Towards an Asean declaration of human rights
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Towards an Asean declaration of human rights

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.

Karen and Burmese migrant workers march through Mae Sot municipality in Tak on the occasion of International Migrant Day on Dec 18, 2011, to demand the same wages and welfare as their Thai counterparts are entitled to.

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.

Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as Special Rapporteur.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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