ASEAN Human Rights Declaration

Association of Southeast Asian Nations finally officially adopted its long awaited  ASEAN Human Rights  Declaration at the ASEAN Head of States meeting at 19 November 2012. You can see the declaration here.

Before the official announcement, observers and critic had  been afraid that the coming Declaration would not be up to the international standards of human rights protection. The ASEAN Intergovernmental Commission on Human Rights (AICHR) -  the drafting committee - was heavily criticized, in particular for its lack of transparency. AICHR did  open many consultation process with civil society organizations. However, observers said that these consultations often effectively went one way, with representatives from the civil society giving inputs and ideas with relatively minimum response or feedback from members of AICHR. Also, the general public were not given many opportunities to see the draft of the declaration. The civil society had no way of knowing whether their recommendations were incorporated into the declaration or not.

Another issue is the composition of AICHR. In accordance to its Term of Reference (see here), in particular article 5, each member of AICHR represents his/her own government and is accountable to his/her government. Critics say that this would compromise the independence of the Commission. Many questioned the sincerity of ASEAN to build a true human rights regime in Southeast Asia.(i)

When the Declaration was announced, it was received with mixed responses from civil society organizations in Southeast Asia. Critics point out that several provisions in the declaration have the potential to weaken ASEAN members' commitments towards human rights because they set a lower standard compared to the existing international human rights conventions and treaties.

Reading at the Declaration, I would say that the most problematic provisions are paragraph 6 - 8 of the General Principles. I quote them below (emphases are mine):

6. 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. It is ultimately the primary responsibility of all ASEAN Member States to promote and protect all human rights and fundamental freedoms.

7. All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realisation 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.

8. The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others.  The exercise of human rights and fundamental freedoms shall be subject only to such 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 national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.

The three paragraphs above contain some words that echo the Asian Values Debate of three decades ago(ii). In short, proponents of the Asian Values say that human rights principles should be adjusted into the national and regional context to be applicable. Asian communities, they continue, put more emphasis on the importance of the group (society or the community) over the individuals, and that individuals should put forward their obligations and duties towards the community before claiming their rights. In addition, for Asian societies public morality is an important issue and that the state should act as its guardian. At least, this is what their proponents claimed.

The main problem with these three paragraphs is that they provide an opportunity for governments to not provide maximum human rights protection to its citizens. The term "national and regional context" is a handy  excuse for governments to not fulfill certain human rights obligations. The concept of "duties" is also useful   to shift responsibilities away from governments to the individual citizens. And "Public morality" is a vague concept. Often times it is used to justify repressive actions against certain groups, in particular LGBTs and women.

However, even with these flaws, I remain an optimist. I think the AHRD should be considered as "a living document"(iii). Meaning that its eventual understanding and interpretation will pretty much depend on the actions of ASEAN members in the future. Also, this is the first broadly-based non-binding human rights declaration  for ASEAN(iv). The next step after this is to produce a more binding human rights document in the form of ASEAN Convention on Human Rights. Such document will have greater impact for the building of a human rights regime in the future. We hope, if it ever happens at all, the document will be more progressive than the one we have now.


End notes: 

(i) There is also an issue related to ASEAN's principle of non-intervention. For more discussion on this principle and its relation to building a human rights regime in Southeast Asia, please go here.
(ii) For an introduction on Asian Values go here. You can also read a dissenting article from Amartya Sen on why Asian Values actually do not contradict universal human rights values here. There is also a good wikipedia article you can read as a reference point of the debate here.
(iii) I am borrowing this phrase of "AHRD is a living document" from Yuyun Wahyuninggrum, from Human Rights Working Group (an Indonesian based NGOs Coalition) at a conference in Bali, November last year.
(iv) ASEAN has at least two other human rights declaration before the AHRD: the ASEAN Declaration on the Elimination of Violence Against Women  and the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children

The Rights of Persons with Disabilities in Regional Human Rights Declarations and Conventions around the World

This article also appears at: http://www2.agendaasia.org/index.php/news/151-the-rights-of-persons-with-disabilities-in-regional-human-rights-declarations-and-conventions-around-the-world


In November, head of states of Association of South East Asian Nations ( ASEAN) will gather in Phnom Penh for the 21st ASEAN Summit. There, they are expected to adopt the ASEAN Human Rights Declaration (AHRD), which will represent a major milestone in the struggle for human rights in Southeast Asia, including for the human rights of persons with disabilities. Since the beginning of the drafting process, disabled people’s organizations have been involved in the consultation process with the drafting committee, the ASEAN Intergovernmental Committee on Human Rights (AICHR). They have lobbied, discussed and given inputs and suggestions to the committee on how to include the rights of persons with disabilities in the declarations. It is expected that the declaration will include several provisions on disabilities.

In the anticipation for the upcoming declaration, it is important for us to understand how other (and older) regional human rights declarations recognize disability rights. Such understanding will enable us to assess where we stand so far in terms of giving protection to the rights of persons with disabilities.

The oldest regional human rights declaration is the Organization of American States (OAS) Declaration on the Rights and Duties of Man, which actually predated even the Universal Declaration of Human Rights (UDHR). The OAS Declaration was adopted in April 1948 in Bogota, Colombia, whereas the UDHR was adopted by the UN General Assembly in December 1948 in Paris.

Interestingly , both the UDHR and the OAS Declaration, in regards to disability rights, seem to have almost identical wording.  Article 25 (1) of the UDHR says that:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Whereas article XVI of the OAS Declaration says:

"Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living."

This seems to reflect the spirit of the time where the rights of persons with disabilities were not central to the contemporary understanding of human rights. Both declarations only mention disability in relation to the right to social security and services.  The European Convention on Human Rights (ECHR), which was signed in 1950 (and came into force in 1953), does not mention disability at all.

The African Charter on Human and Peoples’ Rights was much more progressive in terms of disability rights than the two older regional human rights mechanisms. Article 18 (4) of the charter recognizes that:

"The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs."

At the time this charter was adopted by the African Union in 1981 this provision was considered to be very progressive. There are a number of reasons for this inclusion. One is the increased global recognition of the rights of persons with disabilities. The year 1981, the year when the Charter was adopted, was designated by the UN General Assembly as the International Year of Disabled People. Various developments in the African continent itself, such as the existence of numerous conflicts in the continent which left a significant proportion of the African population with disabilities, may also compel the drafter to include special provisions for disabled people. However, the Charter still uses the charity-based approach which focuses on providing protection and care. It does not put the rights of persons with disability as part of human rights.

The African Charter also has an additional protocol on Rights of Women in Africa (also called the Maputo protocol, which was adopted by the African Union in 2003). Article 23 of the Protocol recognizes the special rights of women with disabilities. It says:

The States Parties undertake to:
a) ensure the protection of women with disabilities and take specific measures commensurate with their physical, economic and social needs to facilitate their access to employment, professional and vocational training as well as their participation in decision-making;
b) ensure the right of women with disabilities to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.

The most recent regional human rights instrument is the Charter of Fundamental Rights of the European Union. This charter was adopted in 2000 and by far the most progressive in terms of disability rights. It has a non-discrimination principle in Article 21 that includes disability, which says:

"Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."

Even more progressive is article 26 which obliges the European Union members to:

"...recognizes and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community..." 

Looking at all the regional declarations and conventions, we can see a clear progression on the recognition of the rights of persons with disabilities throughout the world. The expectation is that the AHRD will be able to at least equal the other regional human rights instruments.

Links for all the regional human rights instruments:

The European Convention on Human Rights

The Charter of Fundamental Rights of the European Union

American Declaration on the Rights and Duties of Man

African Charter on Human and Peoples' Rights:

Maputo Protocol

ICC: one verdict, ten years, $900 million, worth it?

Today ICC delivered its first verdict, 10 years after it was first established. It has used up to $900 million of expenditure in 10 years with just one verdict to show. With cases lining up to be tried many worry that ICC budget will keep going up significantly. Some begin to question ICC effectiveness and, even, usefulness.

I think such concern is justified, Yet, I believe that despite the cost it is worth it to have ICC as a permanent international court. The international world needs ICC as a mechanism to ensure prosecution for the worse international crimes. Without it, we will be left only with regional mechanisms, or international tribunals such as the ones for former Yugoslavia and Rwanda, and  everybody knows how expensive international tribunals can be. In fact they are actually more expensive than ICC. Whereas regional mechanisms have limited reach and scope. ICC is relatively cheaper than international tribunals and have wider reach and scope than the regional mechanisms.

In addition to that, ICC can play a larger role than just prosecuting cases. It can add pressures to governments to take actions to stop human rights violation by using its investigation and communication function, it can help shape public opinions, and many more.

ICC helps by shaping international law jurisprudence by its decisions (although we only have one so far, I am sure we will have more). Countries can refer to ICC to help decide human rights cases on their own.

Lastly, ICC is a noble human endeavor which should not be judged by how much it costs us. We sent human to the moon, probes to the farthest distance of the solar system, and we don't care about how much that cost us, because we believe that such endeavors will advance civilization and the human race. We should treat this ICC project with the same passion and belief. At the very least, I think it is better to fund ICC than to pay for more guns and bombs.

Yes. ICC is worth it.

Check this link for more info: http://www.icc-cpi.int/NR/exeres/A70A5D27-18B4-4294-816F-BE68155242E0.htm