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ASEAN HUMAN RIGHTS ACTIVISTS CALL FOR A SOGI-INCLUSIVE ASEAN HUMAN RIGHTS DECLARATION

The ASEAN Inter-Governmental Commission on Human Rights (AICHR) has worked hard to draft an ASEAN Human Rights Declaration (AHRD) that reflects the true commitment among Member States to upholding human rights, promotes adherence to recognized international human rights standards and meets ASEAN’s main goal: “strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the Rights and Responsibilities of the Member States of ASEAN1.” Under the ASEAN Charter, Member States reaffirm their adherence “to the fundamental principles contained in the declarations, agreements . . . and other instruments of ASEAN2.” Member States undertake to“[Uphold] the United Nations (UN) Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States3.” In addition, Member States must comply with those rights, which now form part of customary international law and which are universally applicable. The ASEAN Charter commits Member States to upholding the Charter of the United Nations, of which all ASEAN countries are members. Under the UN Charter, Member States pledge to maintain international peace and security, reaffirm their faith in the “dignity and worth of the human person,” and promote respect for human rights for all without distinction as to race, sex, language, or religion4.” The ASEAN Charter and ASEAN human rights bodies and declarations reinforce these principles. Being one of ASEAN’s human rights bodies, AICHR must be guided by “respect for international human rights principles, including universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, as well as impartiality, objectivity, non-selectivity, non-discrimination, and avoidance of double standards and politicization5.” The recommendations listed in this submission have been formulated by groups and activists from the LGBT, women’s rights and human rights sectors, representing regions from across Asia. They have participated in local and regional workshops and consultations concerning the AHRD, including The Women’s Caucus, the ASEAN Civil Society Conference/ASEAN People’s Forum and PhilWomen on ASEAN Workshop. We believe that LGBT persons in Asia have the right to be included in the consultation process and have their recommendations scrutinized with non-biased and non-prejudiced eyes, free from discrimination and religious bigotry. As the UN High Commissioner for Human Rights, Navanethem Pillay, has noted: “no discussion of human rights can be complete or credible without significant input from civil society and national human rights institutions”6. Seeing the value of the AHRD as a legal human rights document, lesbian, gay, bisexual
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Charter of the Association of Southeast Asian Nations (ASEAN Charter), art. 1(7) (2007) ASEAN Charter, art. 2(1) 3 ASEAN Charter, art. 2(2)(j). 4 UN Charter, art. 1(3). 5 AICHR TOR, art. 2(2).

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Civil society must play bigger role in human rights in South-East Asia – UN official, http://www.un.org/apps/news/story.asp?NewsID=40546

and transgender (LGBT) individuals across Southeast Asia aspire that the final document will recognize ASEAN’s obligations under the UN Charter and protect the rights of all people, regardless of sexual orientation and gender identity (SOGI) We believe that this will only be achieved with the cooperation of AICHR, and its willingness to include the human rights of LGBT individuals. RATIONALE FOR THE INCLUSION OF SEXUAL ORIENTATION AND GENDER IDENTITY IN THE AHRD Every ASEAN Member State is a party to the UN Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). They are therefore bound by the terms of each of these treaties. The CRC is universally ratified within ASEAN and no ASEAN state made a reservation on the non-discrimination provision of the CRC, which under General Comment No. 37 specifically mentioning sexual orientation as one of the protected categories under the nondiscrimination principle. During the 47th Session of CEDAW (October 2010) , the Committee on the Elimination of Discrimination Against Women (“the CEDAW Committee”) adopted sexual orientation and gender identity in its General recommendation No. 278, which focuses on older women and the protection of their human rights. Similarly, in General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW9, the CEDAW Committee made explicit reference to SOGI. Both General Recommendations clearly identify that discrimination on the basis of sexual orientation and gender identity is inextricably linked with discrimination against women on the basis of sex or gender and that it must be prohibited and addressed under States’ CEDAW obligations. Therefore, we propose that sexual orientation and gender identity be included in the AHRD: GENERAL PRINCIPLE Everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, sexual orientation, gender identity, language, religion, political or other opinions, national or social origin, property, birth, disability or other status. No one shall be discriminated against by any public authority or any third parties on any grounds. The State shall take action to eliminate both discrimination de jure (in law) and de facto (in fact). The human rights of women, children, the elderly, persons with disabilities, migrant workers, migrants, victims of natural calamities, internally displaced persons, ethnic groups, indigenous peoples, and other vulnerable groups regardless of sexual orientation and gender identity, are inalienable, integral and indivisible part of universal human rights.

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CEDAW/C/2010/47/GC.1 CEDAW/C/2010/47/GC.2

STATE RESPONSIBILITIES OF THE ASEAN MEMBER STATES We propose this provision be included in the AHRD: ASEAN Member States shall undertake to prohibit and to eliminate all forms of discrimination of any kind, including race, colour, national or ethnic origin, sex, gender, sexual orientation, gender identity, age, social and legal status.

DUTIES AND RESPONSIBILITIES We propose this provision be included in the AHRD: Everyone regardless of gender, ethnic origin, social status, political opinion, language, age, nationality, or religion, sexual orientation and gender identity has a responsibility to treat all people in a humane way. CIVIL AND POLITICAL RIGHTS We propose this provision be included in the AHRD: Within the ambit of the law, no one shall be forcibly returned or transferred extradited to a place where he or she may face persecution on grounds of race, religion, ethnicity, nationality, social status, sexual orientation and gender identity. RIGHTS OF WOMEN, CHILDREN AND OTHER VULNERABLE GROUPS We propose this provision be included in the AHRD: The human rights of vulnerable groups including women, children, persons with disabilities and elderly regardless of sexual orientation and gender identity are inalienable, integral, and indivisible part of universal human rights. Migrant workers and members of their families within the territory or subject to the jurisdiction of any ASEAN member State shall enjoy their human rights and fundamental freedoms without distinction of any kind such as to sex, gender, sexual orientation, gender identity, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, material status, disability, birth or other status.] SIGNATORIES: 1. GAYa NUSANTARA – Indonesia 2. People Like Us, Singapore 3. Sayoni, Singapore 4. Dr. Dédé Oetomo (shortlisted candidate, Indonesian National Human Rights Commission) 5. The Cambodian Center for Human Rights (CCHR) 6. Rainbow Rights Project (R-Rights) – Philippines 7. Poedjiati Tan – Representative Female ILGA ASIA 8. Women's Legal and Human Rights Bureau (WLB) – Philippines 9. Philwomen on ASEAN 10.Knowledge and Rights with Young people through Safer Spaces (KRYSS) – Malaysia

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