To remedy this situation, CSOs have recommended explicitly recognizing the rights of these groups in the Declaration, but this has been met with resistance from some ASEAN Foreign Ministers on cultural and religious grounds. [Joint Statement of Civil Society Groups; HRWG]
The Draft Declaration also contains language that does not provide strong enough protection for certain fundamental rights. CSOs have expressed concern over the “balancing” language found in Article 6, pointing to the fact that this language has been used in the past to limit individuals’ exercise of their rights. [FIDH] Article 8 is also troubling to human rights organizations. Article 8 provides:
The exercise of human rights and fundamental freedoms shall be subject only to 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 […] public morality […]
Although language limitations to be placed on the exercise of certain rights on the basis of public morals is found in other international human rights treaties, including Article 18 of the ICCPR, human rights organizations have noted that this term has never really been defined at law and has been used to justify discrimination and the deprivation of human rights on the basis of social, cultural, and religious grounds. [APWLD] CSOs have therefore called for this and other limiting language to be removed. See, e.g., id.
Additionally, CSOs have called for Article 8 of the Draft Declaration to be amended to include language stating that “Member States shall at all times observe the relevant rules of international law, in particular the principle of non-derogability of fundamental human rights.” [Joint Statement of Civil Society Groups] This proposed amendment reflects concerns that the rights to life, freedom from torture, and protection from refoulement, among others were not adequately protected by the current language of the Draft Declaration. See id.
The AICHR’s Response
CSOs have reported that the AICHR and ASEAN Ministers have not been receptive to their recommendations. Foreign Ministers have stated that officially recognizing LGBTQI rights would be incompatible with the religious-based legal systems of several of their Members. [HRWG] Additionally, the Representative of Laos stated that Member States who do not have indigenous populations should not be held to protect indigenous rights despite the fact that Laos in fact does have an indigenous population and indigenous peoples reportedly make up 200 million of the 580 million people living in ASEAN Member States. Id.
In response to complaints by CSOs, the AICHR did finally publish the Draft Declaration and did hold another consultation session in September. However, like the earlier session, this month’s consultation was limited to one day and many CSOs were once again inexplicably denied permission to attend. See, e.g., FIDH.
Despite the belief held by CSOs that a meaningful dialogue cannot be held under such circumstances, the AICHR has announced no plans to postpone the adoption of the Draft Declaration which remains scheduled for this November. Id.