UNIVERSITY OF THE PHILIPPINES INSTITUE OF HUMAN RIGHTS Submission to the ASEAN Intergovernmental Commission on Human Rights On the ASEAN

Human Rights Declaration 19 June 2012 As part of our intervention and submissions during the Second Consultation on the ASEAN Human 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 of decent 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.1 2. Every person has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.2 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,3 provided that such production is not contrary to the enjoyment of public goods necessary for the realization 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 and dignity, including the rights to life, health and privacy. Explanation: Intellectual property rights are first and foremost means by which States seek to provide incentives 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 human rights to food, health and education, as well as in taking part in cultural life and in enjoying the benefits of scientific progress and its applications. To strike an adequate balance between the effective protection of the moral and material interests of authors and States parties’ obligations in relation to the rights to food, health and education, as well as the rights to take part in cultural life and to enjoy the benefits of scientific progress and its applications,
1 2 3

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 expressions of 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 the collective 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 from all forms of aggression, tyranny, oppression and violence, including during internal armed conflicts, as defined and governed under international humanitarian law. States have obligations to undertake all measures to eliminate inequality, exclusion and poverty, as they generate structural violence, which is incompatible with peace. 2. The right to peace imposes upon the member-States the fundamental obligation to implement and realize it, which includes the duty to renounce and eradicate war, the primary and essential condition for the material well-being, development, security, stability, sustained economic growth, shared prosperity and social progress of ASEAN countries, for the full implementation of the rights and fundamental human freedoms of all persons within ASEAN, and avoidance of resort to rebellion. States must undertake all measure to ensure the realization of the right 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 international relations and the settlement of international disputes by peaceful means. 3. Everyone has the right to demand from his or her Government the effective observance of the norms of international law, including international human rights law and international humanitarian law. 4. Regional as well as international cooperation must be undertaken to assist in the implementation and realization of the right of peoples to peace through the adoption of appropriate measures at the national, regional and international levels.4 5. The right to peace also imposes upon the State a duty to ground conflict resolution on rule of 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 increased resources to international cooperation for development. To strengthen international rule of law, all States shall strive to support international justice applicable to all States equally and to prosecute the crime 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 rights on an equal basis with others, before the courts, and other tribunals, regardless of the nature and stage 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 right includes the right of every person, individually or in association with others, to equal and effective protection of the law, equality at arms, legal assistance, meaningful participation in any proceeding, provision of adequate, effective and enforceable remedies as appropriate responses to human rights violations and guarantee that States shall undertake all measures to grant to the victims thereof all forms and venues of redress. 2. In order to help to ensure effective and enforceable access to justice, States shall promote appropriate training for all those working in the field of administration of justice. The right to access to justice imposes upon the State the obligation to conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.

Access to justice and fair treatment5

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.

to access to the mechanisms of justice and to prompt, adequate, meaningful, effective and enforceable redress, as provided for by national legislation, for the harm that they have suffered. 4. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. 5. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: ( a ) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; ( b ) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system; ( c ) Providing proper assistance to victims throughout the legal process; ( d ) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; ( e ) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims. 6. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims, with due regard for compliance with human rights standards.

7. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. 8. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. 9. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community. 10. Where public officials or other agents acting in an official or quasi-official capacity have

violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

11. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: ( a ) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; ( b ) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. 12. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

13. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means. 14. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them. 15. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid. 16. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. Gross violations of human rights 17. In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person/s allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations. 18. Remedies for gross violations of international human rights law and serious violations of

international humanitarian law include the victim’s right to the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms. D. We propose a provision on the State Obligation to Protect Human Rights Defenders, Proposed Provision: 1. All member-States have a primary and collective responsibility and duty to protect, promote and implement all human rights and fundamental freedoms of all persons under its jurisdiction, individually and in association with others, with particular attention to the vulnerability and special context of human rights defenders. 2. States should prevent violations of the rights of defenders under their jurisdiction by taking legal, judicial, administrative and all other measures to ensure the full enjoyment by defenders of their rights; investigating alleged violations; prosecuting alleged perpetrators; and providing defenders with remedies and reparation. To enhance the protection of defenders, States should also harmonize their domestic legal frameworks with the Declaration on Human Rights Defenders. 3. States shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration. 4. All non-State actors, including armed groups, the media, faith-based groups, communities, private companies and individuals should refrain from taking any measures that would result in preventing defenders from exercising their rights. Explanation: The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms of March 8, 1999 (the Declaration on Human Rights Defenders) reaffirms rights that are instrumental to the defense of human rights, including freedom of association, freedom of peaceful assembly, freedom of opinion and expression, and the right to access funding and to develop and discuss new human rights ideas. “Human rights defender” is a term used to describe people who, individually or with others, act to promote or protect human rights.

E. We propose a re-articulation of the provision on Limitations on Rights as expressed in Art. 29 of the Universal Declaration of Human rights,

Proposed Provision: 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the ASEAN. F. On transparency, and broad-based participation and engagement with civil society organizations and stakeholders, Reiteration of the need to institutionalize a participatory and consultative mechanism within ASEAN, not only in the formulation of the Declaration, but also with respect to other human rights instruments, which shall be promulgated in the future, both with the respective country representatives and more so, with the AICHR itself as a collegial body. G. On non-retrogression, The need to be very circumspect in the use of ASEAN peculiarities or common values since such have not yet attained any legal and jurisprudential antecedents or standing that could provide basis for norm or standard setting for human rights practice in the region. Customary as well as conventional international law on human rights should be the basis for the ASEAN regional human rights system, law and jurisprudence, where regional articulation of human rights norms must not, while taking into account the context of the region, retrogress from human rights norms and gains being enjoyed, and should be enjoyed, by all the peoples of ASEAN.

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