Briefing Note: ASEAN Human Rights Systems

AICHR  On October 23, 2009, ASEAN established a human rights commission called the ASEAN Intergovernmental Commission on Human Rights (AICHR). The launching of AICHR marked the ‘maximum consensus’ of ASEAN Foreign Ministers over one and a half years debating the content of the Terms of Reference (TOR).  The creation of AICHR was based on Article 14 of the ASEAN Charter. AICHR is an inter-governmental, advisory and consultative body, which holds consensus as decision-making. The TOR is designed with the ‘promotion first, protection later’ formula. AICHR has no investigative, evaluative, or enforcement powers and any early warning mechanisms. Civil society was disappointed with the lower standards of the TOR for a human rights commission. However, think tanks believed that AICHR might offer a ‘reasonable prospect’ in the future. AICHR consists of ten members from ASEAN Member States,of which two were women (from Thailand and the Philippines). They represented different backgrounds: diplomats, deputy foreign minister, lawyers, former judge, lecture and civil society member. They work in AICHR for a period of three years (2009-2012). Only Indonesia and Thailand conducted a democratic selection process for their representatives to AICHR. OnNovember 18, 2012, ASEAN adopted the controversial ASEAN Human Rights Declaration (AHRD) along with the Phnom Penh Statement.AHRD is composed of a (I) Preamble, (II) General Principles, (III) Civil and Political Rights, (IV) Economic, Social and Cultural Rights, (V) Right to Peace, (VI) Right to Development and (VII) Cooperation on the Promotion and Protection of Human Rights. AHRD has three spoiled Articles: (a) Article 6: the balance between rights and responsibilities, (b) Article 7: national and regional particularities, (c) Article 8: limitation of rights, and the erasure of the freedom of association in Article 24. Nevertheless, paragraph 3 of the Phnom Penh Statement, stated the following:“REAFFIRM further our commitment to ensure that the implementation of the AHRD be in accordance with our commitment with the Charter of the United Nations, the Universal Declaration of Human Rights, The Vienna Declaration and its Programme of Action, and other international human rights instruments to which ASEAN Member States are parties, as well as relevant ASEAN declarations and instruments pertaining to human rights”. Civil society’s position toward AHRD has been divided into a) a full rejection and disassociation with anything related to the Declaration, and b) disappointment but the willingness to continue to engage with AICHR as away to strengthen the commission. Within the last three years, AICHR has received two requests to provide a human rights opinion over the mandatory test of HIV that was tabled by AHMM (ASEAN

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Health Minister Meeting) and on the human rights curriculum for the undergraduate level in the universities in ASEAN regions.  AICHR has conducted a number of dialogues with the European system in May 2011, which are among others: the European Union External Action (EEAS) on Human Rights policy, European Parliament Sub Committee on Human Rights, European Fundamental Rights Agency (Vienna), Council of Europe, Commissioner on Human Rights of Council of Europe, Registrar of European Human Rights Court, OSCE, Special Rapporteur of OSCE on freedom of media and on Trafficking in persons. AICHR also met with Mdm. Navanethem Pillay, theUN High Commissioner for Human Rightsin December 2011. For the last three years, AICHR has adopted its five-year plan of actions, the Guidelines of Operations, the Rules of Procedures for AICHR Funds, the TOR of AICHR’s Drafting Group for the ASEAN Human Rights Declaration, the TOR of the baseline study on Corporate Social Responsibility and Human Rights and theTOR on the study related to migration and human rights. During the 20thASEAN Summit, in 2012,the need of AICHR was noted for the support of a dedicated unit within the ASEAN Secretariat. Currently AICHR has no dedicated secretariat. A Division that deals with AIPA, ASEAN Foundation, AICHR and Other ASEAN Associated Entities under the Community and Corporate Affairs in the ASEAN Secretariat has supported the work of AICHR since its establishment. AICHR funding comes from Member State’s contribution of USD 20,000 to its annual funds. AICHR cannot receive funds from external partners for the purpose of human rights protection. AICHR has new a composition of representatives (2013-2015), consisting of the same mix-bag but now has three women (Vietnam, the Philippines, Singapore) and seven men. Their first meeting was in Brunei Darussalam on February 2013. Now, AICHR is planning to draft two legally binding conventions: on the rights of women (promoted by Thailand and the Philippines) and the right to education (proposed by Brunei Darussalam). AICHR will discuss the convention of the rights of women in their upcoming 12th meeting in Jakarta, May 6-10, 2013. AICHR’s TOR is due for review in 2014 under the Myanmar chairmanship. The review may have both positive and negative implicationsfor the future human rights architecture in ASEAN, i.e. it can create a clear target or benchmark to improve the protection mandate of the AICHR, which is currently lacking. Limited by its mandates, AICHR has been silent on human rights issues in the region, which suggests the observation that AICHR has been used to shield the governments from critics. AICHR has been working for more than a year now on the guideline to engage civil society groups that was initiated and drafted by Thailand. Unfortunately, there were not

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only cold responses from the majority of the AICHR Representatives every time the topic came to the table, but members also pretended that the discussion never took place.

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ACWC  The ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) was launched in Hanoi, Vietnam on April 7, 2010. The creation of ACWC was based on the Socio-Cultural Blueprint.    ACWC has 20 Representatives from ten ASEAN member states. Ten of them deal with the rights of women and the rest with the rights of the child. It was created based on the Social-Cultural Blueprint, as an inter-governmental, advisory and consultative body, which holds consensus as decision-making. Similar to AICHR, ACWC has no investigative, evaluative, or enforcement powers and any early warning mechanisms. ACWC can provide adviceto ASEAN sectorial governments upon request and advocate on behalf of women and children to improve their human rights situation. A while after its establishment, ACWC was suspiciously perceived as the competitor to the existing AICHR, which carries the role of the overarching human rights institution in ASEAN and that the presence of ACWC would neutralize the very role of AICHR to promote and protect human rights. AICHR perceived that the establishment of ACWC was considered as a mistake. Furthermore, the Terms of Reference (TOR) of ACWC was seen as imitating AICHR’s, and therefore requires revision. Unavoidably, this disagreement has left a bitter relationship between the two. The source of funds to ACWC has not been clear from its establishment. ACWC has no secretariat. A Division on Social Welfare, Women, Labours, and Migrant Workers of the ASEAN Secretariat has supported the work of ACWC.In ASEAN’s organogram, ACWC is not mentioned anywhere in the organogram. So far, ACWC has finalized its Rules and Procedures (ROP), five-year work plan and agreed on 15 projects’ concept notes, including the compilation of country’swith best practices in eliminating violence against women and children that is scheduled to be published in June 2013. ACWC has met with UN Special Representative of Secretary General for the Rights of the Child on January 2012 in Manila. ACWC conducted consultations with civil society in their meetings in Indonesia during 2011-2012. The sixth meeting of ACWC on April 1-2, 2013 in Jakarta also discussed the workable mechanisms of civil society engagement in the implementation of the ACWC Work Plan.

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Currently, ACWC is drafting a Declaration on the Elimination of Violence against Women and Children.

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ACMW  The 40th ASEAN Foreign Ministers Meeting in July 2007 called for the establishment of an ASEAN Committee on the Implementation of the Declaration on the Protection and Promotion of the rights of Migrant Workers (ACMW).  ACMW is a subsidiary body of the Senior Labor Officials Meeting (SLOM), and therefore, ACMW reports to SLOM. ACMW meets once a year. ACMW Chair rotation follows the ASEAN Chairmanship. ACMW works based on four areas of cooperation: a) Protection against exploitation and mistreatment; b) Enhancing labour migration governance; c) Regional cooperation to fight human trafficking; and, c) Establishment of the ASEAN Instrument on the Promotion and Protection of the Rights of Migrant Workers. On the 12th ASEAN Summit in Cebu, the Philippines in 2007, the ASEAN Head of States signed the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, as a platform to promote fundamental rights and dignity of migrant workers and its family members, covering the obligations of Sending and Receiving States. ASEAN Leaders adopted the ASEAN Socio-Cultural Community (ASCC) Blueprint in the 14th Summit in Thailand in 2009. ASCC includes the protection and promotion on the rights of migrant workers, which consists of nine action lines. ACMW established a Drafting Team (DT), which was composed of sending countries (the Philippines and Indonesia), and receiving countries (Malaysia and Thailand). The main task of the DT is to come up with the ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers. On March 25-27, 2009 ACMW conducted a Workshop on the Scope of Coverage for Migrant Workers in Manila, the Philippines with the aim at identifying issues for the instrument. All ASEAN Member States attended the workshop, except Malaysia. The Workshop came up with identification of substantive issues of the instrument along with recommendations on the outline of the instrument, definition and coverage, key principles and the nature of the instrument. The first meeting of ACMW-DT was in April 1, 2009 in Bangkok, Thailand. Different positions on coverage and the type of the ASEAN instrument emerged. It was disputed whether it will cover documented or undocumented migrant workers and whether the document will be legally nor not legally binding. The meeting had no consensus over the outline and coverage of the instrument. Malaysia did not agree and disassociated herself with Manila’s Recommendation due to her absence. The second meeting of ACMW-DT was conducted in Bali, Indonesia on June 24-25, 2009. The meeting came up with the following outcomes: a) Term of Reference of ACMW-DT, b) Work plan of ACMW-DT, and c) target of ACMW-DT. The meeting had

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no consensus over the coverage and type of the instrument. Indonesia and the Philippines were tasked to prepare an initial draft of the instrument.  The third meeting of ACMW-DT was in Kuala Lumpur, 7-8 December, 2009. The discussion over the instrument on coverage and the type of document met a deadlock. Malaysia issued a Background Paper, while sending states of ASEAN continued to use the initial draft instrument as the basic reference for negotiation. ACMW DT was tasked to seek guidance from the Senior Labour Officials Meeting (SLOM) and the ASEAN Labour Ministers Meeting (ALMM). In ACMW’s third meeting in Hanoi, Vietnam on May 18-19, 2010, came up with the following recommendations: a) Drafting Team should continue its works; b) Explore and make use of innovative approaches to reach consensus, for example by focusing on common grounds, c) Expansion of the drafting team members. The recommendations were approved by SLOM and ALMM in Hanoi, Vietnam on May 2010. In September 2011, ACMW-DT conducted their fourth meeting in Manila, the Philippines. This is the first meeting during which DT members came from ten representatives of ASEAN states. The meeting agreed to continue to discuss the phases of the drafting and to find common issues that fit with the level of comfort of all membersin line with the existing national laws and/or policies, and in accordance with the 2007 Cebu Declaration. The drafting will undergo three phases: a) Phase 1: to discuss regular migrant workers in 2012, b) Phase 2: to discuss irregular migrant workers in 2013, and c) Phase 3: to discuss the legal status of the instrument in 2014. It is expected that by 2015, ASEAN will have an Instrument on the protection and promotion of migrant workers that is agreed by all ten ASEAN member states. In May 2012, ACMW DT organized their 5th meeting in Singapore. The meeting agreed to adopt the zero draft of the Instrument. The draft was based on the wishing lists submitted by all ASEAN Member States. It contains ten elements: a) General Principles; b) Definition of Migrant Workers, both documented/regular and undocumented/irregular; c) Fundamental Rights of [regular/all] Migrant Workers and Family Members already residing with them (subject to existing national laws, regulations and policies); d) Specific Rights of Regular MW (subject to existing national laws, regulations and policies) covering: 1) Pre departure; 2) During employment; 3) Upon return; e) Obligations of Receiving States; f) Obligations of Sending States; g) Commitments of ASEAN Member States, h) Amendments, i) Signature, Ratification, Depository and entry into Force, j) Settlement of Disputes. ACMW-DT works based on the following: o o That the instrument shall not be interpreted as implying the regularization of the situation of migrant workers who are undocumented. The rights to be covered in the instrument shall refer to those guaranteed under the ASEAN Declaration on the Protection and Promotion of the Rights of

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Migrant Workers. In upholding these rights, ASEAN Member States recognize the sovereignty of States. The Instrument will cover rights of migrant workers for the entire employment process in which the obligations to promote and protect these rights shall be balanced between Sending and Receiving States. Both Sending and Receiving States should enforce laws within their jurisdiction related to the protection of migrant workers, including those related to labor intermediaries. Definition in the 1990 UN Convention on the protection of the rights of migrant workers and the members of their family: “Migrant Workers refer to a person who is to be engaged, is engaged or has been engaged in a remuneratedactivity in a State of which he or she is not a national”. ASEAN Member States to further decide the applicability of the instrument to different categories of migrant workers. Legislations concerning immigration, employment, health and anti-trafficking.

Human Rights Working Group (HRWG) Indonesia, April 2013

In September 2012, ACMW-DT held their 6th meeting in Ha Noi, Vietnam. ACMW DT continued to discuss the draft Instrument. April 29-30, 2013, ACMW-DT will have its 7thmeeting in Jakarta, Indonesia. The ACMW prioritises the development of the ASEAN Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers. One of the activities on the development of the ASEAN Framework Instrument is to engage stakeholders – Members States, Employers, Trade Unions, Civil Society, and the UN Agencies (ILO and IOM) - by organising the annual “ASEAN Forum on Migrant Labour”.

ASEAN Forum on Migrant Labor (AFML)  AFML is not a human rights system, but rather a multi-stakeholder forum on migrant workers in ASEAN. It provides the space to review the implementation of the ASEAN Declaration and progress in the development of the ASEAN Framework Instrument on the protection and promotion of the rights of migrant workers. The Forum also provides an opportunity for sharing information on recent regional and global developments concerning the rights of migrant workers such as the adoption of an international instrument on decent work for domestic workers. During the 12th ASEAN Summit held in Cebu, the Philippines, ASEAN Head of States signed the ASEAN Declaration on the protection and promotion of the rights of Migrant Workers on January 13, 2007.

29.4.2013, Summarized by Ms Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights, email: Wahyuningrum@gmail.com, mobile: +62 815 10543290.

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