FW: [ASEANcats] An Opinion on ASEAN Human Rights Declaration
Mark Capaldi
regional mechanisms..........
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A GUARANTEE OF FREEDOMS
Towards an Asean declaration of human rights
- Published:
20/01/2012<http://www.bangkokpost.com/search/news-and-article?
xDate=20-01-2012&xAdvanceSearch=true>
at
12:00 AM
- Newspaper section:
News<http://www.bangkokpost.com/search/news-and-article?
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A much awaited outcome of the Association of Southeast Asian Nations's
commitment to human rights in 2012 will be the finalisation of an Asean
instrument on human rights, particularly in the form of a Human Rights
Declaration. It will underline the perception and position towards human
rights in this region. The drafting process under the Asean
Intergovernmental Commission on Human Rights (AICHR), is now in full
swing and is expected to gather momentum leading to a crescendo in the
next few months.
Auspiciously, the process is not starting from zero and is already
shaped by the Asean Charter which calls for the setting up of a regional
human rights body, as well as the terms of reference of the AICHR. There
are also two other bodies working on human rights in specific areas,
namely the Asean Commission on the promotion and protection of the
rights of women and children, and the Asean Committee on the
implementation of the Asean Declaration on the Promotion and Protection
of the Rights of Migrant Workers, both with their own terms of
reference.
At the outset, it can be noted that while the charter does not define
human rights, it refers to various principles, including in Article 2,
which should influence the draft declaration. It calls for "respect for
fundamental freedoms, the promotion and protection of human rights, and
the promotion of social justice and upholding the United Nations Charter
and international law".
Meanwhile, the terms of reference of the AICHR states as one of its
purposes, in Article 1: "To uphold human rights standards as prescribed
by the Universal Declaration on Human Rights, the Vienna Declaration (of
the
1993 World Conference on Human Rights) and Programme of Action, and
international human rights instruments to which Asean Member States are
parties."
Currently, all Asean countries are parties to the Convention on the
Elimination of All Forms of Discrimination against Women and the
Convention on the Rights of the Child. Increasingly, many are also
becoming parties to other key treaties such as the Covenant on Civil and
Political Rights and the Covenant on Economic, Social and Cultural
Rights.
Yet, it can be surmised that in the drafting process of the future
declaration, there could be some challenging areas, include the
following:
First, the less liberal trends will probably try to raise the issue of
national sovereignty and the principle of "non-interference in the
internal affairs of a state" to limit the application of human rights.
From an international perspective, however, sovereignty itself comes
with the responsibility to protect human rights. Moreover, international
human rights advocacy is a part of international law and jurisdiction,
and cannot be considered to be interference in the affairs of a
sovereign state. This is easily illustrated by the fact that all Asean
countries were and are against apartheid, and have never considered
their advocacy on this front to be interfering in the internal affairs
of another state.
Second, there may be a question as to whether to refer to various
particularities, such as by means of the term "Asean values", in the
draft text.
The term itself has a negative connotation because it is linked with the
much criticised "Asian values". Basically, these terms imply that there
should be deference to "authority", particularly dictating that the
government's action should prevail over the rights of individuals and
that economic rights should prevail over political rights. It should not
be forgotten that the term "Asean values" was rejected in the drafting
of the terms of reference of the AICHR.
A better term is to underline "values in Asean" which support universal
human rights standards. A positive list of these values includes our
commitment to peace, non-violence from the home to the state level, and
a caring community that cherishes human dignity and the rights and
freedoms of individuals to help strengthen international human rights
law rather than to compromise it.
Third, this region as elsewhere likes to talk about not only rights but
also duties and responsibilities. The draft declaration should aim for a
balance between responsibilities on the part of individuals and
responsibilities on the part of the state and other non-state actors.
Internationally, every person is already under a duty towards his or her
family, community and state, and he/she must exercise his or her rights
with due regard to the rights of others. For instance, freedom of
expression cannot be used to defame others.
However, the duties and limitations to be imposed on individual rights
must also be based on fair and transparent criteria: there must be a
limitation on the limitations.
Internationally, therefore, if there are to be such limitations to
constrain the exercise of human rights, they must be in accordance with
the law and not be based on arbitrary action; necessary in view of the
risks; proportionate to the circumstances; and in the pursuit of
democratic aims.
Moreover, some rights such as the right to life and freedom from
torture, are absolute and cannot be constrained.
It is also important to highlight that human rights are based on
non-discrimination; they are not only the rights of our nationals but of
all persons on our territory, including stateless persons, refugees,
displaced persons, migrant workers, minorities and indigenous peoples,
bearing in mind gender sensibility.
The rights are premised on basic minimum standards of humane treatment
for all, such as protection from violence, access to justice and access
to basic services and assistance, including free and compulsory
education, birth registration and emergency healthcare.
On another front, it is now internationally accepted that every nation
has a responsibility to protect its population from serious violations,
such as genocide, war crimes and crimes against humanity, failing which
the international community can offer a helping hand and take other
actions under the UN charter.
Therefore, what is at stake is that a future Asean Declaration should _
both in form and content _ not be lower than universal human rights
standards. It should also progressively open the door to more effective
implementation of human rights in the region in a comprehensive manner,
such as through human rights responsive laws, policies, practices,
mechanisms and resources. Civil, political, economic, social and
cultural rights are to be promoted and protected holistically and not in
a segmented manner.
Just as human rights, the issues of peace, democracy, sustainable
development and respect for the environment are inextricably intertwined
and are part and parcel of the preferred value of Asean connectivity.
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*Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He
has helped the UN in a variety of capacities, including as Special
Rapporteur.*
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