Joint submission to the ASEAN Intergovernmental Commission on Human Rights on the ASEAN Human Rights Declaration by Civil Society Organisations and people’s movements participating in the Fifth Regional Consultation on ASEAN and Human Rights, 22 June 2012
25 June 2012 4:27 pm

The need to ensure that the human rights protections in the Declaration are not lower than those enshrined in universal standards:

This provision will reflect ASEAN’s determination that its Human Rights Declaration becomes part of the universal system of international and regional human rights instruments and will provide for all individuals, groups and peoples at least the level of human rights protections that they already enjoy under existing universal treaties and other instruments. See Article 2(j) of the ASEAN Charter.

The apparent inclusion in the draft Declaration of an overarching “General Principle” providing for a “Balance between rights and responsibilities”;

Such “balancing” is alien to the concept of “inalienable” human rights (Universal Declaration of Human Rights (UDHR), 1st preambular paragraph). No existing international or regional human rights instrument seek to define a mutual relationship in terms of “balancing” the human rights of individuals on the one hand and their “duties” or “responsibilities” on the other.

The apparent inclusion in the draft Declaration of an overarching “General Principle” providing for a “Limitation of rights”:



We propose:

Under international law, only certain limitations, strictly and narrowly defined, may be imposed on a limited number of rights.

International law also elaborates for principles governing any acceptable restrictions on rights, whilst providing that key human rights may not be derogated from under any circumstances (International Covenant on Civil and Political Rights (ICCPR), Art. 4).

The apparent inclusion in the draft Declaration of an overarching “General Principle” providing for “Taking into account national and regional particularities”:

We propose the deletion of any provision that includes such explicit or implicit conditioning.

Regional and national contexts cannot be used by states as an excuse to weaken the protection of human rights as provided in universally agreed standards. In fact, the opposite is true. For instance, Art. 5 of CEDAW provides inter alia that “States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.

There is a growing awareness of the duty of states to address human rights abuses by non-state actors, from the domestic scene to transnational corporations, which should be reflected in the Declaration. See e.g. UN Declaration on the Elimination of Violence against Women, Art. 4(c).

The need to ensure implementation and dissemination of the Declaration:

Unless the Declaration is implemented by states parties and disseminated widely to the population it will remain ineffective and obscure. The need for this provision is therefore self-evident.

The need to monitor and assess the impact and dissemination of the Declaration:

The need for this provision stems from the previous one.

The need for cooperation with civil society and the public as a whole in promoting and protecting human rights:

This provision would ensure that the Declaration reflects ASEAN member states’ legal obligation, under the ASEAN Charter to “promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building” [Art. 1(13)].

Right to life:

Everyone has an inherent right to life. No one shall be deprived of this right.

This represents a progressive reading of the current state of international human rights law.

Enforced disappearance:

Enforced disappearance must be included explicitly in light of current international trends.

Indonesia and Thailand have signed the International Convention Against Enforced Disappearances.

Right to information:

Ensure that right to impart and receive information is protected explicitly as set out in the UDHR and subsequent international treaties.
Indonesia has a Law on Freedom of Public Information. Malaysia has state-level legislation (two states) and the Philippines Congress is considering Freedom of Information legislation.

Right to electronic privacy:

The right to privacy includes the right to protect personal data, especially in electronic form.

This reflects developing state practice in the ASEAN region.

This reflects the e-ASEAN initiative.

See ICCPR Art. 17.

Political participation and voting:

This reflects UDHR Article 21 and subsequent developments in international human rights law, including the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and UN Security Council Resolution 1325.

Freedom of religion and belief:

Reflecting the language of the UDHR Article 18 and subsequent international human rights law.

Access to justice:

Access to justice should cover all forms of justice, whether formal or informal.

Access to remedy:

See UDHR Art. 8; ICCPR Art. 2(3)

Right to nationality:

Right to nationality:

Right to self-determination:

The AHRD should not frame economic, social and cultural rights as State rights, but rather as the duty of member states to protect and fulfil these rights. See ICCPR, International Covenant on Economic, Social and Cultural Rights (ICESCR), Art. 1; UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Right to an adequate standard of living:

Right to an adequate standard of living:

See Philippine Constitution, Sec. 16, Art. 2, and further elaboration by the Supreme Court of the Philippines in the case Oposa v. Factoran (1993)

Right to work

The right to work should be enjoyed without discrimination on any form or basis. The AHRD should avoid languages that would grant this right only to a certain category of persons.

Right to form and join a union:

The AHRD should not include any language that implies this right could be subject to national laws and regulations without making explicit that national laws should protect this right and should be consistent with international human rights and labor rights standards. See ILO Conventions 87 and 98.

Right to health

General Comment 14 of the ICESCR recognizes the right to health as including sexual and reproductive health. Sexual health is distinct from reproductive health and therefore should be recognized. These two issues are inter-related. Lack of protection of the right to sexual and reproductive health affects both sexes.

National laws cannot be invoked as a justification to derogate from rights protected under international law. If national laws and regulations must be mentioned, it should phrased as : “States should take all necessary measures to protect and fulfil this right, including through legislations, consistent with international human rights standards and law.”

Right to education

This is consistent with the UN Declaration on Human Rights Education and Training.

Trade, globalization and human rights

See UN the Special Rapporteur on the right to food’s Guiding Principles on Human Rights Impact Assessment for Trade and Investment Agreements. The Rapporteur states: “since States are bound by these pre-existing treaty obligations, they are prohibited from concluding any agreements that would impose on them inconsistent obligations. Therefore, there is a duty to identify any potential inconsistency between pre-existing human rights treaties and subsequent trade or investment agreements, and to refrain from entering into such agreements where such inconsistencies are found to exist.” This is also consistent with Vienna Convention on the Law of Treaties, arts. 26 and 30, para. 4 (b).

Human rights-based approach to the right to development

The UN Declaration on the Right to Development defines this right as “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”
Development should be understood as a process and not a product and therefore requires respect for all human rights, including the principles of equality and non-discrimination.

Where possible, we recommend that provisions be gender-neutral. For example, with respect to the apparent inclusion of a provision that “Men and women shall have the right to marry…”, we propose:

The apparent inclusion of the phrase “No one shall be arbitrarily deprived of his nationality.” We propose:

This suggestion is to reflect non-discrimination principles.

The apparent inclusion of the phrase “The family is the natural and fundamental unit of society.” We propose:

The suggested wording reflects another application of non-discrimination principles.

With respect to the right to asylum, the apparent inclusion of the phrase “as required by law.” We propose:

The suggested wording is derived from the Universal Declaration of Human Rights. Since the AHRD is an aspirational document, the phrase “as required by law” is unnecessary. The concept of non-refoulement is a fundamental and essential principle of customary international law, including international refugee law.

Reference to specific groups within a general principle of non-discrimination. We propose:

International law has applied non-discrimination principles to a broad variety of different groups. The proposed wording reflects this comprehensive and increasingly inclusive approach under international law.

The lack of a provision on substantive equality. We propose:

This reflects the state of international human rights law, in particular under the International Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW)

Realisation of equality for marginalised groups needs to compensate for or cater to the difference, disparity or disadvantage experienced by them and ensure that equality is achieved both formally (de jure) and in practice (de facto).

To the extent reference is made to “vulnerable and marginalized groups”, we propose deletion of the word “vulnerable”:

The use of the word “vulnerable” implies that certain groups are unable to assert or defend their rights.

Lack of a provision on the right to rest and play. We propose:

This provision is derived from the UDHR, art. 24.

Lack of provision for indigenous peoples. We propose:

Taken from UNDRIP, for which all ASEAN member states have voted in support

Lack of a clear provision protecting children. We propose:

This suggested provision is derived from the CRC, to which all ASEAN Member States are party.

Lack of a provision on migrant workers. We propose:

This provision is consistent with international standards reflected in the ASEAN Declaration on the Promotion and Protection of the Rights of Migrant Workers, the UN Convention on Migrant Workers and ILO standards. Given that much of the global migrant workforce originates in ASEAN countries, migrant workers deserve mention in the AHRD.

Lack of a provision on the rights of persons with disabilities. We propose:

This suggested provision is drawn from the Convention on the Rights of Persons with Disabilities, Arts. 1 and 5(3).
The Convention defines “reasonable accommodation” as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.