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FINAL AHRD Draft Proposed Provisions_by IHR_19 June 2012

FINAL AHRD Draft Proposed Provisions_by IHR_19 June 2012

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Published by Alain B. Baguisi

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Published by: Alain B. Baguisi on Jun 19, 2012
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Submission to the ASEAN Intergovernmental Commission on Human RightsOn the ASEAN Human Rights Declaration19 June 2012As part of our intervention and submissions during the Second Consultation on the ASEANHuman Rights Declaration last June 15, 2012, Rockwell Center, Makati City, please find below our  proposed provisions to be considered as normative content of the ASEAN Human Rights Declaration:
A. On the Right to Property vis-a-vis Right to Intellectual Property,
Proposed Provision:1.Every person has a right to own such private property as meets the essential needs odecent living and helps to maintain the dignity of the individual and of the home. The use of  property may be regulated by law in so far as is necessary for the public interest.
2.Every person has the right freely to participate in the cultural life of the community, toenjoy the arts and to share in scientific advancement and its benefits.
3.Every person shall have the right to enjoy the fruits of his scientific, literary, artistic or technical production and the right to protect the moral and material interests stemming therefrom,
 provided that such production is not contrary to the enjoyment of public goods necessary for therealization of other human rights of every person or the public.4.Intellectual property is a social product and has a social function. States parties should prevent the use of scientific and technical progress for purposes contrary to human rights anddignity, including the rights to life, health and privacy.Explanation:Intellectual property rights are first and foremost means by which States seek to provideincentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific,literary and artistic productions for the benefit of society as a whole.Intellectual property protections should not result in the weakening of the enjoyment of the humanrights to food, health and education, as well as in taking part in cultural life and in enjoying the benefitsof scientific progress and its applications.To strike an adequate balance between the effective protection of the moral and material interestsof authors and States parties’ obligations in relation to the rights to food, health and education, as well asthe rights to take part in cultural life and to enjoy the benefits of scientific progress and its applications,
Copied from Art. 17, Charter of Fundamental Rights of the European Union.
Copied from Art. 15, (a) & (b), International Covenant on Economic, Social and Cultural Rights.
Copied from Art. 16, Cairo Declaration on Human Rights in Islam.
or any other right recognized in the Covenant.The vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples should also be protected. States parties should adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which are often expressionsof their cultural heritage and traditional knowledge. States parties should respect the principle of free, prior and informed consent of the indigenous authors concerned and the oral or other customary forms of transmission of scientific, literary or artistic production; where appropriate, they should provide for thecollective administration by indigenous peoples of the benefits derived from their productions.
B. On the Right to Peace,
Proposed Provision:1.Individuals and all peoples have a sacred right to peace. The right includes freedom fromall forms of aggression, tyranny, oppression and violence, including during internal armedconflicts, as defined and governed under international humanitarian law. States have obligationsto undertake all measures to eliminate inequality, exclusion and poverty, as they generatestructural violence, which is incompatible with peace.2.The right to peace imposes upon the member-States the fundamental obligation toimplement and realize it, which includes the duty to renounce and eradicate war, the primary andessential condition for the material well-being, development, security, stability, sustainedeconomic growth, shared prosperity and social progress of ASEAN countries, for the fullimplementation of the rights and fundamental human freedoms of all persons within ASEAN, andavoidance of resort to rebellion. States must undertake all measure to ensure the realization of theright to peace, which shall include the enactment of policies directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in internationalrelations and the settlement of international disputes by peaceful means.3.Everyone has the right to demand from his or her Government the effective observance othe norms of international law, including international human rights law and internationalhumanitarian law.4.Regional as well as international cooperation must be undertaken to assist in theimplementation and realization of the right of peoples to peace through the adoption of appropriate measures at the national, regional and international levels.
5.The right to peace also imposes upon the State a duty to ground conflict resolution on ruleof law. Both State and civil society actors should play an active role in the mediation of conflicts,especially in conflicts relating to religion and/or ethnicity.Explanation:Individuals and peoples have a right to peace. States shall abide by the legal obligation to
Para. 1 – 3 are based on the Declaration on the Right of Peoples to Peace, General Assembly resolution 39/11 of 12 November 1984.
renounce the use or threat of use of force in international relations. All individuals have the right to live in peace so that they can develop fully all their capacities, physical, intellectual, moral and spiritual, without being the target of any kind of violence.All States, in accordance with the principles of the Charter of the United Nations, shall use peaceful means to settle any dispute to which they are parties. All States shall promote the establishment,maintenance and strengthening of international peace in an international system based on respect for the principles enshrined in the Charter and the promotion of all human rights and fundamental freedoms,including the right to development and the right of peoples to self-determination.States should cooperate in all necessary fields in order to achieve the realization of the right to peace, in particular by implementing their existing commitments to promote and provide increasedresources to international cooperation for development.To strengthen international rule of law, allStates shall strive to support international justice applicable to all States equally and to prosecute thecrime of genocide, crimes against humanity, war crimes and the crime of aggression.Everyone has the right to denounce any event that threatens or violates the right to peace, and to participate freely in peaceful political, social and cultural activities or initiatives for the defence and promotion of the right to peace, without interference by Governments or the private sector.C. We propose to include a provision
on the Right to Access to Justice
,Proposed Provision:1.Every person has a right to effective access to justice in case of violation of human rightson an equal basis with others, before the courts, and other tribunals, regardless of the nature andstage of the proceedings, including before other State instrumentalities, agencies or officials,where rights and obligations are determined in a suit at law, without under delay. The rightincludes the right of every person, individually or in association with others, to equal andeffective protection of the law, equality at arms, legal assistance, meaningful participation in any proceeding, provision of adequate, effective and enforceable remedies as appropriate responses tohuman rights violations and guarantee that States shall undertake all measures to grant to thevictims thereof all forms and venues of redress.2.In order to help to ensure effective and enforceable access to justice, States shall promoteappropriate training for all those working in the field of administration of justice. The right toaccess to justice imposes upon the State the obligation to conduct a prompt and impartialinvestigation or ensure that an inquiry takes place whenever there is reasonable ground to believethat a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.
 Access to justice and fair treatment 
3.Victims should be treated with compassion and respect for their dignity. They are entitled
This provision and succeeding provisions, ex. Para. 17 & 18, were taken from the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

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