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Asean waters down human rights draft: leaked document

(Mizzima) – A leaked draft of the Asean Human Rights Declaration obtained by Mizzima has lifted the veil of secrecy surrounding the centerpiece of the human rights agenda of the Association of Southeast Asian States (Asean).

A working draft, written in January at the time of the first meeting of Asean Intergovernmental Commission on Human Rights on the Asean Human Rights Declaration held in Siem Reap, Cambodia, includes detailed comments by officials from Laos, Malaysia, Vietnam, Thailand, Indonesia, the Philippines and Singapore.  

The draft revealed a number of the Asean-member states – most notably Laos – are seeking to water down the declaration by proposing wording that would limit its scope and application, while officials from Thailand, Indonesia and the Philippines, providing comment as a block of nations, proposed more progressive wording.

Laos has arguably taken the most hardl-line stance, placing conditions on a number of sections in the draft declaration.

Commenting on the duties and responsibilities of the Asean member States, Laos said the “realization of universal human rights” must be in the context of “regional and national particularities” such as political, economic, social, cultural, historical and religious backgrounds.

Laos’ position is contrary to the more expansive wording drafted by the Asean Secretariat that “…it is the duty of member states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”

Laos is also proposing the inclusion of a “national security” and “public morality” trigger to override claims to universal human rights and freedoms, perhaps fearful of an erosion of national security and moral principles.

“The exclusive insistence on rights can result in conflict, division, and endless dispute and can lead to lawlessness and chaos,” Laos said.

While the secretariat’s original wording acknowledges rights shall be exercised with “due regard” to national security and contains no mention of “public morality,” Laos’ rewording would extend the reach of limitations, potentially enabling a member state to claim exemption from the Declaration where national security, public morality and other issues enacted in national laws permit.

“The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose... to meet the just requirements of national security, public order, public health and public morality and the general welfare of the peoples in a democratic society,” Laos said.

Some member states appear to have accepted the inclusion of “public morality” as a limitation.

In other comments, Laos proposed limiting “the right to practice one’s religion or belief” with the condition that “advocacy or dissemination of religions or beliefs shall be in compliance with national law of each Asean Member State.”

Both Laos and Vietnam held reservations about the right to freedom of opinion and expression and to freely receive information. Laos added the qualification, “Freedom of expression carries with it special duty not to defame the reputation of others and incite hatred, discrimination, war, social division and violence.”

Laos is the most vigorous advocate for cementing state rights above claims to universal human rights and freedoms, with Malaysia and Vietnam making supporting comments.

“Each Asean member state has the right to pursue its own economic and social development and freely choose it s own political system which suits the historical culture and social realities and national values of each nation, based on the aspirations of its people without external interference or pressure in whatsoever forms,” Laos said.

And in a clear statement designed to shield trade and investment from the scope of the Declaration, Laos said, “Human rights should not be used as conditionality for extending official development assistance to, engage in trade with, and making investment in Asean-member states.”

Burma did not directly comment on the draft but did support the position of Laos “not to mention international binding instruments in this political declaration” and agreed with Laos which had  “reservations in regards to the use of the term[s] ‘minority groups’ and ‘indigenous peoples’.”

The definition of who holds rights and freedoms under the Declaration appears to be contentious, with a number of member states providing views.

The draft stated, “Everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions, national or social origin, sexual identity, property, birth, disability or other status.”

However, socially conservative Brunei and Malaysia are opposed to the inclusion of “sexual identity” and Malaysia raised concerns about the definitions of “sex” and “other status” seeking to ensure they are “determined by Asean common values in the spirit of unity in diversity,” and not based on other internationally accepted definitions.

Thailand proposed changing “sexual identity” to the more progressive term “sexual orientation” to reflect the language of the Committee on the Elimination of Discrimination against Women (CEDAW). Thailand also proposed that the phrase “gender identity” be included.

Of the other member states’ comments, Singapore took a relatively cautious approach, stating it has reservations about a number of issues notably that, “Primary education shall be compulsory and free,” and “A person’s nationality cannot be revoked or otherwise deprived if it will result in the person being stateless.”

Vietnam questioned the use of the word “freely” in a citizen’s right to participate freely in government and proposed removing “torture, enforced disappearance or other serious human rights violations” from the list of persecutions preventing a State from extraditing an asylum seeker.

The current draft also defines when the death penalty can be used. However, some member states oppose its inclusion.
The raft of changes proposed in the leaked draft will be a cause for concern among many civil society groups.

Worried by the possibility the declaration may fall below international standards under the guise of the “Asean way,” civil society’s position paper on the declaration submitted in June 2011 by the Solidarity for Asian People’s Advocacy Task Force on ASEAN and Human Rights (SAPA TF-AHR), a coalition of more than 70 nongovernmental organizations in Southeast, said:

“Under no circumstances may the standards for human rights in the AHRD fall below those provided by universal human rights instruments. Instead, ASEAN as a regional association should aspire to commit itself to higher standards of human rights and contribute to the advancement of the promotion and protection of human rights globally.”

Last month, Amnesty International criticized the Asean panel charged with drafting a human rights code saying it is working largely in secrecy and not consulting with human rights’ NGOs.

Asean officials say the Asean grouping hopes to finalize the draft of the rights charter in 2012. The final draft must be passed by consensus.