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 wahyuningrum@gmail.com

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.

The 3Cs in Human Rights Architecture

ASEAN Human Rights Systems

Conventions: Norms/ Instruments

Commission/Committee

ASEAN Human Rights Court??

ACWC 2010

AICHR 2009

ACMW 2008

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

MODALITIES, PRINCIPLES, NATURE

noninterference intergovernment al body evolutionary approach

AICHR & ACWC

consultative

consultation

consensus

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, Conventions ACWC can speak on behalf of women, children, victims
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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

ASEAN Charter, Article 14, 2008

Terms of Reference on AICHR, 2009

ASEAN Declaration on Human Rights, 2012

Conventions on Human Rights in ASEAN?

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 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 CSOS 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 states 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

CSOs positions toward AHRD

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 AICHR & Its Timelines

Protection of HRs Promotion of HRs

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 ASEANs 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?

CIVIL SOCIETY ENGAGEMENT WITH ASEAN

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 ASEANs high-level statements and documents.

ASEAN Guideline for the Engagement with Civil Society

2006S 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

2012S GUIDELINE
Generally better than the 2006s 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 Mechanisms

AICHR
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), JointWorkshop (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 2005 Place Shah Alam, Malaysia The Name of the Event 1st ASEAN Civil Society Conference (ACSC)

2006
2007 2009

Cebu, the Philippines

Singapore Bangkok, Thailand

2nd ASEAN Civil Society Conference (ACSC)

3rd ASEAN Civil Society Conference (ACSC) 4th ASEAN Civil Society Conference (ACSC)/ 1st ASEAN Peoples Forum (APF)

2009
2010 2011 2012 2013 2014

Hua Hin, Thailand

Hanoi, Vietnam Jakarta, Indonesia Phnom Penh, Cambodia Brunei Myanmar

5th ASEAN Civil Society Conference (ACSC)/2nd ASEAN Peoples Forum (APF)
6th ASEAN Peoples Forum (APF) ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples Forum (APF) 2011 ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples Forum (APF) 2012 March & November ASEAN Civil Society Conference (ACSC)/ ASEAN Peoples Forum (APF) 2013 April ?

What has been the collective knowledge we produced through 8 years ACSC/APF? ASEANs Alternative Regionalism
(Source: HRWG Study, 2011)
Particularly: Women & Youth, Indigenous People / Ethnic Minority, and CSOs Democracy Human Rights Transparency Accountability

Against unjust FTA, privatization, Reject neoliberal economic policies

Mainly: ILO, UNFCCC, CEDAW, UNCRC, UNDRIP, &MDGs

CSO Platforms in engaging ASEAN

Name
ACSC/APF

frequent Engaging the body

annually ASEAN SUMMIT Head of States/Governmen ts

ASEAN Disability Forum (ADF) ASEAN Youth Forum ASEAN Grass-root People Assembly ASEAN Community Dialogue

annually annually annually annually ASEAN Committee Permanent Representatives (CPR) ASEAN Ministers Meeting (AMM) ASEAN Secretary General (ASG) ASEAN Human Rights Mechanisms ASEAN Senior Official Meeting on SWD CPR

Civil Society Forum to AMM on human rights Informal Dialogue between CSO and ASG Jakarta Human Rights Dialogue in ASEAN GO-NGO Forum on Social Welfare & Development

annually annually annually annually

Foreign Ministers Secretary General AICHR, ACWC SOM officials

Leaders Interface Meeting with CS

Year ACSC/APF Process (Track III/CS) ASEAN ISIS Process (Track II/Think Tank)

2005, Malaysi a

1st ACSC/ ASEAN Civil Society Conference in Shah Alam 15 Minute Meeting Mixed Delegation of 10 and 10 ASEAN Heads of State APA/ASEAN Peoples Assembly by ASEAN ISIS (process recognized by ASEAN Chair) in Manila No Interface Meeting with Leaders. Instead Reading of APA Chairmans Report ACSC 2007 by SIIA Simon Tay (process recognized by ASEAN Chair) No Interface Meeting with Leaders. Instead Reading of ACSC 2007 Chairmans Report

2006, 2nd ACSC Philippin No Interface Meeting with es Leaders

2007, 3rd ACSC Singapo No Interface Meeting with re Leaders

Leaders Interface Meeting with CS

Year 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 State Hua-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) 2nd ASEAN Peoples Forum/5th ASEAN Civil Society Conference 15 minutes, Interface Meeting between CS Delegation (some government appointed) and ASEAN Heads of State (optional)

2009 October, Cha-am

2010 Hanoi

6th APF No Interface Meeting with Leaders. Instead CS Reps met with Chair of ASEAN, the Vice Prime Minister of Vietnam. Recognition of the process. ASEAN Chairmans statement: 2 paragraphs appreciation of organizing of the APF and took note of

Leaders Interface Meeting with CS

Year ACSC/APF Process (Track III/CS)

2011, 10 persons representing 10 countries Jakarta 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 Indonesias President greets all CS Delegates at the door Indonesias 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 Indonesias President, Malaysia PM Najib, Razak, Thai PM Abishit Vejajiva, and PM Vietnam Nguyen Tan Dzung responded (see Annexes) Indonesias President gives closing remarks and walks toward the CS Delegate and shakes their hand one by one. All leaders

Leaders Interface Meeting with CS

Year 2012, Phnom Penh ACSC/APF Process (Track III/CS)

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 Societys 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