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Towards an ASEAN Commission on

the Promotion and Protection

of the Rights of Women and Children

Study by

The Office of Human Rights Studies and Social Development (OHRSD)

Mahidol University, Thailand

Submitted to

The Working Group for an ASEAN Human Rights Mechanism

Supported by

MAHIDOL UNIVERSITY


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Towards an ASEAN Commission on

the Promotion and Protection ofthe Rights of Women and Children

Study report submitted by

Office of Human Rights Studies and Social Development (OHRSD)Mahidol University, Thailand

To


Supported by

SEARCH/CIDA-Canada


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Towards an ASEAN Commission on the Promotion

and Protection of the Rights of Women and Children

By

Sriprapha Petcharamesree, Ph.D, Mahidol University

Maureen Maloney, Professor of Law, University of Victoria

Varaporn Chamsanit, Ph.D, Mahidol University

Sunsanee Suthisunsanee, MA.

This research was commissioned by


Supported by SEARCH/CIDA-Canada

The Office of Human Rights Studies and Social Development

Faculty of Graduate Studies, Mahidol University, Thailand

June 2008


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Acknowledgements

This research report was prepared by the Research Team from the Office of Human

Rights Studies and Social Development (OHRSD), Faculty of Graduate Studies,

Mahidol University, Thailand. Professor Maureen Maloney from the Faculty of Law,University of Victoria, Canada has kindly contributed to the research works.

This research report is based primarily on the review of official documents at both

ASEAN and national levels, and the State Reports for the CRC and CEDAW,

including the Concluding Observations made by the UN Committees on CRC and

CEDAW. Some findings and most of the recommendations included in the report are

drawn directly or indirectly from the discussions and views expressed by participants

during two regional consultative meetings held in Bangkok in November 2006 and

April 2007 respectively.

The Research Team is grateful to the Working Group for an ASEAN Human Rights

Mechanism for their confidence in entrusting our Team with the carrying out this

research. The Research Team would also like to thank the Working Group and its

members for their patience with respect to the overdue nature of this research report.

Their encouragement and understanding was and is very much appreciated.

The Research Team is very thankful to all participants involved in the workshops

organized during the research process. Their participation and frank discussion

represented an invaluable contribution to the preparation of the research.

The Team wishes to express our sincere gratitude to SEARCH/CIDA Canada for theirfinancial support, without which this research could not have been realized. Thanks

are also extended for the unreserved support from Maureen Maloney, Melinda

MacDonald and Michael Miner. Assistance in editing the report rendered by Melissa

Stewart is highly appreciated.

Finally, thanks to all colleagues and students who provided a hand in the research

process.

The Research TeamJune 2008, Bangkok, Thailand


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CONTENTS

Page(s)ACKNOWLEDGEMENTS

LIST OF TABLES

LIST OF ACRONYMS

EXECUTIVE SUMMARY i-xx

CHAPTER I: Towards an ASEAN Commission on the Promotion and 1-13

Protection of the Rights of Women and Children

CHAPTER II: ASEANs Commitment to the Promotion and Protection of 14-43

the Rights of Women

CHAPTER III: Legal and Political Commitment to Human Rights of Children 44-76

in ASEAN and ASEAN countries.

CHAPTER IV: Lessons Drawn from a Comparative Analysis of Existing 77-106

Human Rights Machineries in Africa, the Americas and Europe

CHAPTER V: Towards an ASEAN Commission on the Promotion and 107-126

Protection of the Rights of Women and Children :

Conclusions and Recommendations

BIBLIOGRAPHY 127-134

ANNEX Annex I : List of participants (the Expert Meeting) 135-137 Annex II : List of participants (Regional Consultative Meeting) 138-141 Annex III: Law, Policies and Mechanisms Pertaining to Children 142-149

in ASEAN Countries


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List of Tables

Page(s)

Table 1. Status of Ratification of Human Rights Instruments in ASEAN 6

Table 2. ASEAN States Ratifications of the ILO Conventions 7

Table 3: Status of ASEAN member countries ratification of 18

the CEDAW Convention, reservations, and its Optional Protocol.

Table 4: Status of ASEAN member countries reports to 20

the CEDAW Committee

Table 5. Status of Ratifications of CRC/OP1 and OP2 51

Table 6: Status of the State Reports to the CRC Committee 54


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List of Acronyms

ACW ASEAN Committee on Women

AMM ASEAN (Foreign) Ministerial MeetingASCC ASEAN Socio-Cultural Community

ASEAN Association of South East Asian Nations

ASW ASEAN Sub-Committee on Women

AWP ASEAN Womens Programme

CAT Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

CEDAW Convention on the Elimination of All Forms of Discrimination against

Women

CIM Inter-American Commission of Women

COMMIT Coordinated Mekong Ministerial Initiative Against Trafficking

CPCC (Vietnam) Committee for Protection and Care of Children

CPT European Committee for the Prevention of Torture and Inhuman orDegrading Treatment or Punishment

CRC Convention on the Rights of the Child

CWC (Philippines) Council for the Welfare of Children

EC European Commission

EPG Eminent Persons Group

GMS Greater Mekong Sub-region

HLTF High Level Task Force

HIV/AIDS Human Immunodeficiency Virus/Acquired Immune Deficiency

Syndrome

ICCPR International Covenant on Civil and Political Rights

ICCPR-OP1 Optional Protocol to the International Covenant on Civil and Political

Rights-Individual ComplaintsICCPR-OP2 Second Optional Protocol to the International Covenant on Civil and

Political Rights, aiming at the abolition of the death penalty

ICERD International Convention on the Elimination of All Forms of Racial

Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICRMW International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families

ILO International Labour Organization

IPEC International Programme on the Elimination of Child Labour

Komnas HAM National Commission on Human Rights (Indonesia)

MOU Memorandum of Understanding

NCRC (Myanmar) National Committee on the Rights of the Child

NGOs Non-Governmental Organizations

OAS Organization of American States

OP-CEDAW Optional Protocol to the Convention on the Elimination of All Forms of

Discrimination against Women

OP-CRC-AC Optional protocol to the Convention on the Rights of the Child on the

involvement of children in armed conflict

OP-CRC-SC Optional protocol to the Convention on the Rights of the Child on the

sale of children, child prostitution and child pornography

OP-CAT Optional Protocol to the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

SEA South East AsianSOM (ASEAN) Senior Officials Meeting
http://www2.ohchr.org/english/law/cat.htmhttp://www2.ohchr.org/english/law/cat.htmhttp://www2.ohchr.org/english/law/cat.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/cat-one.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/crc-sale.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/crc-conflict.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/cedaw-one.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cmw.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/cerd.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/ccpr-death.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/cedaw.htmhttp://www2.ohchr.org/english/law/cat.htmhttp://www2.ohchr.org/english/law/cat.htmhttp://www2.ohchr.org/english/law/cat.htm


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SOMY (ASEAN) Senior Official on Youth

TAC Treaty of Amity and Cooperation 1976

UDHR Universal Declaration of Human Rights

UN United Nations

UNIAP United Nations Inter-Agency Project on Human Trafficking

UNICEF United Nations Childrens Fund

UNOHRC United Nations Office of the Human Rights Commissioner

VAP Vientiane Action Programme


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EXECUTIVE SUMMARY

Towards an ASEAN Commission on the Promotion and Protection of the Rights

of Women and Children

The establishment of a regional human rights mechanism in Asia has been a long-

standing concern in the United Nations and for the peoples of the ASEAN region. A

regional human rights mechanism is important in order to hold human rights violators

accountable for their acts at regional and international levels, especially when there is

no adequate domestic remedy. As women and children constitute more than half of

ASEAN population, and are also recognized as vulnerable disempowered groups

deserving of special protection, it is important for ASEAN to take action to develop a

mechanism to promote and protect the rights of women and children. A specialized

ASEAN Commission on the Promotion and Protection of the Rights of Women and

Childrencan play a role in filling gaps which cannot be tackled by a general human

rights mechanism, and in doing so, aid in empowering women and children.

As the establishment of such an ASEAN Commission is now being envisioned by

ASEAN (as part of the Vientiane Action Programme) it was decided that an analytical

review of the legal and political commitments to the promotion and protection of the

rights of women and children in ASEAN, a study of models of existing regional

human rights machineries from around the world are needed in order to finally

provide recommendations for the development of an effective and acceptable

specialized body for ASEAN.

In 2005, at a meeting in Lao PDR, ASEAN Senior Officials tasked the Working

Group to assist in the implementation of certain VAP programme areas, including the

establishment of a commission on the promotion and protection of the rights of

women and children. With the support of the SEARCH (South East Asian Regional

Cooperation in Human Development Project) the Working Group requested the

Office of Human Rights Studies and Social Development, Faculty of Graduate

Studies, Mahidol University, to conduct this study. The study has been a participatory

process. The team organized two regional consultative meetings with relevant


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Towards an ASEAN Commission on the Promotionand Protection of the Rights of Women and Children Executive Summary

government agencies, representatives from the human rights and specialized

institutions, NGOs working on the issues of the rights of women and children, as well

as academics, and undertook extensive documentary research, particularly of country

reports submitted to the UN by ASEAN state parties. The four areas of focus by the

study team included 1) violence against women; 2) discrimination against women and

children; 3) trafficking in women and children; and 4) the four principles of child

rights, namely child protection, child survival/development, the best interests of the

child , and child participation.

The report is divided into five parts, including a background on ASEAN and human

rights and an overview of the legal framework, the existing policies and protection

mechanisms in ASEAN relating to both the rights of women and the rights of

children. The study also includes a review of human rights mechanisms and

specialized regional human rights machineries existing in other regions with a view to

learning from their experience. The report concludes with practical recommendations

made during consultations on how best to develop an effective ASEAN Commission

on the Promotion and Protection of the Rights of Women and Children.

In the first chapter the report provides an overview of ASEAN and human rights.

ASEAN was established in 1967 with, among other purposes, to promote regional

peace and stability through abiding respect for justice and the rule of law in the

relationship among countries of the region and adherence to the principles of the UN

Charter, which at its core promotes and encourages respect for human rights and

fundamental freedoms for all without discrimination as to race, sex, language or

religion. Although there are no specific ASEAN documents to date that focusexclusively on human rights, the concept of the respect for human rights has been

mentioned in various declarations, communiqus and speeches by ASEAN leaders

and senior officials over the years. In the early 1990s ASEAN issued joint

communiqus emphasizing the acceptance of human rights by all ASEAN states but

noting that implementation of human rights in the regional context should not violate

national sovereignty. And in 1993, ASEAN included a specific section devoted to

ASEANs commitment to human rights in its Joint communiqu of the 26 th ASEAN-

AMM, and for the first time considered the establishment of an appropriate regional

OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism

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mechanism on human rights. After a period of inactivity on the issue the ASEAN

Vision 2020 adopted in 1997 incorporated many principles of human rights, such as

the principle of non-discrimination, and the promotion of democratic societies. Under

this Vision, a series of road map were adopted, including the Hanoi Plan of Action

(1999-2004) which listed human rights activities which were to be implemented

within a given time frame. These activities included the proper implementation of

CEDAW and the CRC and the establishment of a center for the exchange of human

rights information. However in retrospect, only 2/3 of these activities were ever

implemented.

In 2004, ASEAN adopted its most ambitious policy agenda which includes human

rights - the Vientiane Action Programme (VAP). In it ASEAN committed to a

stock-taking of existing human rights mechanisms and bodies, the formulation of an

MOU to create a network among human rights institutions as well as a work program

and cooperation system, an elaboration of the ASEAN instrument on the protection of

the rights of migrant workers and, the establishment of an ASEAN Commission on

the promotion and protection of the rights of women and children. The Working

Group for an ASEAN Human Rights Mechanism, who ASEAN now recognizes, in

ASEAN Charter, as a stakeholder, should be given recognition for its efforts in

advocating for this agenda. In November 2007, the ASEAN leaders adopted the

ASEAN charter, which all ten countries have already ratified. Article 14 of the

Charter provides for the establishment of an ASEAN human rights body.

ASEAN states have made a rather significant progress in the ratification of

international instruments on human rights. As of March 2008, all countries in ASEANhave ratified CEDAW and the CRC, most have ratified relevant ILO conventions, and

half have ratified the ICCPR and the ICESCR. There are also now four functioning

national human rights institutions (in Indonesia, Malaysia, the Philippines, and

Thailand), plus a number of thematic human rights institutions. ASEANs readiness

and openness to engage with civil society has already seen improvement in the last

few years and ASEAN has been taking positive steps to become a people-centred

organization, though there are still great challenges. While ASEAN has made some


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progress in acknowledging human rights since the early 1990s, the test for ASEAN

will be to living up to their commitments.

Although there have been a few ASEAN declarations and action plans specific to the

advancement of women and protection for children in the last decade, and the two

groups were recognized as groups for special attention in the ASEAN Vision 2020

and the Hanoi Plan of Action, it was truly not until 2004 that concrete steps were

taken by ASEAN to promote the specific rights of women and children. So far, issues

surrounding the well-being of women and children are being carried out under the

ASEAN Functional Cooperation Programme. Womens issues are dealt with by the

ASEAN Committee on Women, but there is no specific body to address the issues of

children. The VAPs inclusion of the clause to establish an ASEAN Commission on

Women and Children laid the most solid foundation for the setting up of a human

rights monitoring body.

The second chapter focuses on ASEANs commitment to the promotion and

protection of the rights of women, with a particular emphasis on the laws, policies and

machineries available at both national and regional levels.As all ASEAN countries

are parties to CEDAW, with some reservations, as well as other international

agreements, they have obligations to respect, protect and fulfill the human rights of

women. Currently, various programs and projects under the ASEAN Functional

Cooperation Programme are geared towards the improvement of the quality of life of

women and children.

Here, the report discusses in detail the legislative measures, and related policy andadministrative measures, launched by each ASEAN state to combat three specific

problems affecting womens human rights, namely discrimination against women,

trafficking in persons, and violence against women. Strategies states have used

include the revision and amendment of existing laws which are discriminatory to

women (such as family and marriage law, citizenship law, land law, and labour law),

and the drafting and enactment of new laws addressing specific problems (sexual

violence, domestic violence and trafficking). The chapter also outlines the CEDAW

Committee recommendations over the past twenty years which have applied to


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ASEAN countries. This includes the recommendations for the establishment of

national machinery, institutions and procedures to monitor the situation of women,

advise on the impact of government policies and implement strategies and measures

to eliminate discrimination against women. This recommendation has been well-

received by ASEAN countries, although the national machinery which exists for

womens advancement has varying structures and degrees of authority in each

country. Only three countries have established a womens ministry to specifically

oversee womens issues. More commonly, a national commission/committee for

women has been established. The UN Committee on CEDAW has commented on the

inadequate institutional structures, the insufficient institutional visibility and decision-

making power, and the lack of human and financial resources in some of these bodies.

Overall the study shows that ASEAN has shown some efforts to comply with

international standards of womens human rights. This is evidenced in the practical

endeavors to deal with specific problems such as human trafficking in women and

girls and violence against women. Unfortunately most ASEAN countries have not

enshrined a clear legal definition of discrimination against women in their domestic

laws as called for by CEDAW. Only a few countries have specifically enacted laws to

eliminate gender discrimination and promote equality between women and men. In

several countries, the principle of non-discrimination and gender equality is enshrined

in constitutional provisions or other related laws, however Vietnam is the only

country with a specific Gender Equality Law which was passed in 2006. It is expected

that similar anti-discrimination and gender equality laws will be enacted in other

countries.

In regards to the trafficking in persons, especially of women and girls, a few ASEAN

countries have enacted specific anti-trafficking legislation. At the regional level, all

ASEAN countries collectively adopted a Declaration Against Trafficking in Persons

Particularly Women and Children in 2004, and six Greater Mekong Sub-region

countries have signed the COMMIT MOU. Regarding violence against women,

several ASEAN governments have passed laws that deal specifically with the issue of

domestic violence. In 2004 ASEAN also collectively adopted the Declaration on the

Elimination of Violence Against Women in the ASEAN Region.


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Yet the study shows that there are still actual and relative gaps in the application of

human rights protection afforded to women in ASEAN countries. Often traditional

ideas and practices which hinder the realization of gender equality and womens

human rights are still strong in certain areas or communities within the region, and the

existence of relevant laws do not necessarily translate into womens enjoyment of

these rights. Nonetheless ASEANs efforts to comply with the international standards

of womens rights can be interpreted as the region being poised to take responsibility

and demonstrate its accountability for the human rights and well-being of women in

the region. The existence of a regional mechanism, such as an ASEAN Commission

on the Promotion and Protection of the Rights of Women and Children, would

immeasurably help to promote womens enjoyment of their human rights.

The third chapterprovides a review of the legal and political commitments to the

human rights of children in ASEAN and ASEAN countries, specifically under the

CRC, to which all are party, and through legislation and national machineries. It notes

that there is no specific ASEAN body which addresses the issues of children.

Although historically children and youth have been mentioned in various official

ASEAN policy documents, the focus has largely been on youth development and

youth employment. Statistics compiled by the ASEAN Secretariat do not even

correspond with the CRC definition of a child. Even though matters regarding youth

in ASEAN are given priority as compared to children, ASEAN has committed to the

development and welfare of children.

The ASEAN Plan of Action for Children, adopted in 1993, is the first ASEANdocument dealing with childrens issues. Its objective was to provide a framework for

promoting regional cooperation for the survival, protection and development of an

ASEAN child, but unfortunately there is no explicit reference to the rights of a

child. In the absence of an institutionalized ASEAN committee/sub-committee for

children, ASEAN designated a Childrens Desk Officer both at ASEAN and at

national levels to coordinate regional programmes on children with relevant ASEAN

bodies and commissions involved in childrens issues. Other ASEAN documents

which reflect the commitment of ASEAN to children include the Hanoi Plan of


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Action (1998), the ASEAN Declaration Against Trafficking in Persons, particularly

Women and Children (2004), and the Declaration on the Commitments for Children

in ASEAN (2001) which was guided by the CRC. The latter document is human-

rights based as it fully incorporates the very essence of the CRC and relevant

documents relating to the rights of the child. In it ASEAN states agreed to, amongst

other commitments, to: 1) promote regional cooperation for the survival,

development, protection and participation of ASEAN children; 2) intensify ASEAN

economic and social development cooperation so as to eradicate the scourges of

poverty, hunger and homelessness, which have a far-reaching impact on children, in

order to promote their welfare and well-being; 3) protect, respect and recognize the

rights of all children, including those of indigenous people, consistent with the

customs and traditions of their respective communities; and 4) recognize and

encourage respect for childrens rights through mutual sharing of information on the

rights of the child by ASEAN members. Unfortunately the implementation of this

Declaration is difficult to trace at the regional level, and implementation was more

clearly seen at the national level. The chapter also notes that while there is an ASEAN

Committee on Youth and an ASEAN Committee on Women, the Sub-Committee on

Children mentioned in the 1993 ASEAN Plan of Action has yet to be established

The report continues by outlining ASEAN members adherence to and

implementation of activities under the CRC and the Optional Protocols. The four

principle pillars enshrined in the CRC are: 1) non-discrimination; 2) the best interest

of the child; 3) child survival, child development and child protection; and 4) child

participation, and by ratifying and acceding, ASEAN countries have agreed to fulfill

obligations to respect, protect and promote the rights of children, thoughimplementation of all pillars remains problematic in most countries. The area of child

survival, protection and child development are the most developed among the four

principles. Although all ASEAN members have committed to abide by the CRC, six

countries have made declarations and/or reservations to certain articles, generally

noting that national laws and/or constitutions remain paramount. The report also

shows that submission of state reports to the CRC Committee constitutes a serious

challenge to ASEAN countries. Most state parties (with very few exceptions) have


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failed to submit their reports in due time. To date Vietnam is the only country to have

submitted reports required for the two Optional Protocols in a timely fashion.

Currently most, if not all, ASEAN countries have tailored, or at least put efforts to

tailor, their national legislation to the principles set forth in the CRC. ASEAN

members have also established bureaucratic and specialized institutions to ensure the

implementation of child protection and welfare. Programmes and policies have

specifically been designed to deal with various childrens rights issues. With the

exception of Brunei and Singapore, all other ASEAN countries have formulated both

broad-based policies and plans of action on child protection, often reflecting some

specific problems of children in a particular country (e.g. Indonesias Jakarta

Declaration on Birth Registration, and Vietnams Prevention and Resolution of the

Problems of Street Children, Sex-abused Children and Children who are overworked

and/or working in poisonous and/or dangerous conditions. Guidelines and plans to

fight child labour are also found in Indonesia, the Philippines, Thailand and Vietnam.

Various national machineries to promote and protect the rights of the child have also

been established in all countries without exception. In general, apart from line

ministries like education and public health, issues pertaining to children are taken care

of by the ministries or departments dealing with social welfare.

The study shows that ASEAN countries have succeeded in putting in place laws,

policies and mechanisms which provide for goods and services for children (such as

food, health care, education and social security) but the implementation differs

according to the level of economic and social development in each ASEAN country.

To varying degrees, ASEAN states have also enacted laws and policies dealing withchild protection, such as combating maltreatment and neglect, the right to be protected

from all forms of exploitation, and ensuring rights of children in the justice system.

Generally problematic across ASEAN is having legislation related to child-friendly

criminal justice and procedures in line with international standards and the CRC.

Although legal and political guarantees and implementing mechanisms for child

protection are in place in all ASEAN states, there are still laws which are not

conducive to protecting the right of the child to life and to development (for e.g. the

low age of criminal responsibility in Brunei Darussalam, Indonesia, Myanmar, The


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Philippines, Singapore and Thailand). Moreover other than The Philippines, there is

little evidence of child participation in decision-making which affects children.

While legislative and policy measures related to the specific rights of children are not

lacking in ASEAN countries, the study shows there is still a difference in

implementation levels from one country to another, and in the non-compliance to

international standards. For example, not all countries use the CRC definition of a

child every human being below the age of 18 years. In all countries, there are

differing definitions of a child for different purposes. Contrary to the CRC, corporal

punishment of children is still legal in some countries (Indonesia, Myanmar and

Singapore). The report suggests that an ASEAN Commission on the Promotion and

Protection of the Rights of Women and Children could act as a clearinghouse and

could seek to facilitate the promotion and protection of the rights of children in the

region.

The chapter which follows compares lessons drawn from an analysis of existing

human rights machineries in Africa, the Americas and Europe. It sets out various

models and considerations that should be taken into account as ASEAN determines

the regional human rights mechanism that is most appropriate for the region. The

report notes that within a very short period, regional human rights mechanisms have

evolved into an essential part of the international institutional structure in the field of

human rights. They provide critical infrastructure in which respect for and

understanding of human rights can flourish. In order to assess the available models,

three existing regional human rights mechanisms the Inter-American System, the

African system, and the European system - are evaluated in order to consider theirstrengths and weaknesses.

The Inter-American system was created in 1945 and is the oldest ever regional

organization. The Organization of American States (OAS) was established and it

adopted a Charter and the American Declaration on the Rights and Duties of Man (the

American Declaration) which are similar in scope to the UDHR. In 1969 the OAS

signed the American Convention on Human Rights (the American Convention) and

then various applicable protocols. The most important for the purposes of this study is


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the Inter-American Convention on the Prevention, Punishment and Eradication of

Violence against Women which is very wide-ranging dealing with all public and

private forms of violence against women: physical, sexual and psychological.

Emphasis is placed on the importance of education to change patterns of patriarchal

domination, often expressed through violent means. States are required to submit

periodic reports as to the implementation of the obligations under the Convention.

The Inter-American Commission on Human Rights was established in 1959 and is

responsible for educating and promoting the human rights and duties under the

Convention. The Commission conducts in-country studies and organizes thematic and

country specific rapporteurships. Complaints can be received from individuals and

State parties. With the creation of the Inter-American Court of Human Rights in 1979,

the Commission can now send unresolved matters for hearing and binding resolution

with respect to states that have ratified the protocol. In effect the Commission is now

the investigatory and diplomatic enforcement arm, and also serves as the gatekeeper

for complaints to proceed to the court for determination. The Commission can also

request a state to adopt precautionary measures to prevent irreparable harm to

persons.

In 1928, the first regional institution was established in the Americas focusing

exclusively on the rights and issues of women the Inter-American Commission of

Women (the CIM). Its functions are wide-ranging, including identifying areas to

foster gender equality, and devising strategies aimed at rectifying discriminatory

practices and procedures. The CIM has the power to carry-out in-country

investigations and comparative studies. It acts as a promotional, research and

advocacy body. The report notes that these strategies have proven crucial in placingwomens rights on the agenda in the region. Nevertheless there are also many

weaknesses inherent in the design, mandate and functioning of the CIM. Its delegates

are government officials so cannot be considered independent, and there are no

specific mandates or expertise that are required. With an overly inclusive mandate and

low budget and resources, the CIM ends up being stretched thin, and at the end of the

day merely acts to study and promote womens rights, rather than protecting and

empowering women to exercise and advance their rights. Bi-annual meetings and lack

of staff make it extremely difficult for the CIM to take on large or complex projects.


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They also lack any enforcement capacity. As of 1994, the Americas now have a

Special Rapporteur on the Rights of Women. The Special Rapporteur can carry out

on-site country visits and produce thematic reports. Childrens rights have not figured

as significant in the human rights systems of the Americas. A special Rapporteur on

Children was appointed in 1999.

The Inter-American System for protecting human rights has grown over the years

from a relatively weak system into one that is more robust. The system commenced

with a Commission which had a relatively weak mandate and no enforcement powers

to one with greater powers, including the right to receive communications from

individuals. The Inter-American court has indeed taken on some important human

rights cases, for e.g. the extrajudicial killing of street children. The region however

continues to face enormous human rights challenges.

The main instrument governing human rights in the African Union is the African

Charter on Human and Peoples Rights (the African Charter). It is distinctive in

three main areas: its preoccupation with peoples rights; its emphasis on

obligations; and its emphasis on the indivisibility of rights. The emphasis on peoples

rights and on obligations results from the desire to make the African Charter

distinctively African. Replacing individual rights with collective rights reflects the

African view that communities rather than individuals are the focal points for

organizing African societies. Individuals have obligations to their community and

society. Meeting social, economic and cultural needs are as important as civil and

political rights, given the level of deprivation and poverty that many Africans endure.

Generally Western countries are hesitant to place social and economic rights on thesame level as civil and political rights.

In recognition of the specific rights and measures needed by women in order to

promote gender equality, the African Union Constitutive Act was passed, and the

African Union adopted the Protocol to the African Charter on Human and Peoples

rights on the Rights of Women in Africa (the African Womens Protocol). The

Protocol covers a comprehensive array of rights for women. The African Commission

has also established a Special Rapporteur on Womens Rights who has a broad


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mandate to study the situation of womens rights in the region, to assist states to ratify

and implement the Protocol, to collaborate with NGOs and to establish guidelines and

recommendations. The African Charter on the Rights and Welfare of the Child (the

African Childrens Charter) was adopted in 1990, and the emphasis is on the best

interests of the child through the provision of services and the protection from abuse.

The African Childrens Charter is overseen by a Committee of Experts on the Rights

and Welfare of the Child, who unfortunately have no enforcement mechanisms,

country reporting requirements, monitoring or similar types of powers.

The African Commission on Human and Peoples Rights (the African Commission)

is the body, comprised of independent human rights experts, which is responsible for

promoting, interpreting, and investigating breaches of the African Charter and the

African Womens Protocol. Though held infrequently, the African Commission has

attempted to make its meetings as public and productive as possible. Some NGOs

have been granted observer status with the African Commission. The Commission

reviews state reports every two to four years and establishes thematic rapporteurs on

specific issues. The study notes that thematic reports are perceived as less threatening

to individual State investigations since they address single issues, involving several of

the member states. The Commission also accepts individual and inter-state complaints

which it investigates and attempts to mediate a settlement. The African Court on

Human and Peoples Rights was established in 2007 but the only direct access is for

States or the Commission. The African Commission is therefore the gatekeeper for

determining which complaints will proceed to the Court. It is too early to comment on

how this system is working in practice, but it does enjoy broad jurisdiction. It will

hear cases concerning the Charter as well as any other relevant internationalinstruments ratified by the State concerned. The court is empowered to make binding

decisions.

The African approach to creating a regional human rights mechanism was a cautious

one. It commenced in 1981 with a relatively weak Charter and even weaker

institutional support. The Commissions mandate and powers were limited, time

allocated to meetings was sporadic and brief, and staff and financial resources were

limited. Nevertheless, with time the African Commissioners, by means of liberal


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interpretations of their role and powers, have been able to cultivate the groundwork

for a more serious respect for human rights in Africa, and slowly building a culture of

human rights in the region. The Commission has been remarkably open to civil

society groups playing a major role in the system, both on reporting on the state of

human rights at the country level, and on specific thematic reports. The inclusion of

NGOs has been beneficial to both parties it has assisted the African Commission to

remain informed on current issues in the region, and also raised the profile and

legitimized the important work being carried out by NGOs in the region. A key

concern of note has been the lack of compliance by states with the recommendations

of the Commission. This has been rectified somewhat by the fact that

recommendations are now considered by the Executive Council (comprising the

Ministers of Foreign Affairs) rather than the African Union Assembly. This has

resulted in a more robust accountability system, bolstered by the establishment of a

court with the power to make binding decisions on the state parties.

Europe has several regional mechanisms for protecting human rights: the Council of

Europe, the European Union, and the Organization for Security and Cooperation in

Europe. The study focuses on the Council of Europe (the Council) as it is the most

longstanding and influential. Once a state is admitted to the Council, any violation of

human rights and fundamental freedoms can result in suspension and/or expulsion.

The governing instrument in the Council is the European Convention on Human

Rights and Fundamental Freedoms (European Convention) which was modeled on the

UDHR and focuses primarily on civil and political rights. There is clear prioritization

and ranking of rights. The European Courts decisions on the Convention are binding

although the Court has no enforcement mechanism. The European Convention doesnot require country reports.

There are only a few specific rights regarding women in the European Convention

addressing gender inequality and discrimination. The Council of Europe has also

undertaken significant work to address the issue of gender equality. The 1979

Committee on the Status of Women evolved into the Committee on Equality between

Women and Men in 1981. The Council of Europe adopted the European Convention

on the Exercise of Childrens Rights in 1996. It includes a broad mandate to include


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children in decision-making processes affecting them. The Convention also

establishes a Standing Committee to assist states in implementation and to strengthen

and promote participation rights of children.

The Council of Europe initially adopted both a court and a commission, but when the

courts decision became binding on all State parties in 1998, the commission was

abolished. The European Court on Human Rights is the oldest, most respected and

effective regional court for human rights. It is comprised of judges from each member

state, and accepts both State and individual complaints and acts similar to an appeal

court. Although decisions are binding, the rulings do not have direct effect on national

law, but damages and costs may be awarded. The European Court may also issue

advisory opinions. A European Commissioner on Human Rights also exists, whose

mandate is primarily educational, promotional and advisory. The European system,

which is the best financed and resourced regional human rights mechanism, is largely

based on a legal system, relying on a court with binding decision-making powers. But

the report notes that courts are not always the best institution for dealing with

systemic or cultural forms of discrimination. The cost and duration of such a

complaint system are out of reach of the poorest, most vulnerable people, who are

most likely to be subjected to human rights abuses and therefore other systems have

been introduced. Although there is no provision for the examination of country

reports in the European Convention, the Council of Europe may request information

from any State

Human rights mechanisms need to evolve within the growing understanding and

acceptance of human rights and be culturally appropriate to a specific region or groupof people. There is no one single solution. Nonetheless, the report highlights that there

are lessons that can be drawn from the experiences of the three regional systems when

ASEAN decides upon the type of mechanism it will have, and the coverage and types

of rights and obligations, and the role of national human rights institutions and civil

society groups. It is very important to point out that all three regions subsequently

established specific bodies to deal with the rights of women, due to a failure of the

original general human rights body to make any significant progress on gender

equality and on levels of violence against women.


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In the ASEAN region, there is an acknowledgement that rights should be indivisible.

As in the African system, obligations could also be imposed in addition to rights.

ASEAN is more likely to create a Commission rather than a court system as exists in

Europe, and this is what was specifically outlined in the VAP. There is strong

indication that there will indeed be both a regional human rights body and a separate

commission dealing with rights of women and children. ASEAN must acknowledge

the importance of appointing or electing commissioners who are independent from

government to ensure legitimacy. Experts in human rights would also ensure

legitimacy and authority, and only allowing one renewal term would assist in ensuring

new ideas and insights. Gender parity in the composition of the mechanism is also

paramount. An important role of a human rights mechanism is also to engage in

education and training on human rights in the region. Of great value would be for the

commission to hold a specific mandate to train certain pivotal state actors, who often

work on the frontlines of human rights abuses (for e.g. the military, police and

corrections staff). The commission should also have the power to investigate and

report on widespread abuses or systematic forms of discrimination against human

rights generally and/or the specific rights of women and children. The commissioners

should also have the ability to undertake thematic investigations. The commission

must also have the authority, backed by ASEAN, to take precautionary measures to

prevent or curtail a serious abuse of human rights. The development of national

human rights institutions should continue to be supported, as human rights obligations

are best implemented at the national level. Regional mechanisms, however play a key

role in capacity-building, educational and training, and creating linkages between

national institutions. The report suggests that continued dialogue between thecommission and civil society must be ensured. Annual workshops with relevant

NGOs could assist in building and elaborating the annual work plan of the

Commission. Adequate financial resources for a commission are necessary, as is an

appropriate funding formula which allows for independence of action. Finally, the

report-writing requirements should not create extra burdens for States and should be

harmonized with other UN reporting requirements.


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This chapter points out that there are a number of influences and discrete

decisions that combine to create appropriate human rights mechanisms for specific

regions. Although some critics suggest that a regional mechanism which focuses on

the rights of women and children is a soft option, this view does a great disservice

to the very important rights that women and children have been granted at the

international level and fails to take into account the terrible abuses that both groups

still suffer. Human rights advocates, NGOs and ASEAN itself should remain

committed to the fact that women and children are the two most vulnerable of the

three main groups in our society. There are also sub-groups that are even more

marginalized and vulnerable than others, and who should be given priority attention.

While ASEAN continues to work on the most appropriate human rights body

enshrined in the Charter, it should consider the Commission on the Promotion and

Protection of the Rights of Women and Children as a regional human rights system

that concentrates on two of the worlds most vulnerable groups. This would be

recognition that most human rights systems have not adequately addressed womens

rights. This is illustrated by the fact that three current regional systems have all had to

set up additional bodies to address the rights of women. The report points out that

because there is great anticipation in the ASEAN region around the advent of its first

human rights mechanism, there will be disappointment and criticism if the chosen

model is not the strongest one. But it will represent much-needed progress in the

region, and it will, undoubtedly continue to be developed and improved.

The last chapter provides the final thoughts on the advantages of a regional human

rights mechanism and value-added of a regional specialized agency. It also attemptsto make recommendations for the establishment of an ASEAN Commission on the

Promotion and Protection of the Rights of Women and Children.There has been some

question as to the value of developing regional human rights mechanisms. Despite the

legitimacy of these concerns, the report shows that they should not overshadow the

real benefits derived from establishing a regional human rights mechanism. Regional

human rights mechanisms play a crucial role in assisting regions to create a culture of

human rights for their people and especially for vulnerable groups. This unique role

cannot be accomplished by national human rights institutions or universal


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mechanisms. National human rights mechanisms, although important, often have too

narrow a mandate to investigate broad-ranging human rights abuses and

infringements, and rarely take into account how recommendations/remedies may

affect a bordering country. They also may be subject to the whims of government in

power. Universal systems, such as UN human rights mechanisms, are generally too

broad and diverse in their concern and scope to understand or effectively address

regional nuances in language, culture, institutions and ethnicity. A regional

mechanism is best placed to understand the unique tensions and conflicts in the

region, and can effectively place recommendations within the appropriate economic,

social, political and cultural context within a region. A regional mechanism enables

neighboring countries to provide support and assistance to each other. It also may be

more palatable for States to take advice from neighboring States. These regional

mechanisms can provide technical and moral support to national institutions. National

and regional institutions can interrelate in a mutually reinforcing manner. A regional

human rights mechanism also furthers self-determination of the region, since it uses

reports derived from that region and not on external commentaries. It will increase the

visibility and credibility of ASEAN in the international community and make an

important contribution to peace and security in the Southeast Asian region.

This chapter responds to the questions of whether a specialized body for women and

children is necessary. The value-added of an ASEAN commission on the rights of

women and children is that it will nurture regional responses to issues pertaining to

their rights, and lift the standards of states behavior in these areas. For countries that

do not have an existing human rights mechanism, the commission can serve as a

pragmatic entry point to address human rights concerns. It can also allow greateraccess for recourse for human rights violations, and serve to strengthen ASEANs

commitment to and proactive implementation of CEDAW and the CRC. A trans-

border institution can also assist in designing and applying transnational measures to

fight crimes like trafficking which predominantly affect women and children. The

Commission would help to bridge the gap between national and international

standards, and in reporting obligations. The creation of such specialized commission

would be a clear indicator of the political will and concrete commitment of regional

ASEAN leaders to show the importance of the promotion and protection of the rights


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of women and children in the region. The current climate is conducive to establishing

such commission, and it is now time for ASEAN leaders to transform the many

existing policy documents and statements into a legally binding instrument with a

monitoring body. The key function of the proposed commission will be not just in

creating programs or cooperation, but be in creating a legal framework in place,

creating an enabling environment for a rights-based approach.

The establishment of any human rights mechanism should ideally be based on the

Principles Relating to the States and Functioning of National Institutions for the

Protection and Promotion of Human Rights (the Paris Principles) with an emphasis

on: independence from government, a pluralistic composition and representativeness;

having broad mandates with adequate powers, and sufficient resources and

accessibility. It should have a wide spectrum of functions and obligations to respect,

protect and fulfill prescribed rights. It should also have a mandate to assess the human

rights situation in the region, and where appropriate, the adjudication and enforcement

of human rights laws. In order to be effective such mechanism should have powers to

educate, recommend, mediate, adjudicate, enforce and even censure and provide

remedies. It must display high standards of competence and performance, be impartial

and independent, approachable and open, and be accountable to ASEAN states,

ASEAN and its stakeholders. Women and children must be able to participate actively

throughout the process to ensure their views and concerns are heard.

An ASEAN Commission on the Promotion and Protection on the Rights of Women

and Children should be an inter-governmental and independent body with an

established legal status. The drafting process should be inclusive. The draft shouldaim to be ready by 2008 and take effect by 2009. The rights of women and children to

be covered must not be lower than the international standards covered by CEDAW

and the CRC. The Commission should be gender-balanced and have representation

from all ASEAN members, and the principle of transparency, inclusiveness and civil

societys participation should be reflected and practiced throughout the selection

process. The mandate of the Commission should be to: assess/review (monitor) the

human rights situation in the region; to access affected vulnerable groups; to advise

on needed actions to prevent and remedy situations, and to protect rights; to act where


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national remedies have been exhausted and where states have agreed to become party

to the ASEAN commission; and to advocate/cooperate with key partners/stakeholders

to protect those affected vulnerable groups. The Commission must also be

accountable to all stakeholders. The promotional mandate should cover the conduct of

activities that directly contribute to the empowerment of women and children through

awareness-raising, skills training, capacity-building, consultations, dialogues, research

studies, case studies and the sharing of best practices etc. The protective mandate

should be limited to an advisory or recommendatory function, yet open to study

situations of widespread and gross violations of womens and childrens rights in the

region, request the submission of reports from states, and issue (non-binding)

recommendations. Accredited civil society organizations should be allowed to

participate in the establishment and functioning of the Commission, and shadow

reports should be encouraged. The mandate of the Commission should follow existing

guiding principles of ASEAN, namely the respect for state sovereignty, non-

interference in internal affairs and consensus-making, but this should not hinder the

effective functioning of the Commission. While not challenging government, the

Commission should also not be used as window-dressing to raise ASEANs image

on human rights, without the necessary accompanying action. The funding of the

Commission should come from primarily from the contribution of ASEAN members,

with some external support.

The report highlights that there are important principles to be kept in mind while

developing such an ASEAN Commission. The commission should be a mechanism

a means to an end. It should be informed by international standards, while drawing

from the wisdom of the ASEAN region. The commission should be non-discriminatory, covering both nationals and non-nationals, uphold the universality,

indivisibility and interdependence of all human rights, and uphold all rights (and

obligations) consistent with international law.

Such a mechanism for the rights of women and children is being viewed as an entry

point to engaging ASEAN in human rights promotion and protection with the goal of

the establishment of an appropriate human rights mechanism with broad mandates.

While there is concern within ASEAN that human rights are still a sensitive topic,


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ASEAN governments have shown comfort in dealing with issues of the rights of

women and children. It is still to be decided whether ASEAN will create a mechanism

which would be merely promotional, or a protective entity (with or without an

investigative mandate and/or legally binding decisions), or a hybrid of both. Ideally it

would have both a promotional and protection mandate, as provided in the VAP.

Perhaps it is necessary that ASEAN states be encouraged to join upon readiness

with a fixed time frame to bring all on board.

There are already policies, programmes and institutions relating to the promotion and

protection of the rights of women and children in existence of ASEAN and any new

mechanism must build on what already exists. It is also of immense importance for

ASEAN to engage civil society in the process of the establishment of an ASEAN

commission. Dialogues and means of communication must be established between

governments and civil society, and it is, of course, essential to include women and

children themselves. The contextual particularities (socio-cultural, political and

economic) of each ASEAN state must also be taken into consideration. Concrete

measures and programmes should be formulated to bridge existing gaps. The sharing

of national experiences and best practices and mutual learning is highly

recommended. The regional mechanism should not only link with existing national

machineries but also promote the creation of national human rights institutions to deal

specifically with women and childrens rights. The development of easy and

inexpensive ways to resolve human rights disputes will also be necessary.

The chapter concludes that as the VAP draws closer to completion, it is now

necessary to accelerate the process of creating a Commission, and it should be seen asboth an end it itself, as well as a means to something greater. The proposed

Commission has the potential of being an incredibly powerful body that focuses

specifically on the concerns of women and children. Rather than wait for the perfect

model for the mechanism, the time is ripe right now to move forward, even if it may

be in incremental steps.


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CHAPTER I

Towards an ASEAN Commission on the Promotion and Protection of

the Rights of Women and Children

Introduction : ASEAN and Human Rights in Key Documents

ASEAN was established in 1967 as a political and economic entity with seven

objectives as stated in the ASEAN Declaration of 1967 (Declaration). The first two

were to: a) accelerate economic growth, social progress and cultural development; and

b) to promote regional peace and stability through abiding respect for justice and therule of law in the relationship among countries of the region and adherence to the

principles of the United Nations Charter (UN Charter). Although the term human

rights was not explicitly used in the Declaration, by affirming adherence to the

principles of the UN Charter, the five founding members1 of ASEAN have inevitably

accepted the purposes and principles set forth therein. Art.1 para.3 of the UN Charter

stipulates that states resolve to achieve international co-operation in solving

international problems of an economic, social, cultural or humanitarian character, and

in promoting and encouraging respect for human rights and for fundamental freedoms

for all without discrimination as to race, sex, language, or religion. Art.55 further

reiterates that ...the United Nations shall promotec) universal respect for, and

observance of, human rights and fundamental freedoms for all without distinction as

to race, sex, language and religion.

However, if one examines ASEANs core documents such as the Bangkok

Declaration, Treaty of Amity and Cooperation of 1976 (TAC) and many others, there

are few references to the term human rights. Although ASEAN does not have

specific legal documents on human rights, the term has been mentioned in a range of

non-legal binding documents such as joint communiqus and joint

declarations/statements both among its members and with dialogue partners. The term

human rights was used for the first time in the 1978 Joint Declaration of ASEAN-

EC Ministerial Meeting, where it was stated that ASEAN agreed that cooperation

1Indonesia, Malaysia, The Philippines, Singapore and Thailand.


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Towards an ASEAN Commission on the Promotionand Protection of the Rights of Women and Children ChapterI

with the EC will serve their people by promoting social justice and human rights.2

Para.7 of the 1991 Joint Declaration notes that: The Ministers were of the view that

international cooperation to promote and respect for human rights and fundamental

freedoms for all without distinction as to race, sex and religion should be enhanced. 3

It is commonly acknowledged that one of the principal conditions for cooperation

with European Community is adherence to human rights and fundamental freedoms.

In the 1990s there have been some positive changes pertaining to human rights within

ASEAN. A number of official statements containing the term human rights have been

in circulation. In 1991, ASEAN affirmed its original position in regards to human

rights in its joint communiqu stating that: They agreed that while human rights are

universal in character, implementation in the national context should remain within

the competence and responsibility of each country, having regard for the complex

variety of economic, social and cultural realities. They emphasized that neither the

international application of human rights be narrow and selective nor should it violate

the sovereignty of nations.4 Although this 1991 joint communiqu demonstrates that

ASEAN still guards against certain concepts of human rights, the universal nature of

human rights is more or less accepted by ASEAN leaders (with certain reservations).

This same position was repeated again in the Joint Communique of the 25 th ASEAN

Ministerial Meeting held in Manila in 1992.5

ASEAN made a marked change in its position on human rights in 1993. For the first

time in ASEAN history, a separate section on human rights was incorporated in their

joint communiqu. The joint communique of the 26th ASEAN-AMM held in

Singapore in July 1993, just about a month after the Vienna World Conference,contained three elaborated paragraphs including: ASEAN recognizes that human

rights are interrelated and indivisible, it affirms its commitment to and respect for

human rights and fundamental freedoms as set out in the Vienna Declaration. It

agreed that ASEAN should consider the establishment of an appropriate regional

2 Joint Declaration of the 9th ASEAN-EC Ministerial Meeting, 21 November, 1978, Brussels, Belgium.3 Joint Declaration of the 9th ASEAN-EC Ministerial Meeting, 30-31 May, 1991, Luxembourg.4

Joint Communique of the 24th

ASEAN Ministerial Meeting, 19-20 July, 1991, Kuala Lumpur.5 See para. 18 of Joint Communique of the 25th ASEAN Ministerial Meeting, 21-22 July, 1992, Manila,

Philippines.


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mechanism on human rights.6 The scholar Dino Patti Djala commented that

ASEANs declaration of its commitment to the Vienna Declaration on Human Rights

by including a human rights section within a lengthy AMM joint communiqu was

perhaps more in accordance with the global discourse rather than strong affirmation of

its human rights policy. This comment proved to be true because for the following

five years, any section on human rights and even the term human rights disappeared

from any ASEAN joint communiqu. Only in 1998 when the world commemorated

the 50th anniversary of UDHR, human rights reappeared in two paragraphs of the

AMM joint communiqu, one noting the establishment of the Working Group for an

ASEAN Human Rights Mechanism, and another recognizing the importance of

international conventions and declarations of human rights, and the rights of women

and children in particular.

Just one year earlier in 1997, the ASEAN Vision 2020 was adopted in Kuala Lumpur

emphasizing a community of caring societies. The ASEAN sees vibrant and open

societies consistent with their respective national identities, where all people enjoy

equitable access to opportunities for total human development, regardless of gender,

race, religion, language, or social and cultural background. ASEAN envisions South-

East Asian (SEA) nations being governed with the consent and greater participation of

the people, with its focus on the welfare and dignity of the human person and the

good of community. Though this policy statement did not directly mention human

rights, many human rights elements were included such as the principle of non-

discrimination, and democratic societies where the will and participation of people

counted. At the same time, it also mentioned national identities and the focus on

welfare and dignity of the human person and the good of community.

Under the ASEAN Vision 2020, a series of road maps including the Hanoi Plan of

Action was adopted for the implementation for a period of 5 years from 1999-2004.

The Hanoi Plan of Action listed activities on human rights to be achieved within a

given time frame. These activities included the implementation of the CEDAW and

CRC and the establishment of a center for the exchange of human rights information

within ASEAN. However, according to an October 2004 assessment study report on

6Joint Communique of the 26

thASEAN Ministerial Meeting, 23-24 July, 1993, Singapore, para 16-18.


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the progress of regional integration towards ASEAN Vision 2020, only about 2/3 of

the activities embodied in the Hanoi Plan of Action had been accomplished as of mid-

2004.

In its latest policy document, the Vientiane Action Program (VAP) adopted in

Vientiane in November 2004, ASEAN has again put forward a much more concrete

agenda on human rights. Under the program areas and measures for political

development of the ASEAN Security Community, ASEAN has committed to promote

human rights through the:

completion of a stock-taking of existing human rights mechanisms andequivalent bodies, including sectoral bodies promoting the rights of

women and children;

formulation and adoption of an MOU to establish a network amongexisting human rights mechanisms;

formulation of a work program for the network; promotion of education and public awareness on human rights; establishment of a network of cooperation among existing human rights

mechanisms;

elaboration of an ASEAN instrument on the protection of the rights ofmigrant workers;

establishment of an ASEAN Commission on the promotion and protectionof the rights of women and children.

It should be noted that the language used in this item is very strong (words such as

completion, formulation, elaboration and especially establishment). ASEAN

moved away from using the term consider to a more concrete list of commitments.

The human rights agenda of ASEAN covers both the promotion of human rights,

human rights awareness and protection activities, the establishment of an ASEAN

commission on the promotion and protection of the rights of women and children, and

designing an ASEAN instrument on the protection of rights of migrant workers.

ASEAN has committed in the VAP to come up with a legally binding instrument and

mechanisms with legal binding power.


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Three out of seven items under this human rights section pertain to the networking

among existing human rights institutions. This could be interpreted to cover not only

national human rights institutions, but also other thematic or specialized institutions

dealing with specific issues such as trafficking, violence against women and/or

specific targets, for instance on women and children.

The tireless efforts and initiatives made by the Working Group for an ASEAN Human

Rights Mechanism since 1996 must be given recognition. The accelerated progress

made by ASEAN members in the field of human rights (at least in the official

documents) has been remarkable and the VAP is one of the most concrete examples

of such progress.

ASEAN has also made notable progress in the ratification of international human

rights instruments. Table 1 below shows that before 1993 some SEA countries such

as Brunei Darussalam and Malaysia had not ratified any international human rights

treaties. As of 2008, all ASEAN countries had ratified the Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW) and the

Convention on the Rights of the Child (CRC), and half of all the ASEAN members

had ratified the ICCPR and ICESCR (including Lao PDR who has signed but not yet

ratified).


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Table 1. Status of Ratification of Human Rights Instruments in ASEAN

(as of March 2008)

Country BruneiDarussalam

Cambodia Indonesia Lao PDR Malaysia Myanmar Philippines Singapore Thailand Vietnam

Adm itt ed to

ASEAN

08Jan84 30Apr99 8Aug67 23Jul97 8Aug67 23Jul97 8Aug67 8Aug67 8Aug67 28Jul95

ICESCR - 26May92 a 23Feb06 a 13Sep07 - - 7Jun74 - 5Sep99 a 24Sep82 a

ICCPR - 26May92 a 23Feb06 a 7Dec00 s - - 23Oct86 - 29Oct96 a 24Dec82 aICCPR-OP1 - 27Sep04 s - - - - 22Aug89 - - -

ICCPR-OP2 - - - - - - 20Nov07 - - -

ICERD - 28Nov83 25Jun99 a 24Feb74 a - - 15Sep67 - 28Jan03 a 9Jun82 a

CEDAW 23May06 a 15Oct92 a 13Sep84 14Aug81 5Jul95 a 22Jul97 a 5Aug81 5Oct95 a 9Aug85 a 17Feb82

OPCEDAW - 11Nov01 s 28Feb00 s - - - 12Nov03 - 14Jun00 -

CAT - 15Oct92 a 28Oct98 - - - 18Jun86 a - 2Oct07 a -

OPCAT - 30Mar07 - - - - - - - -

CRC 27Dec95 a 15Oct92 a 5Sep90 8May91 a 15Feb95 a 15Jul91 a 21Aug90 5Oct95 a 27Mar92 a 28Feb90

OP-CRC- AC - 16Jul04 24Sep01 s 20Sep06 a - - 26Aug03 7Sep00 s 27Feb06a 20Dec01

OP-CRC-SC 21Nov06 a 30Jun02 24Sep01 s 20Sep06a - - 28May02 - 11Jan06 a 20Dec01

ICRMW - 27Sep04 s 22Sep04 s - - - 5Jul95 - - -

Convention

on the Rights

of Persons

with

Disabilities7

18Dec07 s 1Oct07 s 30Mar07 s - - - - - 30Mar07 s 22Oct07 s

Optional

Protocol to

Convention

on the Rights

of Persons

with

Disabilities

- 1Oct2007 s - - - - - - - -

Sources: Compilation based on the status of ratifications of human rights instrument, in the Office ofthe United Nations High Commissioner for Human Rights. www.ohchr.org. visited on March 30, 2008

The progress made in terms of ratifications could be seen also in the commitment to

ILO Conventions. All countries, except for Brunei Darussalam have ratified a number

of ILO Conventions, Cambodia, Indonesia and the Philippines, in particular. The

Table 2 below shows that ILO Conventions relating to child labour No.138 and

No.182 were ratified by most of ASEAN countries.

7 Malaysia have signed this Convention on 8 April 2008 and the Philippines have ratified on 15 April

2008


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Table 2. ASEAN States Ratifications of the ILO Conventions

(as of March 2008)

Freedom of association

and collective bargaining

Elimination of forced and

compulsory labour

Elimination of

discrimination in respectof employment and

occupation

Abolition of child labour

Country Conv. 87 Conv. 98 Conv. 29 Conv. 105 Conv. 100 Conv. 111 Conv. 138 Conv. 182

BruneiDarussalam

Cambodia 23/08/1999 23/08/1999 24/02/1969 23/08/1999 23/08/1999 23/08/1999 23/08/1999 14/03/2006

Indonesia 09/06/1998 15/07/1957 12/06/1950 07/06/1999 11/08/1958 07/06/1999 07/06/1999 28/03/2000

LaoPeople'sDemocraticRepublic

23/01/1964 13/06/2005 13/06/2005

Malaysia 05/06/1961 11/11/1957 13/10/1958den.:

10/01/1990

09/09/1997 09/09/1997 10/11/2000

Myanmar 04/03/1955 04/03/1955

Philippines 29/12/1953 29/12/1953 15/07/2005 17/11/1960 29/12/1953 17/11/1960 04/06/1998 28/11/2000

Singapore 25/10/1965 25/10/1965 25/10/1965den.:

19/04/1979

30/05/2002 07/11/2005 14/06/2001

Thailand 26/02/1969 02/12/1969 08/02/1999 11/05/2004 16/02/2001

Viet Nam 05/03/2007 07/10/1997 07/10/1997 24/06/2003 19/12/2000

Total of 10 4 5 9 6 7 4 8 8

Note: den. mean Convention denounced

C29 Forced Labour Convention C87 - Freedom of Association and Protection of the Right to Organize Convention C98 - Right to Organize and Collective Bargaining Convention C100 - Equal Remuneration Convention C105 Abolition of Forced Labour C111 Discrimination in Respect to Employment and Occupation C138 Minimum Age Convention C182 Worst forms of Child Labour Convention

Sources: Compilation based on the status of ratifications of the ILO Convention (Fundamental humanrights), in the International Labour Organization. www.ilo.org. visited on March 30, 2008

A further positive development is the establishment of the national human rights

institutions. Before 1993, there were only two national human rights commissions in

SEA in the Philippines and Indonesia. Now there are four, including the additional

two in Malaysia and Thailand. The Cambodian government has committed to

establish an independent national human rights institution. Apart from the national

human rights commissions which act as individual bodies with mandates to monitor


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