FORUM-ASIA. Asian Human Rights. Defender. Newsletter of the Asian Forum for Human Rights and Development. Vol.5, No.

Transcription

1 FORUM-ASIA Asian Human Rights Defender Newsletter of the Asian Forum for Human Rights and Development Vol.5, No.2 September 2009

2 Inside Message from the Secretariat...3 Main theme Making human rights body accountable through regional solidarity...4 Can AICHR promote and protect human rights?..6 Political Declaration must set clear guidelines...11 ASEAN urged to set up human rights court...13 ASEAN framework instrument for migrant workers must be legally binding...15 ASEAN must promote Indigenous peoples rights according to UNDRIP...17 Burma: A benchmark for ASEAN s success or failure...19 Regional highlight Windows of opportunities to advance ESCR in Asia...22 Political economy of climate change...24 Holding business corporations and transnational companies accountable to ESCR violations...27 FTA is not just about trade, but human rights...30 Say no to International Financial Institutions...33 Country Highlight Justice for Munir, justice for all!...35 People s courage against martial law...37 Controversial video: Independent, international investigation urgently needed...38 Solidarity key to resolve human rights abuses in Yongsan...40 Advocacy Asian NGOs engage with NHRIs at various levels...43 Window dressing weakens ASEAN...46 Special Procedures need more respect from Member States...47 Support competitive elections!...48 Get involved and support the OP!...50 Special feature Break the silence over LGBT issues with regional solidarity...51 FORUM-ASIA is a membership-based regional human rights organisation committed to the promotion and protection of all human rights including the right to development. FORUM-ASIA was founded in 1991 in Manila and its regional Secretariat has been located in Bangkok since At present, FORUM-ASIA has 42 member organisations across Asia. Head Office Rue de Varembé 1, 2nd Floor, 1202 Geneva, Switzerland Regional office Room th Floor., Times Square Building, 246 Sukhumvit Road, Between Soi 12-14, Klongtoey, Klongtoey, Bangkok, Thailand Tel: +66 (0) Fax: +66 (0) info@forum-asia.org The Asian Human Rights Defender is the newsletter issued every four months by the Asian Forum for Human Rights and Development (FORUM-ASIA). Editorial Team: Moyuko Okada Susan Loone Yap Swee Seng Issue Editor: Susan Loone FORUM-ASIA Asian Human Rights Defender Staff Contributors: Emerlynne Gil Gayoon Baek Giyoun Kim Pharawee Koletschka Yuyun Wahyuningrun Guest Contributors: Asian Federation Against Involuntary Disappearance Chanida Bamford Dorothy Grace Guerrero Katrina Jorene Maliamauv No-hyun Kwak Philippines Alliance of Human Rights Associations Charles Santiago Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN & Burma Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN and Human Rights (TF-AHR) Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN Migrant Workers Design and layout: Moyuko Okada Photograph on back cover: Moyuko Okada, Cross (Rayong, Thailand, 2007) This publication is NOT for sale. It is distributed to our members and partners only, and NOT for commercial purpose. Contents of this publication may be freely quoted or reproduced, provided acknowledgement is made. The views expressed in this publication may not necessarily reflect the position of FORUM-ASIA. Comments and contributions are welcome. 2 Vol. 5 No. 2 September 2009

3 Message from the Secretariat Greetings from Bangkok! As I proudly present you the latest edition of FORUM-ASIA s Asian Human Rights Defenders newsletter, two historic events have taken place in our times. First, the adoption of the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights in Thailand, and the opening of signing and ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in New York, USA. On this note, I would like to thank all our members, partners and friends in Asia and beyond for their solidarity and tireless campaigns which contributed to the realisation of Photo: Moyuko Okada these significant events. During the past few months, civil society has been pushing hard, at regional and international level, for the establishment of an ASEAN human rights body with teeth! Some of our efforts are presented in the main theme of this edition of the AHRD, and the various submissions by civil society to ensure that ASEAN keeps to its words of being people centred. Although we welcome with mixed feelings the AICHR, which is the first of its kind in this region, and await its official launch in October 2009 at the ASEAN Summit in Thailand, we will continue to demand for a mechanism that is accountable, independent, and effective to promote and protect human rights. At the same time, our work at the UN Human Rights Council at the 11th Session in June, continue to grow with interventions by Asian NGOs on various issues. For example, we would like to highlight the fact that we raised the issues of the principle of non-interference inherited in the draft TOR of the ASEAN human rights body; and we demanded that the Special Procedures be given more respect by the States to do their jobs effectively. More collaboration between Asian NGOs for advocacy in Geneva is evident through their joint letter advocating support for competitive elections in the Human Rights Council elections in Regionally, we also bring you updates of the Asian NGO Network on National Human Rights Institutions. At the organisational level, we would like to share with you some of our presentations at the FA organised Regional Consultation on Economic Social and Cultural Rights in Bangkok in July. We offer you four articles by experts in the region on issues such as the implications of Free Trade Agreements in Asia; why we should say No to International Financial Institutions; holding business corporations and transnational companies accountable to ESCR violations and the political economy of climate change. This publication will not be complete without some news from our members. Our special highlight on four countries cover stories on the the loss of a great Asian human rights defender Munir Talib Sahib in Indonesia five years ago; the threat to freedom and democracy due to impunity in the Philippines; the on-going eviction cases which claim lives in Yongsan, South Korea, and the current post war crisis in Sri Lanka. To conclude this issue, we share with you special interviewes with our friends in Mongolia, on LGBT rights and their call for regional solidarity to break the silence surrounding this issue. Lastly, I would like to thank everyone who contributed to the publication of this Asian Human Rights Defenders. We hope our featured articles would, in one way or another, help you understand the work of FORUM-ASIA and its mission to promote and protect all human rights for all. Yap Swee Seng, Executive Director FORUM-ASIA ASIAN human rights defender 3

4 Making human rights body accountable through regional solidarity Wathshlah Naidu, Asia Pacific International Women s Rights Action Watch, responds to questions by the media on 28 February 2009, after meeting ASEAN leaders in Hua Hin, Thailand. (APF) In July this year, the human rights movement and civil society welcomed the adoption of the Terms of Reference (TOR) for the Asean Human Rights Body in Phuket, Thailand, with mixed feelings. Civil society groups felt that this Body, to be named ASEAN Intergovernmental Human Rights Commission (AICHR), lacked teeth, therefore they questioned its ability to stay committed to the spirit and essence of the ASEAN Charter. ASEAN s secretary-general Dr Surin Pitsuwan attempted to put their minds to rest when he said that the decision by the 42nd ASEAN Foreign Ministers Meeting to adopt the TOR will contribute towards strengthening ASEAN s community building. He said that the association is currently implementing the ASEAN Charter both in letter and in spirit. Democracy and human rights are two basic principles enshrined in the Charter and we are now taking steps towards the fulfilment of these principles for our peoples, he added in Phuket, after the adoption of the TOR. But NGOs look upon this new development as a challenge to reaffirm their commitment to promote and protect human rights for all in the region. As for the new Commission, each ASEAN Member State will now appoint its national representative to the Commission in time for its formal establishment at the upcoming 15th ASEAN Summit 4 Vol. 5 No. 2 September 2009

5 ASEAN & human rights in Phuket on October A political declaration for the launching of the Commission is being drafted by the High -Level Panel that drafted the TOR for the Commission. In the political declaration, the ASEAN Leaders will lay down the guidelines on how to further strengthen the mandate and functions of the Commission in the promotion and protection of human rights in ASEAN. Civil society groups are currently preparing their version of this document to express their demands. Can the AICHR promote and protect human rights? Civil society organisations regret that the AICHR adopts the formula of promotion first, protection later. It remains to be seen whether ASEAN is committed to uphold human rights in Asia, or whether the Association can ensure the independence of the Commission, the representatives and its secretariat. These concerns have been conveyed very vocally in an open letter to the HLP on 22 June 2009, where 200 civil society organisations request the AICHR to include at least three mandates; conduct country visits, receive complaints and initiate investigations, and conduct periodic reviews of human rights situations in the region. However, the current situation should not dampen the spirit of activists to continue to push for a better human rights mechanism. As pointed out by the UN High Commissioner for Human Rights, Navanethem Pillay, ASEAN has made important progress towards promoting and protecting international human rights standards. She expressed hope that following the launch of the AICHR, a clear protection mandate in the political declaration will be established. Whether AICHR can protect human rights depends largely on civil society s engagement with ASEAN and the relevant articles in the TOR, pledges made by Representatives of the AICHR and ASEAN member states, especially countries who have shown commitment to uphold international human rights standards in the region. Whether the AICHR will be relevant to the people depends very much on whether it can address serious human rights violations throughout the region. This issue of the Asian Human Rights Defender focuses on several aspects of the ASEAN human rights body so that we may fully understand its processes and progress. More importantly, these articles which range from discussions on AICHR, ASEAN leaders political declaration on TOR, indigenous peoples rights, women, children and migrant workers, including ASEAN s thorn in the flesh: Burma, will help us keep abreast of solidarity actions among civil society groups to make the coming AICHR accountable to its people. ASIAN human rights defender 5

6 Can AICHR promote and protect human rights? Yuyun Wahyuningrum The Southeast Asian sub-region continues to be the place where human rights defenders still risk their lives and liberty when speaking out, challenging the impunity of human rights violators and seeking to build societies that respect and uphold values of human dignity. Dictatorships in Burma and Cambodia, conflicts in Thailand and the Philippines and elsewhere in the region, continue to claim lives and impose suffering on innocent civilians. National human rights commissions 1 are now found in four ASEAN countries (The Philippines, Indonesia, Malaysia and Thailand), and they provide key checks and balances against abuses of power. These commissions have had to tackle very difficult issues ranging from extra-judicial killings to violations of labour rights, children s rights and women s rights. More importantly today, with global concerns against terrorism, is the rise of a host of issues linked to national security which also have to be dealt with sensitively by national human rights commissions. Protection or promotion? Having said this, the ASEAN human rights mechanism is supposed to play a role in stock taking of human rights developments in the region from the standpoint of ASEAN. It is supposed to help outsiders understand the ASEAN perspective better, and to compliment international human rights standards in the region. The essence of creating a human rights mechanism, whether national, regional or international, is to protect human rights of the people. However, one only has to further scrutinise the main purposes of the AICHR as articulated in its TOR - promote and protect human rights and fundamental freedoms in order to complement community building process in ASEAN integration - to know that the Commission is more focused on the areas of promotion. AICHR is tasked to enhance public awareness of human rights, establish a framework for human rights cooperation through developing ASEAN conventions and other instruments dealing with human rights. It is also tasked to provide advisory 6 Vol. 5 No. 2 September 2009

7 ASEAN & human rights the TOR, has already had a number of dialogues with representatives of ASEAN civil society to discuss the formulation of the draft. The TOR stipulates that while AICHR shall respect international human rights principles, including universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, as well as impartiality, objectivity, nonselectivity, non-discrimination, and avoidance of double standards and politicisation, the TOR also states that the primary responsibility to promote and protect human rights rests with each member state. As part of the ASEAN organ, AICHR is requested to follow the ASEAN Charter principles to respect the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN member States, comply with the policy of non-interference in the internal affairs of ASEAN member States. No guarantee of independence Civil society met with the High Level Panel on ASEAN human rights body on 11 September 2008 in Manila, Philippines. services and technical assistance on human rights, engage civil society and national and international institutions in matters related to the promotion and protection of human rights, obtain information from ASEAN member states, prepare studies on thematic issues on human rights in ASEAN, and submit annual reports to the ASEAN Foreign Ministers. The commission is comprised of ten representatives from the ten member countries of ASEAN, each will serve a three-year term and may consecutively be appointed for one more term. The TOR requires the representatives to be impartial in carrying out their duties. Despite being inter-governmental in nature, decisions are to be made by consultation and consensus so that a people-oriented ASEAN can be realised. The AICHR is thus mandated to engage in dialogue and consultation with relevant stakeholders within and beyond ASEAN, including civil society organisations. In fact, the High Level Panel, tasked with drafting The AICHR is expected to respect the UN Charter and international laws, the rule of law, good governance, democracy, fundamental freedoms, and social justice, and adopt the evolutionary approach along the course of life of the body. It is to enhance the promotion and protection of human rights in a constructive, non-confrontational approach and cooperative manner. While appreciating that Article 6.8 of the TOR envisions the AICHR as an overarching body in its relations with the other human rights bodies, civil society organisations regret that the AICHR adopts the formula of promotion first, protection later. It is perceived that ASEAN lacks the commitment to uphold human ASIAN human rights defender 7

8 rights in the region. Civil society is also concerned that there is no guarantee of the independence of the body, the representatives and the secretariat support. In an open letter to the HLP on 22 June 2009, 200 civil society organisations conveyed their request to see that the AICHR includes at least three mandates: conduct country visits, receive complaints and initiate investigations, and conduct periodic reviews of human rights situations in the region. 2 The series of civil society campaigns on the inclusion of protection mandates was described by Bangkok-based The Nation newspaper as a make or break period. 3 Efforts to promote a more thorough approach to human rights in the region have been supported by ASEAN members. At the recent AMM in Thailand in July 2009, Indonesia fought to give the AICHR more power. Together with Thailand, Indonesia had been pushing for the body to have the mandate to monitor and review human rights situations in every member state and to conduct country visits. The proposal was rejected by other members such as the CLMV Block (Cambodia, Laos, Myanmar and Vietnam). Thailand s Foreign Minister, Kasit Piromya, admitted that it was the maximum consensus 4 that they can reach to ensure that all states can endorse the TOR. However, Indonesia insisted that these views be reflected in a political declaration at the next ASEAN Summit meeting in October Despite the inadequacy of protection in the TOR, the UN High Commissioner for Human Rights, Navanethem Pillay, has acknowledged that ASEAN has made important progress towards promoting and protecting international human rights standards. 5 She also encouraged ASEAN to engage in multi-stakeholder participation and consultation in AICHR s activities. She expressed hope that following the launch of the AICHR, a clear protection mandate will be established in the political declaration. Windows of opportunity Looking ahead, there are articles in the TOR of AICHR that can be used wisely and strategically to tackle the region s sensitive issues. Take for instance Article 4.8, which states that AICHR must engage in dialogue and consultation with other ASEAN bodies, including civil society organisations and other stakeholders. This provides a window of opportunity for the Representatives to pro-actively continue the dialogue with civil society groups, victims and people s organisations. Article 4.10 states that AICHR is mandated to obtain information from ASEAN Member States on the promotion and protection of human rights which will provide room for manoeuvre on issues to be collected by each of the ten Representatives. Article 4.12 provides the mandate for AICHR to prepare studies on thematic issues of human rights in ASEAN which will task the Representatives to seek information and gather data from ASEAN countries on issues related to human rights. Civil society can use this article together with Article 4.8 to hold a consultation to determine the thematic issues in ASEAN. Combining Article 4.8 and Article 6.2, on holding annual meetings, civil society can request for a forum dedicated to the interface meeting between the Representatives and civil society annually, where victims and survivors can dialogue with the AICHR directly. Actually the TOR of AICHR expands its channel of communication between the people of ASEAN and the association by introducing Article 7.1, which states that the role of the Secretary- General of ASEAN is to bring relevant issues to the attention of the AICHR in accordance with Article 11.2 (a) and (b) of the ASEAN Charter. Whether AICHR is relevant to ASEAN people depends on the creativity of civil society in using the articles in the TOR, and the pledge of the Representatives of the AICHR and ASEAN members, especially countries who have shown commitment to uphold international human rights standards in the region. Civil society should not lose sight of the AICHR. Intensive monitoring is important, and annual reports on human rights as well as reviews of the working performance of the AICHR should be presented and published. Civil society should use the opportunity of evaluating the AICHR after 5 years to identify areas for improvement, by providing evidences to substantiate their claims and compiling them in the proposed annual reports. Challenges for the Commission Non-interference principles: The TOR s biggest spoiler is Article 2.1.b: non-interference in the internal affairs of ASEAN member states. This principle, not only inherited in ASEAN but is also somewhat seen as its trademark, is often used by the States as an excuse/defense to avoid fulfilling their human rights obligations under international law. This longheld and much-abused principle is currently under intense scrutiny, resulting in many states proposals 8 Vol. 5 No. 2 September 2009

9 ASEAN & human rights to seek a new definition for the principle. Some governments try to skirt around the issue, preferring instead to move ahead with ongoing regional and global diplomatic dynamics, dwelling on collective responsibilities and shared norms However, this non-interference policy is not the sole invention of ASEAN governments but rather it is a universally accepted principle under international law which forms one of the underlying principles of any international treaty. However it should not be used to stifle or hinder the work of the AICHR to fulfill its mandate and functions, when member states invoke the notion of sovereignty or internal affairs to avoid scrutiny of its human rights records. Issues of compliance: It is still questionable whether AICHR can improve the plight of ethnic minorities in Burma after its launch in October 2009, and move beyond the standard expressions of disapproval for the junta. As indicated in their open letter 6 to the ASEAN ministers, civil society expressed its doubt whether ASEAN countries have the necessary political will to comply with the legally binding document, the ASEAN Charter, especially when it comes to Burma. The question remains whether this half-hearted attitude of ASEAN to censure the actions of the junta will improve or whether we can rely on the TOR of AICHR to provide any solutions. Under the TOR, the AICHR and ASEAN are obliged to uphold international human rights standards, which should presumably include securing the release of Daw Aung San Suu Kyi and the 2,100 political prisoners in Burma. In order to enforce the TOR, representatives of the AICHR should be competent in the field of human rights and able to propose suitable recommendations to the ASEAN Foreign Ministers. Hence, the regional development of human rights will depend largely on the Commission s ultimate composition. ASEAN or people centered? The TOR of AICHR provides the States with the necessary procedures on how they can send their representatives to the AICHR. It can be through appointment or the national process of selection. Up to now, only Indonesia and Thailand seem to be committed to a selection process. However, the competency of their representatives does not necessarily ensure that the States can influence the final decision, as ASEAN s decision making process is through consensus. Moreover, Article 5.2 states very clearly that the Representative shall be accountable to the appointing government, and not to the people of ASEAN. On Coordination and relationship with ACWC and ACMW: Apart from establishing an overall human rights body (Article 6.6), ASEAN also wants to establish a mechanism to promote and protect the rights of women, children and migrant workers. As such, it has set up a working group to draft the TOR for the ACWC and the ASEAN Committee on the Implementation of the ASEAN Declaration for the Promotion and Protection of the Rights of Migrant Workers (ACMW). The drafting committee consists of two sending countries (Indonesia and the Philippines) and two receiving countries (Thailand and Malaysia). Article 6.9 requires AICHR to expeditiously determine the ASIAN human rights defender 9

10 A network of more than 25 ASEAN-based human rights organisations has met with the High Level Panel (HLP) on the establishment of the ASEAN human rights body on 20 March in Kuala Lumpur, Malaysia. modalities for ultimate alignment with the two bodies. But what is unclear now is the line of reporting, given that the nature of the establishments are very different from one another. AICHR was established based on Article 14 of the ASEAN Charter, while the ACWC and ACMW were created under the 2004 VAP. The ASEAN charter is legitimate as it is a legal document, while the 2004 VAP has been replaced with the blue print on social-cultural and it is not a legal document at all. In the issue of line reporting, Article 6.6 of the TOR instructs the AICHR to submit annual reports to the ASEAN Foreign Ministers Meeting. Meanwhile the ACWC and ACMW are not required to do so, but seem to be required only to report to lower level ministers or agencies such as the ASEAN Committee on Women (ACW), Senior Officers Meeting for Social Development and Welfare (SOMSWD) and the Senior Officers of Labor Ministers (SLOM). The difference in the levels of reporting reflects the degree of importance of the issue, which prompted civil society to urge ASEAN to harmonise these initiatives so that they can come under the overarching framework of the AICHR, which includes the promotion and protection of human rights for all. Resources mobilisation and control: The funding and secretariat support of the AICHR will depend on the availability of resources and expertise for both the AICHR and the ASEAN Secretariat. There is foreseeable operational challenges for the AICHR and other regional human rights mechanisms in the pipeline, such as the ACWC and ACMW. ASEAN states are encouraged to second their officials to the ASEAN Secretariat in order to resolve the budgetary problem. In terms of control over their budget, AICHR is required to seek approval from ASEAN Foreign Ministers, and recommendations from the Committee of Permanent Representatives to ASEAN. This is also the case with the AICHR s program and activities plan. It is assumed that the budgeting and program plan will become a political arena for the Members states to control the work of the AICHR. 1 All four commissions mentioned are members of the Asia-Pacific Forum of National Human Rights Institutions which provides a joint forum for these commissions to meet annually with the other national commissions from the Asia-Pacific region and address issues of common concern. 2 See 200 NGOs demand: Protection mandates and independent experts for ASEAN human rights body! At php?option=com_content&task=view &id=2231&itemid=32 3 See Kavi Chongkittavorn, Activist pressure forcing AHRB into a make or break period, The Nation, com/2009/06/29/opinion/ opinion_ php, Published on June 29, See the Outcome of the ASEAN Foreign Ministers Meeting with the High-Level Panel (HLP) on Human Rights Body and the ASEAN Foreign Ministers Meeting with the High Level Legal Experts Group on Follow-up to the ASEAN Charter (HLEG), 19 July 2009, AMM/19PRAS_HLP_HLEG.pdf 5 See Press Release, UN Human Rights Chief welcomes important step towards establishment of ASEAN Commission on Human Rights, nsf/view01/9d27dbcdd08c3c06 C12575FB003502C5?opendocument 6 See Burma is a Key Benchmark for ASEAN: Protect People-Centered Principles and Human Rights, Open Letter to ASEAN Foreign Ministers, 17 July 2009, org/news/submission/burma_open_ Letter_to_Asean%20FMs_AMM_ July% pdf Yuyun Wahyuningrun is East Asia Programme Manager for Forum-Asia. Further contents of this article will be published in a forthcoming publication of FORUM-ASIA. 10 Vol. 5 No. 2 September 2009

11 ASEAN & human rights Political Declaration must set clear guidelines Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN and Human Rights (TF-AHR) Below is the civil society s statement on the Political Declaration for the ASEAN Intergovernmental Commission on Human Rights (AICHR) submitted on 24 August 2009 by Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN and Human Rights (TF- AHR). The Solidarity for Asian People s Advocacy Task Force on ASEAN and Human Rights (SAPATF- AHR) welcomes the announcement that ASEAN leaders will issue a political declaration for the ASEAN Intergovernmental Commission on Human Rights (AICHR). We call on ASEAN leaders to come up with a document that would set clear guidelines that is consistent to the human rights standards and principles stated in the Terms of Reference (TOR) of the AICHR under Article 1.6 (Purposes) and Article 2.2 (Principles). To be consistent with the abovementioned internationally agreed human rights standards and principles, we in SAPA-TFAHR respectfully recommend to ASEAN leaders on the following proposals to be included in the political declaration to: 1. Commit that in order to better promote and protect human rights, ASEAN shall develop and elaborate an increasingly independent, effective and comprehensive regional human rights mechanism, which shall include regional human rights conventions, regional human rights commission and regional human rights court, in line with international human rights standards and the evolutionary approach, in no more than 10 years time, 2. Affirm that the human rights principles of nondiscrimination, equality, accountability, transparency and participation to be the operational guiding principles of the Terms of Reference (TOR) of the AICHR. 3. Ensure the application of the principle of universality, indivisibility, and interdependence and interrelatedness of rights, the political declaration should provide a clear statement that would instruct the AICHR to develop modalities that would guarantee: 3.1 The periodic review and reporting of the human rights situation of all ASEAN member States; 3.2 A fair and impartial review of reported human rights violation cases in the ASEAN Region and citizens of ASEAN abroad; 3.3 The development of a human rights declaration that would set human rights standards for the promotion and protection of human rights in the ASEAN Region that is not lower that the existing international human rights standards and to be the basis for ensuring the realization and equal development of civil-political and social, economic and cultural rights of all ASEAN peoples; 3.4 That the AICHR will assist ASIAN human rights defender 11

12 and facilitate the setting up of an independent regional human rights court in no more than ten years as one of the key milestones in its evolutionary approach towards better and effective promotion and protection of human rights; 4. Emphasize that the AICHR mandate covers both promotion and protection of human rights, as provided in Article 14.1 of the ASEAN Charter and in the TOR itself, including as to Purposes (Arts. 1.1 and 1.5), as to Principles (Arts. 2.3 and 2.4), and as to Mandate and Functions (Arts. 4.1, 4.9, and 4.10). 5. In the absence of detailed provisions for the AICHR s protection mandate, instruct the AICHR to establish modalities for the fulfilment of its mandate through the implementation of existing provisions: a. Undertake research and provide recommendations for the ASEAN member states onto human rights situations, both regional and national, in accordance with Article 4.3 of the TOR; b. Disseminate information on human rights situations, both regional and national, in accordance with Article 4.3 of the TOR, through the publication of reports, including an annual report, and respect the role of media and civil society to validate such information and reports, without fear of reprisal; c. Develop strategies for the protection of human rights in ASEAN, in accordance with Article 4.1 of the TOR, including by receiving and actively seeking information on human rights violations, in particular from disempowered and marginalized populations, by raising awareness of such violations and by pressing for ending and redressing human rights violations in dialogue with the states concerned, with ASEAN institutions and with public opinion, and allowing freedom and independence among the region s media and journalists to monitor and report on human rights issues on human rights issues without fear of reprisal; d. Develop a body of rapporteurship held by independent human rights experts in no more than five years of evolutionary approach in order to research and take actions to respond and address emerging human rights issues in the region 6. Make a clear and unequivocal statement that would ensure that the principle of sovereignty, which is a universally accepted principle under international law and which forms one of the underlying principles of any international treaty, would not be used to stifle or hinder the work of the AICHR based on its mandate and function, as when member states invoke sovereignty or internal affairs to avoid scrutiny of its human rights records. 7. Engage in regular dialogue and consultation with civil society organisations, trade unions and other stakeholders in ASEAN, in particular the National Human Rights institutions, in accordance with Article 4.8 of the TOR, providing clear modalities on how this will be operationalised and institutionalized, including giving space and recognition for alternative reports from civil society, trade unions and other stakeholders, the meaningful participation of civil society, trade unions and other stakeholders in the meetings of the AICHR and the free access of official information with regards to AICHR. 8. Clarify its role as stated in Article 6.8 of the TOR vis-a-vis the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) and the ASEAN Committee on the Implementation of the ASEAN Declaration for the Promotion and Protection of the Rights of Migrant Workers (ACMW). The AICHR should set out a plan of action for the eventual harmonization of these bodies with the AICHR in order to provide the overarching framework which includes the promotion and protection of human rights for all. 9. In regard to the evolutionary approach, instruct AICHR to develop, with other stakeholders, such other strategies for more elaborative systems, procedures, and mechanisms in efficacious way within reasonable period, for comprehensive promotion and protection of human rights, in accordance with international human rights law and standards. 10. Ensure that the TOR of the AICHR may be reviewed and improved progressively in line with the evolutionary approach whenever necessary, whereas the five year review will serve as a more thorough periodic review of the effectiveness of the AICHR. 11. Commit to the selection and appointment of independent 12 Vol. 5 No. 2 September 2009

13 ASEAN & human rights human rights expert in a transparent, participatory and accountable national selection process for the representative to the AICHR with meaningful consultation with all stakeholders. The launch of the AICHR, the first regional human rights body in Asia, could mark a turning point for human rights in ASEAN and the Continent as a whole. It could also be remembered as a hollow gesture which fails to address serious human rights violations throughout the region, making ASEAN an association whose words are not matched by deeds. We urge the ASEAN Leaders to rise to the occasion and issue clear instructions to ensure that a proactive, expert, dedicated human rights body applying international law and standards emerges from the Summit. SAPA TF-AHR was established during the first Regional Consultation on ASEAN and Human Rights in Kuala Lumpur on August It is a network of more than 70 civil society organisations from the region which aims to hold ASEAN member states accountable to their international and domestic human rights obligations and to make the ASEAN human rights mechanisms independent, credible, accountable and effective. ASIAN human rights defender ASEAN urged to set up human rights court Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN and Human Rights Editor s note: Below is the civil society s statement on the need for a human rights court for the ASEAN Intergovernmental Commission on Human Rights (AICHR) issued on 25 August 2009 by Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN and Human Rights (TF- AHR). Asian civil groups have called on ASEAN to commit to a regional human rights mechanism that includes a regional human rights court. In their Political Declaration to the Terms of Reference of the ASEAN Inter-Governmental Commission for Human Rights (AICHR), the group led by Solidarity for Asian Peoples Advocacy Task Force on ASEAN human rights urged ASEAN to openly pledge that it is committed to develop protection mandates for the Commission. In their Political Declaration to These protection mandates, according to SAPA-TFAHR is sorely lacking in the adopted official TOR of the AICHR. They include complaint mechanisms, country visit and periodic review of human rights situations. In an open letter addressed to the ASEAN chair and High Level Panel (HLP) today, SAPA TFAHR said that the development of a full fledged regional human rights mechanism, including conventions, commissions and a human rights court, should be in line with international standards and should not take more than 10 years to establish. The Political Declaration must recognise that the lack of independence and protection mandates in the AICHR are some of the biggest flaws in the TOR. As a long term guiding document for the AICHR, it must set a direction for the Commission to be independent and have protection mandates which will eventually establish a full fledged regional human rights mechanism, complete with conventions, commissions and a human rights court that are in line with international standards in a reasonable time frame, said Yap 13

14 Swee Seng, executive director of Asian Forum for Human Rights and Development, based in Bangkok. The operation of the AICHR, added SAPA-TFAHR should be guided by the principles of non-discrimination, equality, accountability, transparency and participation. We are however extremely concerned with this talk of an evolutionary approach by ASEAN. There are existing international human rights standards. We have to start from there - nothing below those standards is acceptable. Evolution to develop protection mandates and a full fledged human rights mechanism, may take 100 years, or may only need 10 years, or shorter. We are saying let s set a time frame, the sooner the better, but should not be more than 10 years, said Rafendi Djamin, the co-convener of the SAPA-TFAHR who co-signed the open letter to the HLP with Yap. The HLP was tasked by ASEAN Foreign Ministers to draft the Political Declaration after the official adoption of the TOR of AICHR on 20 July 2009 during the 42nd ASEAN Ministers Meeting (AMM) in Phuket, Thailand. The announcement of this Political Declaration together with the names of the appointed representatives to the AICHR is expected to be inaugurated during the 15th ASEAN Summit on October 2009 in Hua-Hin, Thailand. Rafendi Djamin said that the launch of the AICHR could mark a turning point for human rights in ASEAN and the region as a whole. He urged ASEAN to take this opportunity to right the wrongs in the TOR of AICHR. The AICHR should not be remembered as a hollow gesture which fails to address serious human rights violations throughout the region, making ASEAN an association whose words are not matched by deeds, added Rafendi. SAPA TF-AHR was established during the first Regional Consultation on ASEAN and Human Rights in Kuala Lumpur on August It is a network of more than 70 civil society organisations from the region which aims to hold ASEAN member states accountable to their international and domestic human rights obligations and to make the ASEAN human rights mechanisms independent, credible, accountable and effective. Photo: Thai News Agency (TNA) 14 Vol. 5 No. 2 September 2009

15 ASEAN framework instrument for migrant workers must be legally binding Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN Migrant Workers ASEAN needs to change its mindset and perceive civil society as a partner in all its processes, especially in the drafting of the association s Framework Instrument on the Promotion and Protection of the Rights of Migrant Workers, said a regional human rights group during the 2nd ASEAN Forum on Migrant Labor, hosted by the Thailand Labor Ministry and ASEAN secretariat in Bangkok. The Task Force on ASEAN Migrant Workers said We applaud this initiative and we hope that this kind of stakeholder dialogue can be sustained, expand its participation and to be institutionalized within ASEAN. This process is very helpful in building trust and confidence to achieve the people-centered ASEAN. Sinapan Samydorai, the convener of the Task Force (TF-AMW) added that millions of migrant workers are seeking a better future for themselves and their families by working abroad in ASEAN, and as economic integration intensifies leading to the full economic integration of ASEAN by 2015, this number will grow. Moreover, the Instrument, an agreement by ASEAN member countries should be legally binding, in line with the new ASEAN Charter which has given the organization a legal identity. The theme of the two-day forum is ASEAN Declaration on Migrant Workers: Achieving its Commitments. It aims to move forward to achieve the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. The forum, said to be ASEAN s first broad-based consultation on labor migration issues, also aims to build trust and confidence through social dialogue among the various stakeholders. Its participants included civil society organizations, trade unions, employers associations, national human rights institutions, governments, international and regional organizations and the ASEAN secretariat. This event is a prelude to the 3rd ASEAN Forum on Migrant Labor planned for 2010 in Vietnam as the next chair of ASEAN. In view of the current developments, Sinapan said A new and fair deal is urgently required for migrant workers in ASEAN by drafting and implementing the ASEAN Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers. We would be much appreciative if the ASEAN Committee on Migrant Workers [ACMW] members start to make reference in their deliberations to the civil society s proposal on the ASEAN Framework Instrument for the protection and promotion of the rights of migrant workers, he added. However, we thank the ASEAN Secretariat for distributing copies to members of the ACMW at the SLOM. Three countries informed us they received it and used it in the negotiation. We also appreciate the Thai Ministry of Labour initiative to distribute copies of the proposal to all participants at the 2nd ASEAN Forum on Migrant Labour, said Sinapan. The platform of more than 60 organizations working on migrant workers issues in ASEAN also urges that ASEAN shall pay serious attention to recognize the migrant workers rights, fully protect the rights of all migrant workers especially those who are in vulnerable employment, regularize their status, and lower the costs of legal migration. TF-AMW calls for ASEAN member countries to include all migrant workers and their families ASIAN human rights defender 15

16 in the coverage of the ASEAN Framework Instruments. Further more, the task force calls for better monitoring and evaluation system to ensure that the ASEAN Framework Instrument is effectively implemented. The Task Force on ASEAN Migrant Workers was established at a consultation held in Singapore in April The Task Force is composed of civil society organizations, trade unions, community groups and migrant associations. Background TF-AMW has submitted the proposal to the ACMW members and ASEAN Secretariat in May 2009 during the Senior Labour Officials Meeting (SLOM). The civil society s proposal to the ASEAN framework instruments has comprehensively listed 192 recommendations covering the: 1. Obligations of receiving states; 2. Obligations of sending states; 3. Joint obligations of receiving and sending states; and 4. Commitments by ASEAN. This extensive document is a result of the 8 national consultations and 7 regional consultations from 2007 to 2009 involving more than 1,000 civil society participants in 8 member countries of ASEAN. The civil society ASEAN framework instrument proposal emphasizes on needs for a) an agreement to protect migrant workers rights and ensure that they are treated with dignity and respect, and b) harmonization of national laws to correspond to ILO core labour standards, fundamental freedoms and rights at work. The 2nd ASEAN Forum on Migrant Labor s recommendation covers the scope and coverage of rights and timeline for the drafting committee to finalize the draft which will be put forward to the annual meeting of the ACMW which will be held in Thailand in the last week of September The ASEAN Declaration on the protection and promotion of the rights of Migrant workers recognizes their sufferings and calls for: Article: 8. Promote fair and appropriate employment protection, payment of wages, and adequate access to decent working and living conditions for migrant workers; Article: 9. Provide migrant workers, who may be victims of discrimination, abuse, exploitation, violence, with adequate access to the legal and judicial system of the receiving states. Burmese migrant workers take the lowest paying and most dangerous jobs in Thailand. (Photo: The Irrawaddy) 16 Vol. 5 No. 2 September 2009

17 ASEAN must promote Indigenous peoples rights according to UNDRIP UNDRIP is the United Nations Declaration on Indigenous Peoples launched in Geneva in This statement by Indigenous groups for Indigenous Peoples has been circulated for endorsement since February We welcome the establishment of an ASEAN human rights body as stipulated in the ASEAN Charter (2007) and we acknowledge the openness of the High Level Panel to recommendations and expertise from civil society, including indigenous peoples. We acknowledge also the support of the ASEAN member states to the adoption of the UN Declaration on the Rights of Indigenous Peoples. We recognize that the adoption of the Declaration precedes the establishment of the ASEAN human rights body and provides ASEAN member states with an opportunity to apply this instrument as part of the normative framework for the regional human rights body. In this spirit we provide the following broad recommendations for the regional human rights body: We call for the establishment of an ASEAN Commission on Human Rights as the new regional human rights mechanism as an independent body composed of independent experts appointed for their integrity, impartiality, professionalism, commitment and competence in human rights As a Commission, this body shall be above the community councils of ASEAN and shall have its own Secretariat with sufficient resources to carry out its mandate. The purpose of this Commission is to promote and protect the human rights and fundamental freedoms of all pursuant to Article 14 of the ASEAN Charter Towards this purpose, the Commission will have a dual mandate of promotion and protection of the human rights of the peoples of ASEAN member states and both aspects of the mandate will be treated with equality at all times The human rights of the peoples of ASEAN are based upon the existing international human rights standards, including inter alia the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and including treaties and agreements signed by ASEAN member states The UN Declaration on the Rights of Indigenous Peoples embodies the minimum standard for the protection and promotion of the human rights of indigenous peoples. Further, the Declaration does not set forth new rights but simply affirms the extant rights of indigenous peoples as confirmed by existing international instruments and norms To fulfil its mandate the Commission shall: 1. Monitor the human rights situation within ASEAN 2. Promote the ratification of other human rights instruments, including ILO Convention Prepare regional reports on human rights 4. Conduct studies into thematic areas of concern, with a focus on trans-boundary human rights issues 5. Receive and consider reports from member states 6. Receive, review and decide upon complaints 7. Establish a mechanism to respond to urgent and serious emerging human rights issues 8. Establish sub-commissions and other bodies as required to address areas of specific concern, in particular it shall establish a Sub-Commission on Indigenous Peoples which shall fulfil tasks not limited to the following: ASIAN human rights defender 17

18 a. To promote the rights of indigenous peoples in accordance with UNDRIP b. To conduct studies into the concept of indigenous peoples in the ASEAN context in accordance with the principle of selfidentification. The composition of the Sub- Commission on Indigenous Peoples shall be independent experts with a majority of sitting members being indigenous experts at all times. The General Provisions of the ASEAN Commission on Human Rights shall ensure that no part of the constitutional treaty shall prejudice the rights of any individual or community as protected by international human rights law nor prejudice an individual or community s access to other human rights mechanisms Finally we support the proposals of the Solidarity ASEAN Peoples Assembly which further elaborates key elements of the recommendations provided here. As indigenous peoples we remain committed to the promotion, protection and realization of human rights and fundamental freedoms, including the collective rights of indigenous peoples. Shadowy interior of a Penan home, Indigenous in Sarawak, Malaysia. (Photo: Sofiyah Israa) Civil society meets working group on the establishment of the commission for women and children As part of the drafting process of the Terms of Reference (TOR) of the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), a dialogue between CSOs and members of the Working Group (WG) that will work towards the establishment of ACWC was held in Bangkok on 17 August Hosted by the Ministry of Social Development and Human Security of Thailand, the dialogue was participated by 21 national and regional CSOs. During the consultation, CSOs provided their views and recommendations on what should be incorporated in the draft TOR. They expressed appreciation to the WG-ACWC on the initiative to involve them in the drafting process and hope that their participation in the drafting process would continue to ensure that the final TOR reflects their voices and concerns. During the dialogue, Prof. Vitit Muntarbhorn, Thailand s alternate member to the High Level Panel (HLP) on the ASEAN Human Rights Body, gave a presentation on the TOR of the ASEAN Intergovernmental Commission on Human Rights (AICHR) which was recently endorsed at the 42nd ASEAN Foreign Ministers. He also shared his thoughts on the draft TOR of the envisioned ACWC. The WG-ACWC considered the inputs given by CSOs and Prof. Vitit when reviewing the TOR of the ACWC during its 2nd Meeting on August 2009 at the same venue. This article was first publish in the ASEAN Secretariat website: 18 Vol. 5 No. 2 September 2009

19 Burma: A benchmark for ASEAN s success or failure Solidarity for Asian People s Advocacy (SAPA) Task Force on ASEAN & Burma As ASEAN moves towards regional integration, Burma will continue to serve as a benchmark for its success or failure. Since the ASEAN Charter came into force at the end of 2008, the regional body and its member states have responded to Burma s ongoing crisis with progressively stronger rhetoric. While it remains to be seen whether this signals a realisation that years of noninterference and constructive engagement have failed, these strong statements should be acknowledged as a step forward. Most of ASEAN s recent efforts have focused on the continued detention of democracy leader Daw Aung San Suu Kyi. This is admirable, but this issue is just the tip of the iceberg. If ASEAN wants to demonstrate its credibility to the international community, it must take critical measures to address all of Burma s serious breaches of the ASEAN charter including the continued detention of 2160 political prisoners, the upsurge in systematic human rights violations against ethnic civilians, and the regional instability caused by its coercive and highly volatile approach to consolidating power in the lead-up to the 2010 elections. While it is easier to muster political will around the latest news splash, ASEAN should use its new charter as a guide to deal holistically with its problem child. Burma s civil society groups are calling for ASEAN to make a full shift to critical engagement with Burma. In doing so, ASEAN should make it clear that the regime s threat to regional peace and security, which stems from its coercive attempts at democratisation, is unacceptable. Furthermore, the regional bloc should put its support behind opposition groups historic Proposal for National Reconciliation, and ensure that key benchmarks are met on such a path. Ensuring that ASEAN addresses Burma s serious breaches of the ASEAN Charter It now seems likely that, in one way or another, Burma will be on the agenda of the 15th ASEAN Summit in October The key issue, according to the Task Force on ASEAN and Burma (TFAB), a newly formed network of civil society actors from Burma, is for regional leaders to move beyond discussing the latest hot topic, and to address all of Burma s serious violations of the ASEAN Charter at the Summit. TFAB advocated this position at the time of the ASEAN Ministerial Meeting (AMM) in July, recalling the charter s provision that, in the case of serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision. At the Summit, there may be a temptation to focus on the most newsworthy issues, at the expense of neglecting the big picture of the crisis in Burma. Around February s Summit, a major story spotlighted in the news was the plight of the Rohingya, who, denied basic human rights in Burma, are subject to continued persecution as they flee to Thailand, Bangladesh, and Malaysia. At the time of July s AMM, U.S. Secretary of State Hillary Clinton highlighted two then-current news stories making headlines around the world the sham trial of Daw Aung San Suu Kyi and the burgeoning relationship between North Korea and Burma. While all of these are key issues that need to be addressed, it is absolutely crucial that ASEAN muster the political will to critically engage Burma s regime with respect to all its serious breaches of the ASEAN Charter. Since ASEAN s new charter came into force at the end of 2008, Burma continues to be in flagrant violation of several fundamental principles, most significantly (1) ASIAN human rights defender 19

20 adherence to the rule of law, good governance, and democracy (2) respect for fundamental freedoms, human rights and social justice; and (3) collective responsibility in enhancing regional peace and security. Many of the most recent violations of these principles have been tied to the regime s unilateral approach to securing power in the run-up to its 2010 elections. Burma s 2010 Elections: Roadmap to Democracy or Roadmap to Civil War? Some of the most recent critical violations of the Charter result from the ruling State Peace and Development Council (SPDC) s attempts to destroy the opposition in preparation for the upcoming elections in The regime s so-called Roadmap to Democracy is far from a transitional plan; in reality, its policies have resulted in the continued detention of key opposition leaders, and the use of scorched earth tactics to render ethnic armed and ceasefire groups powerless. In his address to the UN Security Council following a visit to Burma, Secretary General Ban Ki-moon urged the regime to create conditions conducive to credible and legitimate elections, but opposition groups, including Daw Aung San Suu Kyi s party, the National League for Democracy (NLD), point to his failure to mention one key precondition for legitimate elections a review of the undemocratic constitution singlehandedly adopted by the regime in The 2008 constitution was formed in an exclusive and secretive manner, with the junta handpicking candidates to draft the constitution, and restricting participation from civil society and democratic opposition. In May 2008, the junta proclaimed their highly suspicious constitutional referendum a success, claiming that the constitution had been endorsed by 94.4 percent of voters after a 98.1 percent voter turnout. Even if international monitors were to ensure a free and fair election, the substantive flaws of the constitution would certainly bar true reconciliation and democracy. On numerous levels the military will still have overriding command in post-election Burma. The 2008 Constitution reserves 25 percent of Parliament, the seat of the President, and key ministries for the military. It also denies federalism, a key demand of the pro-democracy and ethnic nationalities rights movement, including ethnic ceasefire groups. Even if Daw Aung San Suu Kyi were to be given amnesty, a constitutional provision barring candidates married to foreigners would prevent her participation. The constitution is not structured for transition or democratisation, and any future amendments would effectively require the stamp of the military, making post-election political progress extremely difficult. The regime is doing everything in its power to prevent a repeat of the 1990 elections when democratic political parties, including the National League for Democracy (NLD) won an overwhelming majority of the seats in parliament; they were consequently barred from ever taking power. This time around, the SPDC is taking multiple precautions to ensure victory in the 2010 elections, even if it means putting key military members in civilian clothing. ASEAN must not provide diplomatic protection to the regime as it pursues its highly problematic Roadmap to Democracy. Instead, it should call for the following minimum preconditions for a democratic election: the release of all political prisoners, a review of the constitution, and the participation of Daw Aung San Suu Kyi, the NLD, and ethnic groups in the elections. Renewed scorched earth campaigns in Eastern Burma In an attempt to reclaim control of its border areas before the elections, the SPDC has combined both divide-and-rule and scorched earth tactics, with devastating consequences for ethnic civilians. These actions are a continuation of long-held policies, which have destroyed over 3,300 villages in Eastern Burma in the last ten years. At the end of July, the military regime renewed its scorched earth campaign in central Shan state, driving more than 10,000 Shan villagers from their homes, arresting and torturing over 100 villagers. A month earlier, the regime began an upsurge of attacks in Karen state, in an attempt to obliterate Karen opposition before the 2010 elections. The offensive caused over 6,400 people to flee for safety along the Thai-Burma border the latest wave of ethnic refugees fleeing from the military s atrocities. The attacks, which were jointly coordinated by the SPDC and its proxy force, ceasefire group the Democratic Karen Buddhist Army (DKBA), were in accordance with the SPDC plan of transforming the DKBA and other ethnic ceasefire groups into a border guard force before the 2010 elections. This latest offensive involved the forced recruitment of over 800 soldiers, forced portering, the use of human minesweepers, and the torture and killing of civilians. Burma s threat to regional peace 20 Vol. 5 No. 2 September 2009

21 and security Burma s pro-democracy and ethnic rights activists have long been predicting regional instability as a result of the regime s attempts at democratisation through coercion and domination. As the countdown to the elections begins, we are seeing these predictions manifest. A demonstrable case is the collapse of two decades of ceasefire agreements between the junta and northern ethnic armies at the end of August. Renewed fighting in Northern Shan state between the military and the ethnic Kokang army caused approximately 30,000 civilians to flee to China, the largest wave of refugees in years. The Kokang army is just one of several ethnic ceasefire groups refusing to capitulate to regime pressure to be transformed to a border guard force. The SPDC s ultimatum to key ethnic ceasefire groups to surrender control of their forces will no doubt provoke even further armed conflict. In an ironic twist, the regime s long-time ally China is now bearing the brunt of these disastrous consequences. Another frightening development is the strategic relationship between Burma and North Korea, with recent reports suggesting the latter may be assisting the former to develop nuclear weapons; if proven true, this would constitute a clear violation of the charter s stated aims to preserve Southeast Asia as a Nuclear Weapons-free Zone. National reconciliation in Burma: a benchmark for ASEAN As ASEAN takes significant steps towards further regional coordination and consolidation, Burma will continue to serve as a benchmark for its success or failure. Since the ASEAN Charter came into force in December of last year, no actor has been in such flagrant violation of its principles as has Burma s military junta. In the regime s ongoing attacks against its own civilians, continued detention of Daw Aung San Suu Kyi and 2160 political prisoners, and systematic attempts to obliterate the opposition in preparation for its supposedly democratic elections in 2010, Burma is in serious breach of multiple provisions of the new Charter. Despite the lack of precedence for action following such violations, in its pursuit of legitimacy as a powerful regional bloc, ASEAN must show the international community that its new Charter carries force. Until now, ASEAN has seen its policy options on Burma in stark black and white terms isolation versus constructive engagement whereas the opposition movement has been calling all along for critical engagement. Burma s movement for democracy and rights for ethnic nationalities is united in calling for political dialogue leading to national reconciliation. In August, this unprecedented grouping of major opposition alliances, including the Women s League of Burma, the Forum for Democracy in Burma, and the Ethnic Nationalities Council, launched a formal Proposal for National Reconciliation, as an expression of its willingness to dialogue and cooperate with the regime for the sake of the people of Burma. This outstretched hand must be met with strong support from the international community, particularly ASEAN, if any progress is to be seen. ASEAN cannot continue its policy of economic engagement without a parallel responsibility for critical political engagement. Now it must recognize that it is in a unique position to take coordinated action Saffron-robed monks chant the Metta Sutta in central Rangoon during a September demonstration in (Photo: Myat Moe Maung/The Irrawaddy) on Burma by encouraging the regime to bring all stakeholders to the negotiating table and holding it accountable to key benchmarks in a process of true political dialogue and national reconciliation. It can begin by placing the issue of Burma s serious breaches of the ASEAN Charter on the agenda of the 15th ASEAN Summit in October. The Task Force on ASEAN & Burma is a network of civil society actors from Burma working to promote a peoplecentered ASEAN that is supportive to the cause of democracy, human rights, and peace in Burma. To find out more about TFAB contact TFABurma@gmail.com ASIAN human rights defender 21

22 Windows of opportunities to advance ESCR in Asia On July 2009, FORUM- ASIA organised the Asian Regional Consultation on Economic, Social and Cultural Rights (ESCR) in Bangkok, Thailand. For the purpose of this publication, five papers presented at the Consultation are featured in the following pages. The papers focused mainly on an overview of ESCR in Asia, and on holding business corporation, transnational companies, inter-governmental bodies and international financial institutions accountable to protection of ESCR in business, trade and finance, in the current global economic climate. In Asia, the struggles for the realisation of economic, social and cultural rights (ESCR) remains a huge challenge to many despite the rhetoric of many governments in the region prioritizing economic and social development over civil and political rights in their attempts often to ward off criticism on their human rights record. In countries that have ratified the International Covenant on Economic, Social and Cultural Rights - where FORUM- ASIA has members - Bangladesh, Cambodia, India, Indonesia, Mongolia, Nepal, Pakistan, Philippines, Republic of Korea, Sri Lanka, Thailand and Timor Leste, the respect, protect and fulfilment of the enjoyment of the ESCR remains much to be desired. In the last two years, the erosion of ESCR became even more acute with the global fuel price crisis in 2007 which led to the food shortage crisis and rising living cost in many parts of Asia, especially in the South Asia. This was then followed by the global financial meltdown that started from the United States in 2008 and spread like epidemic to the rest of the world causing millions of people losing their jobs. The challenge to advance and realise ESCR in this part of the region becomes even more daunting. Judicial enforceability of ESCR controversial On the other hand, climate change that led to increased global warming, extreme weather, diseases and epidemics outbreak and the rising sea level, is posing the greatest risk ever to human kind with vast impacts on the right to food, right to water, right to health, right to housing and ultimately the right to life. Millions of people are going to be displaced and lost their livelihood with many places and cities at the coastal areas to be potentially submerged under the water. Meanwhile, human rights defenders (HRD) and civil society organisations working on ESCR continued to face serious obstacles and challenges in advancing ESCR in Asia. The judicial enforceability (justiciability) of ESCR remained a subject of controversy in many Asian countries with perspectives denying the justiciability of these rights have been repeatedly shown to be far more reflections of misunderstandings than grounded in the status of human rights law. The United Nations Special Representative on Human Rights Defenders, Hina Jilani, in her annual report to the Human Rights Council highlighted the situation of defenders of economic, social and cultural rights. She rightly pointed out that ESCR defenders are usually effective mobilisers for public and collective action and precisely because of this power to mobilise, it often results in their persecution. According to the Special Representative, defenders of ESCR experience violations differently, particularly in their accessibility to protection and redress. They have a harder time getting their work accepted as human rights work and also find it more difficult to attract media coverage, and generally less attention is paid to the violation of their rights. She also highlighted 22 Vol. 5 No. 2 September 2009

23 gender perspective with regards to women HRD defending ESCR, such as land rights, natural resources and environmental issues; labour rights including trade union activities; motherhood, marriage and child rights; housing rights and forced evictions; the right to food and water; the right to health and the right to education, where violations affect women in different ways compared to men. Non-state actors must be accountable The role of non-state actors, such as armed groups and business corporations in relation to ESC rights is increasingly important in view of the continuous conflicts in many parts of the region on one hand, and the rapid economic development experienced in the region on the other. Holding nonstate actors and state actors to a conflict and business corporations accountable to ESCR violations has been an enormous task for many civil society groups in the region. However, there are also emerging opportunities to be gained by civil society organisations and community based organisations. The growing number of national human rights institutions (NHRI) in the region and the continuous work of Asian NGO Network on National Human Rights Institution (ANNI) to ensure the independence and effectiveness of these NHRIs provided a possibility to strengthen national mechanism for the protection and promotion of ESCR at the national level, which would be more accessible to HRDs and victims of ESCR violations. The recommendation of FORUM-ASIA to the Advisory Council of Jurist of the Asia Pacific Forum on National Human Rights Institution in 2008 for NHRIs to take up impact assessment study of development projects on ESCR is an illustration of the potentiality. Regional mechanisms and solidarity At the sub-regional level, ASEAN is in the process of implementing the Vientiane Action Programs , which includes the setting up of the ASEAN Commission on Women and Children and the adoption of a multi-lateral instrument on the rights of migrant workers by 2010, which would be binding on all ASEAN states. On top of this, ASEAN has also adopted the terms of reference (TOR) of the ASEAN Intergovernmental commission on human rights (AICHR), to be officially established by October 2009 and one of the main tasks likely to be the drafting of the ASEAN Political Declaration of Human Rights. However, the absence of sub-regional platform in North East Asia and South Asia subregions remains a huge challenge. Finally, at the international level, the adoption of the Optional Protocol of the International Covenant on Economic, Social and Cultural Rights represents a historic advance for human rights. The Optional Protocol is a complaint mechanism on ESCR issues to the UN treaty body, the Committee on Economic, Social and Cultural Rights and provides victims of ESCR violations who are not able to get an effective remedy in their domestic legal system with redress at the international level. The Optional Protocol opened for signature on 24 September 2009 in New York and it will come into force when 10 states ratify it. Photo: Chutamas Wangklon ASIAN human rights defender 23

24 Political economy of climate change Dorothy Grace Guerrero The largest ever ozone hole, detected on 3 September There are a few understandings regarding political economy of climate change and currently, there is no debate anymore whether they are from different sectors, for those in the science group, that climate change is here and that it is affecting us all. It is important to be conscious of which looking glass we are discussing climate change with. First, the climate crisis is, especially for many campaigners on this issue, not just about polar bears or the increasing numbers of extinct, disappearing species of flora and (Photo: NASA) fauna. But it is about life on earth as we know it. Because the earth can survive climate change, but how do we know that life on earth will be different. It s actually about survival, especially about the survival of the human species, and how we know life, how we live life. Second, the climate crisis is global. So, it has impact especially on the poor, because the climate change is also changing the ecosystem, where many poor people depend on for their livelihood and in many instances their very own existence. Third, climate change is caused by human activities. And these human activities are not equitable, it s not the human activity of everyone, but the human activity of a few people and international corporations, but now it s affecting us, especially the poor. In the ongoing discussion or the negotiations on climate change, what is very glaring is the argument that those who did not cause the problem should not be punished for it and should not pay for it. Fourth, because climate change global inequality is increasing, the impact on the poor and the rich will be different. And the impact on the more vulnerable areas, of course, will be more exasperated. Lastly, there are just and sustainable solutions to this climate crisis but we have to act now, because the more time that we delay, and the more time that we don t look for this just and sustainable solutions, more problems are accumulating. Climate change and greenhouse gases This presentation centers on the fact that the climate crisis is caused by the way we handle the economy, 24 Vol. 5 No. 2 September 2009

25 the way we understand the economy. The way many countries and many governments view development is a failure, it s a big myth. The Sustainable Development Commission s report of March 2009 wrote, The myth of growth has failed us. It has failed the 2 billion people who still live on 2 dollars a day. It has failed the ecological system on which we depend for survival. It has failed spectacularly in its own terms to provide economic stability and secure people s livelihoods. In short, climate change is caused by the increase in greenhouse gases, which is trapped in the environment causing our planet to warm. Climate change is caused by human activities, and these causes are coming from three points. One is the way that goods are produced; the way that we understand production is very problematic. And second, the consumption patterns and lifestyle of the North and elites in the South (it s not just a North-South divide, but also the differences between the lifestyles of the rich and the poor in every country). For example, the emission level of Bangkok is as high as New York, as high as Manhattan, which is quite shocking for a developing country like Thailand. And thirdly, the operations of development institutions and transnational corporations are causing a large amount of these greenhouse gas emissions. In terms of development institutions, I am referring here to international financial institutions like the World Bank and the International Monetary Fund, the Asian Development Bank; all these regional development banks that are funding very problematic projects, especially those that pertain to extracting materials and resources from the ground, and also even the projects like dams are very destructive to the environment. Carbon footprints of countries vary If we talk about the proportion of the historic carbon dioxide emissions of countries, you will see a very stark difference in terms of distribution on how much is being used by the rich and the poor. For example, if you look at the size of Europe and the former Soviet Union, you can see that they are using more than what is appropriate. And in countries like Africa and Asia, that includes China and India, the countries with the biggest populations, have a disproportionate history of carbon dioxide emission. For example, this will impact poor regions, on two levels: water stress or the existence of portable water. In Asia, Africa and Latin America by 2020, a number of people will experience water stress: about 120 million to 1.2 billion in Asia, 12 to 81 million in Latin America and 75 to 250 million in Africa. It is a known fact that in many countries, for example countries like China, water is already a problem there and it will continue to be a problem as years go by. And in terms of yield reduction in agriculture, this is the estimate, that there will be a 30 percent decrease by 2050 in Central and South Asia, 30 percent by 2080 in Latin America and 50 percent by 2020 in some African countries. This also shows that impact to different regions varies due to environmental realities or ecological realities in different regions in the world. When we talk of the impacts to development there are many long term results on climate crisis. First is the threat to local livelihood, which would mean increase in poverty, inequality and vulnerability. Second, national budgets will be diverted to disaster relief and prevention, refugee management, and financing adaptation which will divert economic resources from economic and social development. How countries allocate their budget is already problematic. For example, there is already a problem in the Philippines, where the national budget is already disproportionately allotted, how much money is allotted to the military in contrast to education, infrastructure or health. This will become an even bigger problem when these resources need to be allocated to mitigation or adaptation of climate change. The third point is it will threaten poverty alleviation and achievement of MDG targets. In the last years, for example, China was already saying that there are 400 million people waiting for the poverty level to better itself, for better conditions of living, but with climate change it is expected in many countries that there will be a rollback, those who got out of the poverty trap, will go back into poverty because of the problem. Danger of new technologies Many solutions have further development implications, for example when we talk of the linkage between climate negotiations and trade negotiations, there is now a climate cap on trade, so that would mean that the development of many developing countries could be hindered. When we talk about the reduction of emissions, the fact that the South is being pressed to reduce its emission, which it should do, but the question is who should reduce first and to what level? This is a big question. In the ongoing United Nations Framework Convention ASIAN human rights defender 25

26 on Climate Change negotiations, it is very clear that the negotiation is very biased against developing countries. In economic terms it is kicking out the development ladder, in ecological terms it might mean stopping the development of development countries. And lastly, there are a lot of companies, there are a lot of think tanks, that are spending a lot of time, energy and resources on coming up with new technologies. But many of these new technologies might be dangerous. At the least it might be inefficient, at the maximum it might turn out be dangerous to the environment as well. I want to share this quote, Contemporary capitalism and habitable environment cannot coexist. And this is not coming from a Marxist scholar, but it s from James Gustave Speth, who is the Dean of the Yale School of Forestry and Environmental Studies. All governments see growth in their GDP as their primary task, so this is perceived as a primary measure of progress. We talk of the climate crisis now, we can no longer believe in that, or we should stop looking at the GDP growth as an indicator to development. Second, belief that the economy grows by creating and promising to fulfil your desire or produce more goods should also end because growth can be seen, or development should be seen in a different way. Third, growing consumption creates job and businesses. There are many discourses now saying that there is a possibility for example, to create jobs; there is a new way to do economics. When we say we need to save the earth, what does that mean? Does it also mean saving capitalism? This is a big question, especially now when we have also a financial crisis, which is hitting everyone. Some of the understanding now with both groups dealing with the climate crisis and the financial crisis is that unbridled growth will not pull the cord from poverty, because there is an environmental cost to this economic model that we are following. Technological fixes and business as usual will not catch up with the economic expansion, so we cannot do business as usual. Third, curbing addiction to profits will in many ways improve life is also another myth. The thing is that many of those that are critical to the way that we understand capitalism at the moment is that if capitalism is an individual, profit making and exploitation is in its DNA, so how can we solve this problem? Instead of looking at all these three, we should discuss on improving the art of living and what it means. Lastly, I would also like to say that it is OK if people also believe that they can help in solving the problem by their personal initiative, like normative alternative lifestyles. But sorry to say folks, that will not be enough. Collective environmentalism will be futile as long as our economic system is built on the assumption of growth. So again I am hammering this idea, the way we do economics. The system must be changed Those that are campaigning on this issue, we are saying that the economic and financial crisis has made it clear that the system must be changed. Therefore, when we look at the solutions we have to discuss this in terms of people s rights, in terms of economic justice, in terms of equitable and sustainable development, in terms of food sovereignty. There is a group, which I am a part of, which my organization is a part of is a group, an alliance of Climate Justice Now network. We believe in five things. One is that the burden of adjustment of the climate crisis must be borne by those who have created it, meaning the annex one countries and the rich, and not by those who have been least responsible, meaning the poor. Second, a just solution to the climate crisis must confront the problem of over consumption in the North and also amongst the elite in the South. Third, the climate crisis was caused by the paradigm of capitalist development. Fourth, Northern governments must commit themselves to radical mandatory cuts in greenhouse gas emissions. Fifth, land, water, forest, energy, the atmosphere, labor must not be privatised, commodified and traded. How to get out of the crisis depends on mentality and the balance plus power. In many discussions this may not be popular. When we discuss the climate issue, it is also a class issue, since it is a political economy issue. The movement must also address the national, regional and global levels, since the problem is global. Dorothy Grace Guerrero is from Focus on the Global South based in Bangkok, Thailand. This paper was presented at the Asian Regional Consultation on Economic, Social and Cultural Rights, in Bangkok, from July Vol. 5 No. 2 September 2009

27 Holding business corporations and transnational companies accountable to ESCR violations No-hyun Kwak The industrial sector is highly human rights sensitive; any person in the business field should have a heightened sensitivity to human rights. Otherwise they tend to be unnecessary or unintentional or in some way complicit accomplice in the violation of human rights in the course of doing business activities. Of course there are heavily human rights sensitive businesses such as clothing, fruit labor and furniture sweat shops. And these days as the Google case indicates, the total industry have a lot to do with freedom of expression and privacy. Considering the enormous influence in power, it is too important for business to be left in the wilderness, to be bypassed or ignored in the human rights community. As a major organ of society, using the language of the Universal Declaration of Human Rights, businesses should be nurtured to become a very capable partner in the duty of protecting and promoting human rights. With this kind of notion as background, the international human rights community including the United Nations human rights mechanism tries to act proactively in favor of rights in business. Voluntary approach too soft The UN global compact principles, related to responsible investment, are specifically designed to apply to financial institutions. John Ruggie is the UN Secretary General Special Representative on business and human rights. We call it UNSGSR and John Ruggie is the champion of the so-called voluntary approach to this issue, even though there is much skepticism around his own approach, because it is too softened. The voluntary or the self regulating approach which is represented by the voluntary multistake holder initiatives is prevailing now. And that trend is represented by the presence of John Ruggie, the In front of the headquarters of the Pohang Steel Company (POSCO) in Seoul, civil society organisations in South Korea demanded that the company take responsibility for the violence against villagers in Orissa, east India, on 19 February Orissa s authorities, who have an agreement with the company, forced the villagers to evict. (Photo: ASIAN human rights defender 27

28 professor of Harvard. There is a famous OECD guideline on multinational enterprises; it was amended in 2000 to incorporate some more stringent human rights clauses and to create so-called national contact point to deal with the complaints about the behavior of companies which has OECD origin. Among the countries represented here (in the Consultation) perhaps Korea is the only OECD country. So whenever Korean corporations are violating human rights, then you may bring it to the attention of the organization I represent, which is Korean House for International Solidarity for Human Rights and Peace (KHIS). We would file a complaint with the Korean national contact point (NCP) for the OECD guidelines, which happens to be a department in the Ministry of Knowledge Economy. So it is completely controlled by the government, not the independent mechanism consisting of multistakeholder groups, like in the UK, Netherlands, they reformed the NCP process totally to reflect all the multi-stakeholder interests duly represented. But Korea has still failed to do so and it is heavily criticised even in the OECD countries for not having realigned the national contact point. Mainstreaming business and human rights I think rights in business are now in the mainstreaming process, it s not in the ideation process stage, it s not in the simple advocacy stage, and it s now into the mainstreaming process. We officially have action guidelines, self-diagnosis, checklists, reporting frameworks, consulting forms and we review companies CSR or SRI socially responsible investment. Review companies, you know the name of the Moody s and Standard & Poor s, and that is credible review company. While there is financial data review company, we need non-financial data review companies as well. There are Corporate Social Responsibility review companies such as Thompson International at the national level. All these indicate that business and human rights is now high on the agenda in the mainstreaming process. There are hundreds of global corporate practitioners in human rights reporting beyond the sustainability report. There is a process called management process; at the end of that process there is vulnerable people, first workers, second consumers and third community residents and especially when the indigenous peoples are involved, then there is a greater risk of human rights violations. The first category of people who are affected by corporate behavior are so-called people under corporate spheres of influence, which is most represented by the supply chain, meaning, suppliers and contractors. You have certain influences on your contractors and suppliers and you may use that influence in promoting human rights or in suppressing human rights. The jurisprudence is of course that each and every business should exert its influence in favor of human rights. In the case of workers in the supply chain, it means human rights, working rights and safety rights stay. Virtually all the rights enumerated in the universal declaration to international covenants can have application in the business context. Because the affected groups are workers first, consumers, community residents in the supply chain, the rights at stake are workers rights, such as the right to work, freedom from unjust dismissal, or right to safe and humane working conditions, right to form or join labor unions, right to engage in union activities and in strikes, and right not to be discriminated against in employment. Consumers rights mostly involve the consumer right to safety and life. Community residents rights are mostly about right to water, right to food, right to housing, and right to health. For right to health, in addition there is water pollution, testing of new medicine, medical experimentation; all those things should be regulated in terms of human rights. So the rights affected by business activities are endless and are all inclusive. The kinds of rights I mentioned just before are the main categories of rights that are vulnerable to corporate behavior. Approaches to business accountability How do we tackle the human rights violations committed by business people and how to secure corporate duty to respect human rights or how to hold companies accountable to their rights implications and rights violations? There are two approaches, one mandatory approach and the other voluntary or self-regulating approach. The mandatory approach has a number of advantages; first it has universal application within national borders, within the region or within the globe. It treats alike oranges and lemons, but voluntary approach always avoids the lemons, always avoid voluntary approach; the better becomes better and the worse becomes worse. That is the nature of the voluntary approach. At least in short and medium time, in the long run everybody will change, but in the short and medium term the voluntary approach is at a cost. 28 Vol. 5 No. 2 September 2009

29 The voluntary approach has its own cost, the mandatory approach has its own cost as well; it tends to be minimalist or has minimal common denominators; it tends to be focused on such things because it is mandatory and it is a burden to the company. But I seldom buy this kind of theory; we now take it for granted for all companies to publish financial statements. From the viewpoint of the ailing companies to publish their exact accounts is like bringing death; the regular customers will go out and the money will not come in, but still they are obliged to do so because of the mandate, because law requires it. Likewise non-financial data is only as costly as financial data and nonfinancial data such as human rights data is also necessary to manage and control business risks. There is a simple word for it; it is the business case for respecting human rights; business case for human rights means the business calculation, the reasons for respecting human rights which is about cost calculations. The mandatory approach is mostly in the form of domestic laws and regulations, and that is far away, even though there are many regulations, it is a wholly different matter for those regulations to be implemented on the ground. Intra-company level to tackle corporate violations Let s start within the company to feel its corporate behavior. Who is the natural candidate for monitoring business behavior in terms of the human rights record? The first candidate would be the workers union, the labor unions and on the other side of the governance structure there is a board of directors. So the company can appoint one director. And then we can use the mechanism of the shareholder resolution. Who are the shareholders now in big business? The institution investors, all national pension funds and all financial institutions. And as institutional investors they have power, means and capacity. As shareholders who are responsible and conscious and mindful about social implications of corporate behavior; if they find some corporate behavior distasteful or against law then they can use the shareholder meetings as a forum for voicing their concern, in the form of submitting a shareholder resolution. This also requires some corporate law reform. Corporate law reform is redefining the director s duty and the shareholder s power. So business and human rights is very closely related to corporate law reform, beyond the business regulations on environmental and social grounds. This is the intra-company level and of course there are intra-company level ways of tackling corporate violations of human rights through the intra-company grievance or complaints handling process. And then there is the human rights respecting management process. First we have to adopt the quarter conduct which includes the human rights clause. And then the training and education programs, reporting, evaluation and review process, feedback processes. And instead of the vicious circle, a good circle can develop inside the company. National contact point, a useful mechanism We also have the NCP process, so wherever the companies originating from the OECD countries is operating in the law the victim advocacy group can file a complaint to the national contact point of the home country under the OECD guidelines on multinational enterprise. That is a very useful mechanism so far and that is the only official mechanism available. And of course there is court litigation but court litigation is very costly and time consuming and confronts a myriad of technical difficulties because of the doctrine of separate legal entity, separate legal personality so it is very difficult to establish a probe or nexus between the company in the host country and the parent company in the advanced countries as the home country. I would like to emphasise the role of public corporations. Public corporations are so-called extended arms of government. They are something between the government and the private business market. The best way to start a campaign in business and human rights to monitor public corporations, especially public corporations doing business in foreign countries in oil and gas or the mining industries and in other human rights sensitive industries because it is far easier than to tackle public corporations rather than the private corporations. The first priority perhaps for us to do is to urge government to set some feasible guidelines on business and human rights for the conduct of business operations of the public corporations under governmental supervision. I think that should be the starting point, which KHIS is doing in Korea. We began to actively monitor the business activities of Korean oil and gas public corporations operating in Central Asia, Burma and other parts of the world. No-hyun Kwak is a representative of Korean House for International Solidarity for Human Rights and Peace (KHIS). ASIAN human rights defender 29

30 FTA is not just about trade, but human rights Charles Santiago ( The enormity of the number of free trade agreements (FTAs) governments signed on to is simply mind-boggling. There are two kinds of FTAs - bilateral FTAs and regional FTAs. Bilateral FTAs are like the ones between the United States, Malaysia, and Thailand for example. The regional FTAs are Europe, ASEAN, Japan, China and India. Currently, a discussion to be concluded by 2015 has been put on hold, which means that the EU, ASEAN FTA will not take place in the context of region to region but now has been moved from the region. ASEAN has these big tentacles all over the place, it wants to have market access to other economies of other countries in the world, but the European tentacles in terms of FTAs are in Central America, the Asian community, Africa, they are in the ASEAN, Korea and India as well. So this tells you that FTAs is just not something to do with ASEAN or Asia but also Europe. The whole point is it creates market access. But is it just market access? If one looks at the EU trade policy in Asia, very clearly it says: to pursue all actions necessary to open markets so that it can create a business conducive environment, or the business environment that is conducive to an expanding European trade and business. It is very clear what the Europeans have in mind, just as Asians have in mind. It is to promote business; to promote European business, not only in Europe but also in Asia. It is very clear the EU s trade policy which was put forth vis-a-vis this policy in 1994; it clearly spells out a business interest. What does an FTA do? So you have the European Union putting forth a proposal whereby they would like to go into other countries in order to facilitate the interests of their multinational corporations. More recently, this has been extended to what is called a Europe global policy, which is similar but much more advanced. What does an FTA do? It s about liberalisation, that means opening up the economy, it s about regulatory changes of your economy, country and region, it s about convergence and also it s about integration. There are four elements involved in any FTA discussion: liberalisation, regulatory changes, convergence, and integration. What this really means is that there is a need for a fundamental transformation of our countries and economies. A fundamental change which will require changes in domestic law, and harmonising the particular law for the whole region. In any FTA, many steps are involved, for example, your country changes its own law and the region changes its law consistent with the demands of the dominant partner and the foreign partner. The Europeans are very clear, the Americans are even clearer; you want to do business with us you play by our rules. And do you think our negotiators are saying no to that? They tell us how high we should jump. It s not about market access; it s about how you create that market access. The regulatory 30 Vol. 5 No. 2 September 2009

31 changes that the government has to make, that means your intellectual property rights will have to change in your country. This has impacts for Trips, medicine available, lifesaving trucks, and access to water. Laws to change for the big-boys For example one of the things the European wants from ASEAN is to liberalise the water sector and services sector for water. This has implications for health care, access to water for all communities, which are already having problems with access to water on a day to day basis. So now you have another layer of problems being introduced into the economy. Let me say this again, laws will have to change in all our countries, they will have to conform to what is required by the big boys Europe, America, Japan and now China as well as Brazil and India. Chinese, Indians and Brazilians have also become the big boys. So in a nutshell, an FTA creates an environment supposedly to promote market access between business players of different countries. But in so doing they have major ramifications on a day to day basis on the life of a nation, sovereignty of the nation, livelihoods of people, the availability of water, healthcare, electricity as well as the right to a job. FTAs have implications on the livelihoods of people. One example is Mexico in the context of the EU-Mexico FTA, including NAFTA involving Canada, the US as well as Mexico. This showed that a minimum of two million Mexicans have lost their source of income, which meant they are no longer farmers. Why are they no longer farmers? Because, cheap imports from Europe as well as from America are now flowing into Mexico and it s far more cheaper than what they can produce in Mexico. Therefore, there are no reasons for Mexicans to grow corn, for example. When people are out of jobs, it will lead to bankruptcy. There is a very interesting document, a report by the Thai Human Rights Commission on the FTA between the US and Thailand. Several NGOs had gone to the Human Rights Commission in Thailand and told them Hey, look we are quite upset with this thing, please do a human rights impact assessment on the US FTA and Thailand. And this is what they had to say. Negative consequences might be inevitable, Thai farmers will be forced to abandon farming. You see what s happening in Mexico and Thailand, similar things are happening in India as well as Africa. When you have players coming into your country with the same level of operation, you will not be able to compete with the cheaper farm products from the US. Workers rights will be trampled on There are implications for work as well. One of the oldest and least known bilateral FTAs is between the US and Morocco. No one knows about this because the business between the US and Morocco is negligible. But why have an FTA with a country where the economy and trade is negligible? It s for security reasons. But the point I want to make is this, in the Morocco agreement, the only agreement where the US has signed saying that it will ratify all ILO conventions both in the preamble as well as the chapter on labour, that as soon as this agreement is signed, the ILO standards will come into place. It means that there will be a monitoring mechanism which will be put into place to see whether the ILO standards are being followed or not. It was never done and there is a report that says that one of the worst violations in the world actually took place in Morocco during the time of the agreement. If you look at the websites of these US-based companies that are pushing for the FTAs, it is clear that in the chapter on labour, the demand by the multinational corporations pushing for the FTA is reduction in the number of holidays and number of sick leaves, and it includes also telling the government to change its laws so workers can be fired much more easier- this is a requirement. This is what comes to the table for discussion and certainly we never hear about it, we hear about it three years after when ministers talk about it in parliament saying this is what we have signed, but it s too late. So worker s rights are being trampled, as well as farmers. Financial liberalisation is often considered good, but there are a couple of issues involved in financial liberalisation that we have to keep in mind. A study was done in Europe by a group call SOMO where they showed that in the context of EU and Mexico, five to six years after the agreement, European companies are now in control of Mexican banks and they actually control the kind of lending that took place in Mexico itself. The people who were discriminated against were homegrown small and medium industries. This has implications for development and autonomous policy making of a government. Therefore, national sovereignty comes into play. So you have a situation now where the government says hey guys, please lend money to our smaller industries, but the guys controlling the banks says no, these small guys are risks, we don t want ASIAN human rights defender 31

32 to give them money, we only give to people who have the potential to pay us back. When big banks in terms of FTA go into a country, it is the small and medium industries that will suffer. This has issues for development, policy making and national sovereignty. FTAs not just about trade The next implication is on healthcare. What is clear and this point is noted by the Human Rights Commission of Thailand in making its position on the US-Thailand FTA, is that the cost of medicine will be expensive. And as a result of that, lots of people who will need medicine might not be able to have access to medicine. Both the international covenant on economic, social and cultural rights as well as the international covenant on civil and political rights actually obligates governments to make affordable medicine available to people. States have the right to respect that right by removing all barriers. States must ensure that third parties like pharmaceutical companies do not threaten access to affordable medicine, so governments have a role to play, to protect the rights of people. But interestingly, with the FTA, governments are going to lose that right. In short, we have a scenario whereby our governments are going into agreements, through an FTA, essentially promoted by big corporations and big countries like the US, Japan, China, Europe, and so on in order for them to have market access in our economies. But for us, this is just not about market access; it violates our fundamental rights; the right to livelihood, the right to life, the right to medicine and the right to development. Therefore, FTAs are not just about trade, they are also about human rights. In terms of prescription, what we should do to make it difficult for governments, we should engage our human rights commissions to look and review and give their position on whether human rights are being protected, promoted and fulfilled by the government when they sign the FTA. I am not against FTAs if it is between Europe and America or between Europe and Japan, FTAs Andrew Weldon are perfect in two liberalised environments, two advanced economies. But it is totally unequal between a developed country and a developing country and less developing countries. Charles Santiago is a Member of Parliament for Klang (Malaysia), vice-chairperson of the Selangor Democratic Action Party, Director of Monitoring Sustainability of Globalisation, and Coordinator for Coalition Against Water Privatisation and Group of Concern Citizens. 32 Vol. 5 No. 2 September 2009

33 Say no to International Financial Institutions Chanida Bamford International financial institutions (IFIs) - World Bank, Asian Development Bank and the International Monetary Fund - have been promoting the developments in Free Trade Agreements (FTAs). Basically, IFIs have been in the forefront in pushing economic policies in the last 30 years that are gearing toward deregulation in favor of companies and businesses, and basically in favor of free competition in the markets, wherever the markets are. The goods and services market are related to trade liberalisation, the financial market, financial liberalisation. Deregulation is related to policies involving workers rights and any regulation that governs businesses in the countries. Three main types of policies are now still functioning; liberalisation, privatisation and deregulation. They are pushed by IFIs like the World Bank and IMF in the early 70 s and 80 s. The collapse of the financial market, which started in the US was due to over-leverage, pushing people into debts, which they finally could not repay. If you look at the source of the financial crisis now, it is actually the World Bank that was pushing us in this direction in the first place because they told developing countries that you cannot grow your economy without going into debt, actually to borrow money and get loans from outside in order to produce goods and services we can export to the global market. In that way you can earn income in terms of hard currency, foreign exchange, so then the government will actually have money to put into doing development work. Basically, the whole idea is that you have to go into debt in order to develop. And look at what happened to the people who have gone into debt, even the individuals in the US and the EU. And now look at what happens to us who have been using them as a market to export our goods in order for us to grow. Now the consumers in the US and the EU cannot afford to buy anymore goods because they ve gone bankrupt, they ve over-borrowed. So now the effect on us is that businesses lose, some have to close down, but also a lot of the workers have just been laid off it s as easy as that. The whole system is making us go into more and more debt and at the same time workers will have to live with the consistently low wages so that companies can make benefits and profit. That is what the company s existence is for making profit. One way of making profit is keeping the workers wages low. That s the easiest way because workers are under the sphere of influence. If we talk about the international financial institutions right now, they are the ones that keep coming back again and again about how we should grow our economy so that the final goal they say is to eradicate poverty. But before you can do all that you have to make the economy grow and that means you have to go into debt. Going into debt means using your future economy to do business and if the country loses, you can t even talk about eradicating poverty, you are bankrupt. What we have to look at now, in terms of how you hold the international financial institutions accountable for economic, social and cultural rights I don t think there is any way of doing it, except to say that the economic policies that have been promoted by the IFIs in the last 30 years are actually incompatible with economic, social and cultural rights. Go away, go home, no more conditions! How to hold them accountable? You have to say go home, go away, no more conditions on what policies we should have. We talk about sovereignty, that s the most important thing because all these economic policies are enforced by loan conditions. For example, IMF asked Thailand to change 11 laws when we had to borrow money in 1997, during the financial crisis which happened in Bangkok, the first country. We had to change the laws before we got the loans. All those were of course about liberalisation, privatisation, and deregulation. The economic policies they imposed simply caused more hardship to retrenched workers. Interest rates were increased, and people just went bankrupt; they had foreign debt they couldn t pay back. It s that kind of policy that took the Thai government eight months to negotiate one point alone - to lower ASIAN human rights defender 33

34 the interest rate. By the end of eight months, thousands of businesses collapsed. So these are powerful tools that they use. One way is to ensure that there are no loan conditions from the IFIs. We have to exert national sovereignty over economic policies. What kind of macro-economic policies that governments can do to actually promote economic, social and cultural rights? I would say forget IFIs, keep them away from us. But for our own government what kind of things should we be advocating? Economic policies of the government are also ruled by the same school of economists that sit in the IMF and the World Bank. The World Bank is 98% economists. These economists are in our governments as well. They say we need to give the private sector more room to maneuver because we need economic growth; we need to let them have a freer hand in terms of where they want to get the resources, how they want to produce and how much they are going to charge for their goods. But also, that means you leave them the choice of how much they are going to pay the workers. If this school of economics continues with the same economists who sit in the Ministry of Finance, the Central Bank and the Ministry of Commerce, you will never actually be able to meet economic, social and cultural rights because this type of economic policies are incompatible with protection of economic, social and cultural rights. Capitalism vs ESC rights If you go even deeper than that, businesses need growth, they need profit and the government s role is to promote growth. But governments unlike the IFIs have the responsibility of making sure that the people have better livelihoods and have their basic needs met through basic services. This means governments have to have revenue to put into spending, because there is no other way you have to have government spending to have the right to education, right to adequate healthcare and that which is in the ESCR. How do you balance this? This school of economists says that it is a tradeoff. If you want growth then you have to have less equity, if you want equity maybe the economy won t grow, and that s what the IMF says it s a tradeoff, you can either do one thing or the other. And we want equity and that s what the ESCR is for; equity of income, equity of access to healthcare, education, etc. There is an even deeper incompatibility when your economy depends on growing businesses, where you will not be able to meet economic, cultural and social rights. This is called capitalism, the system of production and consumption. Capitalism is incompatible with the protection of economic, social and cultural rights. We need to do more in terms of looking at alternatives. Do we need to have big businesses getting bigger and bigger? They go to developing countries like ours; they go and exploit other poor countries. Thai companies now go into Cambodia and Laos, saying we are helping you eradicate poverty; we are going to hire your farmers to grow these corns for animal feed so we can process it. Migrant workers affected Within these ASEAN free trade areas, where they are free flow of goods and services, a company can actually import corn produced in Laos for the animal feed in Thailand without paying duty, without paying taxes. So the current system is that free trade is really gearing towards growing businesses and making profit at the expense of the livelihoods of the people. Huge tracts of land in Laos and Cambodia are being given as concessions to companies, because they can carry out agriculture work more efficiently, producing more without regard to the farmers in the rural areas. In this system, no small businesses, small holders can survive and it is happening right now in developing countries. More regional cooperation is important. What we need is regional cooperation in an alternative way, which is not based on profit making businesses; it s not merely based on growth in the private sector. National and regional levels of cooperation are very important, they go together in this world where there are no frontiers, and money flows everywhere. Lastly, while money flows freely in the ASEAN free trade zone, goods flow freely, you don t pay taxes, but people cannot cross borders. This is the political part of it; it s really crazy, you can see the economic part of it, fine do whatever you want, free competition, freedom to exploit, but for people you have to remain in your place otherwise you get intimidated, put in jail if you cross the border. If you look at the effect of NAFTA, now the US has to put a fence thousands of kilometers between the US and Mexico because people are moving towards the US. When we were looking at the Thai-US FTA, one Thai economist said to me, look at the effect of NAFTA, the Mexican workers go to the US to work, but for Thailand we don t have a border with the US, so what do we do? Chanida Bamford is a representative from the Focus on the Global South, based in Bangkok, Thailand. 34 Vol. 5 No. 2 September 2009

35 Justice for Munir, justice for all! Indonesian protesters hold a poster of Munir Said Thalib during a demonstration outside the National Intelligence Agency (BIN) office in Jakarta September 7, 2007, to mark the third anniversary of the assassination of Indonesia s most well-known human rights activist, Munir Said Thalib. (Photo: Reuters) The statement was issued by Mugiyanto and Mary Aileen D Bacalso, chairperson and secretary general of the Asian Federation Against Involuntary Disappearance, on Munir 5th death anniversary. 7 September 2009 marks the 5th anniversary of the murder of the former Asian Federation of Against Involuntary Disappearances (AFAD) chairperson, Munir Talib Salim. It has been five years ago since our Federation received a text message about the sudden death of Munir. Incredible was the message we received about the death of a man who, at the prime of his life, was contributing to a large measure, to the cause of human rights and democratization process of Indonesia and in the rest of the world. More revolting was it to know, two months later, that the most courageous human rights defender of Indonesia was poisoned by a lethal dose of arsenic allegedly by elements of the military intelligence in Indonesia, the BIN. Five years have passed. While Pollycarpus, the Garuda pilot implicated for the murder, and former Garuda president Indra Setiawan were found guilty and sentenced for twenty years and 12 months imprisonment, the news about the acquittal of Major General (ret.) Muchi Purwopranjo is a manifestation of continuing impunity in Indonesia. For this, the Asian Federation Against Involuntary Disappearances and the rest of the international movement against enforced disappearances continue to cry for truth and justice for Munir. A week prior to the anniversary of Munir, the Asian Federation Against Involuntary Disappearances visited Indonesia to conduct series of activities related to the entry into ASIAN human rights defender 35

36 force of the UN Convention for the Protection of All Persons from Enforced Disappearance. The series of activities from September 1-6 were culminated with our participation in the every Thursday rally in front of the Presidential Palace. It was the 125th day since the families of the disappeared and other victims of human rights violations in Indonesia, inspired by Argentina s Madres de Plaza de Mayo, have been weekly conducting their protest demonstration. On that occasion, representatives of AFAD from the Philippines and Nepal and of its Latin American counterpart, the Latin American Federation of Associations of Relatives of Disappeared- Detainees were physically present. Their presence was a concrete manifestation of solidarity with Suciwati and her family and with Munir s larger family of victims of the 1965 massacre; the 1998 riot resulting in killings, imprisonment and disappearances of persons, the Tanjung Priok victims and many other victims and defenders of human rights in a country devastated by 32 years of dictatorship. As the present administration of President Sucilo Bambang Yudhoyono has received a landslide victory and will soon officially receive a new mandate in October 2009, AFAD once again calls on the Indonesian government to leave no stone unturned to facilitate that truth be ferreted out, justice be served and that the mastermind of Munir s treacherous murder be punished to the full extent of the law. Munir spent several years of his life as a human rights defender to the cause of the disappeared. He actively participated in the drafting and negotiation process of the UN Convention for the Protection of All Persons from Enforced Disappearance. An apt tribute for Munir during his 5th death anniversary is the Indonesian government s ratification of the UN Convention for the Protection of All Persons from Enforced Disappearance. Thus, on this occasion, as we seek for justice for Munir and for all victims of human rights violations, we reiterate our call to the Indonesian government for the immediate ratification of the UN Convention for the Protection of All Persons from Enforced Disappearance. It will be an apt tribute to Munir and the most precious gift which the Indonesian government can give to the families of the disappeared whom Munir lived and died for. This article was written by the Philippines Alliance of Human Rights Associations, FORUM-ASIA s member, on 21 September The collective courage of the people at EDSA I crushed the Marcos dictatorship and broke out of the grip of Martial Law. But it was not able to rein in the evil spirit that sustained the ruthlessness of that period. This was the evil spirit of impunity. The United Nations define impunity to mean the impossibility, de iure or de facto, of bringing the perpetrators of human rights violations to account whether in criminal, civil, administrative or disciplinary proceedings since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (United Nations. Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity ). Not only have the thousands of victims and their families been given justice, but most of the perpetrators still move to positions of influence and of political power. These victims are not only those who have been 36 Vol. 5 No. 2 September 2009

37 People s courage against martial law On 28 June 2009, more than 300 Filipino workers gathered to protest in front of the Island Shangri-La Hotel, Hong Kong, where Gloria Macapagal-Arroyo was staying. (Photo: subjected to gross violations of their civil and political rights, but also of their economic, social and cultural rights. These violations ranged from warrantless arrests, illegal detentions, torture, enforced disappearances, extra-judicial killings and internal displacements to the destruction of the environment and the people s means of subsistence, livelihood and development, as well as corruption that exacerbated the rise of poverty caused by the martial law regime. Impunity also weighed in with the onerous burden of debt. Impunity stood vulture-like on lifethreatening projects like the Bataan Nuclear Processing Plant. Subsequent administrations have failed to halt the ruthlessness and destructiveness of impunity of its own institutional forces, whether it be the subversion of the right to suffrage as exposed by the Garci tapes, aerial spraying of Davao ASIAN human rights defender communities with pesticides, the poisoning of waters by mining companies, or the abduction and torture of the Manalo brothers under the command responsibility of then Gen. Jovito Palparan, Jr., or unabated corruption, like the NBN-ZTE project. Impunity has seriously infected the institutions of legitimate violence wherein human rights violations are conducted with presumed regularity against the right to life and fundamental freedoms, like the spying exercises of the Philippine Navy against administration critics. The present administration of Ms. Gloria M. Arroyo has again the opportunity to curtail impunity. She must muster the will to put a major block to impunity by signing the bill against torture. It is a legacy worthy of the Filipino people who struggled and are struggling for dignity. Decisive in the fight to end impunity is the courage and resolve of civil society. It must build communities with the capacity to resist oppression and suppression of their human rights, whoever the authority before and after the elections, whether it be state or non-state actors. Formations of human rights defenders must be put up to monitor and document human rights violations, including the electoral and development fields. They must reject schemes that illegitimately perpetuate political power as martial law was used by President Ferdinand Marcos. Human rights must always be asserted in all aspects of people s lives to ensure the development of their full potentials. Asserting human rights is fighting to break impunity and building peace. 37

38 Controversial video: Independent, international investigation urgently needed A shocking video uncovering the summary executions of two men by the Sri Lankan army has gone public in August In a statement issued on 28 August, FORUM- ASIA expressed its deep horror upon receiving the video which constituted a clear evidence of gross violation of human rights and war crimes, if the video is authentic. FORUM-ASIA strongly demanded the Government of Sri Lanka to allow an international investigation of independent experts to be immediately conducted in order to uphold truth and justice. The controversial video showed two unclothed, blindfolded men sitting on a dirt ground being shot point-blank with assault rifles fired by two standing men dressed in Sri Lankan army uniform. At least eight other bodies were shown on the ground nearby. Summary executions of civilian persons or prisoners of war are in serious breach of the law of war, in particular Common Article 3 of the Geneva Conventions (1949) which lays out obligations of the parties to the conflict not of an international character. Is the video fake? While a spokesperson for the Sri Lankan army has called the video a fake, it should not have been so easily dismissed and denied. A far more effective way forward should be for the Government of Sri Lanka to facilitate an urgent and immediate investigation conducted by international, independent experts in order to set the record straight. FORUM-ASIA and civil society organisations across Asia have urged the Government of Sri Lanka time and again to allow journalists and independent monitors safe and unrestricted access to internally displaced persons (IDP) camps, detention centers and former conflict areas, so that impartial and objective information can be collected. FORUM-ASIA also emphasised the critical need to accurately assess the needs of the displaced and document the testimonies of violations of humanitarian and human rights law committed by both parties to conflict. Investigations are crucial for truth and reconciliation and to restore the dignity of victims. The below press released was issued on 17 September 2009 in Geneva, Switzerland Professor Philip Alston, the Special Rapporteur on extrajudicial executions. I have been requested by the Government of Sri Lanka to issue a public statement in response to the latest information provided by the Government in relation to the Channel 4 video which purports to show extrajudicial executions being carried out by the Sri Lankan Army. I have carefully reviewed the various briefings and statements made by the Minister for Disaster Management and Human Rights, which are essentially based upon a detailed Consolidated Response issued by the Government to the local and international media on 7 September 2009 and to the diplomatic community the following day. The Government s response was summarized in the Minister s statement on 15 September 2009 to the Human Rights Council in which he stated that four separate investigations have now scientifically established beyond any doubt that this video is a fake. I welcome the fact that the Government is now devoting considerable attention to this issue. The legal obligation incumbent upon a Government in a situation such as this is to undertake a thorough,prompt and impartial investigation. * My role as Special Rapporteur on extrajudicial 38 Vol. 5 No. 2 September 2009

39 The video, which allegedly shows Sri Lankan soldiers shooting unarmed men. (International Human Rights Association) executions is to evaluate whether the investigations undertaken have met the relevant criteria established under international law, and to advise the Human Rights Council accordingly. Prompt but perhaps, not thorough I can attest to the fact that the investigation has been prompt since it was completed within two weeks of the information becoming available. I am not, however, in a position to conclude that it was thorough. I have not seen the original version of three of the four expert investigations. The fourth of the investigations seems to have originated as an Opinion piece in The Island newspaper, and was subsequently elaborated upon. It is not clear whether or not this was at the Government s request. The statement provided by the Minister summarizes observations made by the remaining three experts in presentations made at a meeting convened by the Government for this purpose. I would welcome the publication of the full text of the analyses undertaken and reports presented by each of the four experts. The third and most important question is whether the four separate investigations meet the criteria of impartiality. I would note that two of the experts are members of the Sri Lankan Army, the body whose actions have been called into question. A third report is by Dr. Dr. Chathura De Silva, BSc Eng Hons (Moratuwa), MEng (NTU), PhD (NUS), Senior Lecturer, Dept of Computer Science and Engineering, University of Moratuwa, who has advised the Government in relation to a number of other similar issues in the past. And the fourth is by Siri Hewawitharana, a broadcast media specialist based in Australia, who is said to be the former head of Cisco s global broadcast and digital video practice. No other information has been provided by the government on Mr Hewawitharana, but it would appear that he is a member of a network of Sri Lankan Professionals. I would welcome more information on how he was identified and selected by the government as an independent expert. Independent experts closely linked to Govt Based on the limited information available to me, it is impossible to conclude that these four individuals, given their relationship to the Government, meet the criteria for impartiality in this context. When the actions of a Government are called into question in a matter of this gravity, what is required is to undertake an investigation by demonstrated experts who can be shown to be fully independent of the Government concerned. Two of these individuals are full-time Government employees, one has previously acted on behalf of the Government, and the basis on which the fourth was identified and selected as an expert remains unclear. I must conclude therefore, on the basis of the information made available by the Government, that the investigations undertaken cannot be characterized as impartial. The final question that remains is whether the information provided by the Government raises significant doubts as to the authenticity of the video. On this question, my conclusion is that the views expressed do indeed raise several issues which warrant further investigation before it could reasonably be concluded that the video is authentic. The only way to do this is for an independent and impartial investigation to take place. This is all that I have called for. Such an investigation might well conclude that the position adopted by the Government is fully warranted. I would welcome that outcome very warmly, and I hope that the Government would do likewise. * United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted on 24 May 1989, para. 9. ASIAN human rights defender 39

40 Solidarity key to resolve human rights abuses in Yongsan Gayoon Baek On 20 January 2009 early morning, around 1,500 police officers including anti-terror units, were dispatched to disperse 50 protesters fighting for their right to adequate housing. During this incident, 6 people including one police officer were killed. (Photo: There is a person inside! There is a person inside!! On 20 January 2009, flames burst out from a makeshift tower on top of a building in Yongsan, in the centre of Seoul, South Korea. People were screaming around the tower and black smoke blanketed the whole building. During that night, five protesters and a police officer were killed. What happened that day in Yongsan? Who killed these people and why did they have to die? What were the five protesters fighting for? Under Seoul city council redevelopment project, Yongsan has become a prime piece of real estate because of its central location. Previously, development was restricted in Yongsan because of American military camp stationed there since the Korean War. However, in 2006, decision was made to relocate the base camp and this triggered rapid development in the area. The Yongsan-4 District, where the 20 January incident occurred was no exception. Major construction companies in South Korea - Samsung, POSCO and Daerim had planned to built residential and commercial complexes there. When tenants first heard about the redevelopment project, they were worried, but at the same time, some had hope that the construction companies would provide a temporary home or shops for them nearby, so that they might at least be able to continue their business. Unfortunately, their hopes were dashed when the construction companies kept avoiding having a consultation with the tenants. Instead, they came to the area where redevelopment is planned, evaluated the building with a price much lower than the market price and notified tenants that they 40 Vol. 5 No. 2 September 2009

41 South Korea have to leave the area with the money offered by the construction company. Private gangs abuse tenants who refuse to leave Construction companies wanted to completely demolish the old buildings in the area and to build high rise modern buildings. Since May 2008, tenants were directly and indirectly pressured to leave the area. Tenants who were unaware of complicated property law and redevelopment plan were forcefully evicted. Worst of all, private gangs were used to violently beat up tenants who refused to leave the place. Those private gangs beat my father-in-law, my mother-in-law, my husband and me, in front of everyone. Whenever I called the police, they never came or appeared after 30 minutes. The police even recommended me not to confront those private gangs, one of the victim s families told me, as she was on the verge of tears. She added that groups of private gangs even broke windows, tables and chairs of a restaurant which had refused to leave the area. They broke down the house with demolition tools even when children were inside the house. By threatening tenants, private gangs continuously put pressure on them to leave. The tenants alleged that the construction companies were behind the violence of the private gangs. It was strange that no state authorities came to protect the rights of tenants who were on the receiving end of this brutal violence. As the violence continued, tenants decided to protect the area by themselves, by organising a group. In solidarity, network of victims of forced eviction in other regions came to Yongsan to fight with them. They shared experiences and transferred know-how on strategies to win battles against giant construction companies. During the struggle, some tenants gave up fighting and left the place with inappropriate amount of compensation. Some who stayed longer received a little more compensation and left with a crushed spirit. Those who could not compromise and could not give up their livelihood until the last moment decided to build a tower and continue their last struggle there. Hare hunting exercise, victims forcefully evicted No one expected that this would be the last day for some of them to see their families again. In the early morning of 20 January, the Government dispatched 1,500 police officers including anti-terror units to disperse only 50 protesters. In the makeshift tower, there were many flammable substances which protesters used for cooking and heating. The police did not make any attempts to remove dangerous flammable substances and ingredients from the protest spot which later caused fires and explosions. To avoid the flames, protesters threw themselves down without protective devices. As a result, the five protesters and one police officer died. Someone described the incident as a hare hunting exercise where hares were driven into the corner to catch them. Following the incident, police accused the protesters as criminals or terrorists and blamed them for the fire explosion. The Public Prosecutor s Office concluded that the police bear no responsibility for this incident and instead, indicted many protesters under the charge of obstructing police duty as well as violating other several laws. Several others were also arrested while they protested on the street against unjust decision by the government and police. What angered residents more was that the Public Prosecutor s Office censored 3,000 of the 10,000 paged investigation report, giving the excuse that the criminals might be able to abuse the information if those were revealed. It is believed that the unrevealed part of the report included interviews with head of police officers and private gangs. Currently, families of victims challenged the trial of nine indicted people during the Yongsan incident by saying that they cannot precede with the trial without reviewing those mysteriously missing 3,000 pages. Mourning for victims of violence continues... When I visited Yongsan on 23 May, about four months after the incident, the families of victims were still wearing black mourning clothes and police officers were still stationed in the area. All around the area, a street art gallery has blossomed - on broken walls of buildings there are paintings that criticise the current government for what happened in Yongsan. This place has becomes a symbol to remind people of the current deteriorating human rights situation in South Korea, and at the same time, it has become a cultural place where grief sublimated into art. Families of victims continue to live in front of the building where the incident happened. On a flat bench temporarily made on the street, they offered me to have dinner with them. We sat together and ate while police officers with shields and batons watched over us. Due to ASIAN human rights defender 41

42 the insuppressible sorrow felt by the victims, of which I could empathise, it was impossible for me to swallow any food. Until today, almost 9 months after the Yongsan incident, dead bodies of the five protesters still placed in a freezer at the hospital. Families of victims lamented that they cannot hold a funeral unless the government officially apologise to them about what has happened. The City council offered them some compensation money but the families refused to receive the money. What they want is the truth of what has happened during the incident, and not any material gain. Solidarity is the key solution Despite the bitter incident, the redevelopment project continues to take place, not only in Yongsan, but in many parts of Seoul. Private gangs are believed to be brutally using violence against residents, police forces continue to neglect human rights violation committed by construction companies, and tenants are forcibly evicted from their homes and their livelihoods destroyed. Yongsan is one example of many tragedies happening in our society right now. Even after 6 people have died, there seems to be no end to the human rights abuses happening in front of our very eyes. How can we stop this ongoing abuses? A human rights defender who I interviewed in Yongsan told me that solidarity is the only key to solve this problem. Solidarity among victims, solidarity among workers, solidarity among citizens, and solidarity among human rights defenders is the only way to stop this vicious circle of evictions caused by development projects. The idea that everyone can be a victim of forced eviction can promote solidarity, which remains the only answer at this point to bring justice to the victims, and to prevent these violent incidences from happening in other areas. Eventually, it is up to us to build a world where we do not have to mourn and cry for those victims of forced eviction. Gayoon Baek is a FORUM-ASIA East Asia Programme Officer. This article is based on her visit and interviews with victims of forced eviction in Yongsan, South Korea. On a street next to burned buildings, people have drawn on broken walls criticising the government (August 2009). Grief sublimated into art in Yongsan. (Photo: Gayoon Baek) 42 Vol. 5 No. 2 September 2009

43 National Human Rights Institutions Asian NGOs engage with NHRIs at various levels Emerlynne Gil Under the Paris Principles, national human rights institutions (NHRIs) shall cooperate with the United Nations and any other organization in the United Nations System, the regional institutions and the national institutions of other countries that are competent in the areas of promotion and protection of human rights. * The regional grouping of NHRIs in the Asia Pacific region is the Asia Pacific Forum of National Human Rights Institutions (APF). From 8 to 10 July 1996, the NHRIs of Australia, New Zealand, India, and Indonesia, gathered in Darwin, Australia, for the 1st Asia Pacific Regional Workshop of National Human Rights Institutions. During this workshop, the four institutions agreed to establish the APF and set out its objectives in the Larrakia Declaration: National institutions attending the First Asia Pacific Regional Workshop agree to respond where possible with personnel and other support to requests from governments in the region for assistance in the establishment and development of national institutions, To further and expand their mutual support, cooperation, and joint activity through: information exchanges training and development for Commission members and staff development of joint positions on issues of common concern undertaking of joint projects sharing expertise periodical regional meetings specialist regional seminars on common themes and needs responding promptly and effectively to requests from other national institutions to investigate violations of the human rights of their nationals present in a country that has a national institution. By 2009, the APF membership grew to have 16 full members and 2 associate members. The APF initially maintained its own separate accreditation system until in 2009, when the Forum Councilors, its governing body, decided to use the accreditation decisions of the International Coordinating Committee of National Human Rights Institutions (ICC) in determining membership status for the APF. The APF Secretariat outlined several benefits for this decision, which included the reduction of the potential for development of different standards at the international and regional levels, and that supporting the ICC accreditation process will promote greater transparency, rigor and equity in the interpretation and application of the Paris Principles across all four regions. The accreditation process The shift however to using the accreditation decisions of the ICC may be attributed more to the quandary that the APF faced as a result of two decisions made by the ICC Sub-Committee on Accreditation. The ICC, which is the international grouping of NHRIs, looks into the compliance of its members with the Paris Principles through its accreditationreview process. All NHRIs that hold an A status are subject to re-accreditation on a 5-year cyclical ASIAN human rights defender 43

44 basis. An institution granted status A is deemed to be in full compliance of the Paris Principles and becomes a full member of the ICC. These institutions may also be accredited to the UN Human Rights Council and have independent participation rights at the sessions in Geneva. Status B institutions are those that are not in full compliance with the Paris Principles or there was no sufficient information provided to the ICC Sub-Committee on Accreditation to make a clear determination. These institutions have observer status at the ICC. Finally, status C institutions are those that not in compliance with the Paris Principles. In 2007, the Human Rights Commission (HRC) of Sri Lanka, was downgraded from status A under the ICC to status B, and in 2008, the National Human Rights Commission of Malaysia (SUHAKAM) was informed of the Sub-Committee on Accreditation s intention to recommend its downgrading to status B. The Sub-Committee on Accreditation gave SUHAKAM one year to present evidence that it is indeed in compliance with the Paris Principles and should remain a status A institution under the ICC. When the APF held its 13th Annual Conference in August 2008, in Kuala Lumpur, Malaysia, it was faced with the predicament of having a full member that had already been downgraded by the ICC, and a Chairperson and host that was facing imminent downgrading. Civil society groups started questioning the credibility of the accreditation standards of the APF, asking how an institution that had already been deemed by the ICC as not in full compliance with the Paris Principles can still sit as a full member of the APF. Hence, had the APF not shifted to using the Civil society organisations held an NGO Engagement with the Asia Pacific Forum of National Human Rights Institutions from 2-4 August 2009, in Amman, Jordan. Following the event, participants from the Middle East decided to establish a network, called Arabic NGOs Network on National Human Rights Institution (ARNNI). (Photo: Emma Germanos) accreditation decisions of the ICC, its credibility as a regional body of NHRIs would have been severely compromised. Asian NGOs engagement with NHRIs In September 2007, the Chairperson of the ICC, Jennifer Lynch, who was then just starting out her term, met with nongovernmental organizations during the NGO meeting parallel to the 12th Annual Conference of the APF in Sydney, Australia. During this meeting, she laid out the priorities for her term, which included greater cooperation by the ICC with nongovernmental organisations. This presented an opportunity for NGOs to engage with the ICC, and use the ICC as a platform for their advocacy in making NHRIs in their country comply with the Paris Principles. In February 2008, the Asian NGOs Network on National Human Rights Institutions (ANNI) met in Bangkok, Thailand, to discuss its advocacy strategies on issues relating to NHRIs for that year. The ANNI is a group of NGOs from the Asian region that have a common goal of helping NHRIs in their countries become independent and accountable, and effective protection mechanisms for human rights defenders at the national level. It was established in December 2006 and had designated the Asian Forum for Human Rights and Development (FORUM-ASIA), 44 Vol. 5 No. 2 September 2009

45 National Human Rights Institutions particularly its Human Rights Defenders Programme, to act as its convener and coordinator. One of the key decisions of the ANNI during this meeting was to engage in the accreditation-review process of the ICC by submitting NGO parallel reports during its next session. Hence, in accordance with this decision, members of the ANNI from Malaysia submitted parallel reports to the ICC Sub-Committee on Accreditation for its review of SUHAKAM on March The ANNI was heartened by the response of the Sub-Committee on Accreditation when it saw the recommendations it made after the accreditation review of SUHAKAM. The Sub-Committee on Accreditation appeared to have derived many of its recommendations to SUHAKAM from the NGO parallel report, submitted by the members of the ANNI. Key recommendations to SUHAKAM included having a clear and transparent appointment and dismissal process of its members in its founding legal documents, and ensuring pluralism in the selection and appointment process of its members. The short term of office of the members, which is two years, was also noted by the Sub-Committee on Accreditation. As mentioned earlier, the Sub- Committee on Accreditation gave SUHAKAM a period of one year to show proof that it is in full compliance with the Paris Principles, so that it can maintain being a status A institution under the ICC. This was indeed a significant development for Asian nongovernmental organisations as they saw that the ICC is emerging to be another important platform for them in their advocacy on issues regarding NHRIs. In 2008 and 2009, the ANNI continued to submit NGO parallel reports to the Sub-Committee on Accreditation for the reviews of NHRIs from Thailand, Nepal, and Mongolia. ANNI members from Sri Lanka also submitted a parallel report for the re-accreditation of the Human Rights Commission of Sri Lanka, which still maintained its B status even after the re-accreditation. To date, the members of the ANNI are the only NGOs from any part of the world that are actively engaging in the accreditation review process of the ICC. It is also the only group that submits reports to the Sub- Committee on Accreditation. Impact of ANNI s work On October 2008, during its General Meeting in Nairobi, Kenya, the ICC amended the Rules of Procedure of the Sub-Committee on Accreditation, which now includes a specific provision about civil society submissions during the accreditation review process. The new rules require that [a]ny civil society organisation wishing to provide relevant information pertaining to any accreditation matter before the Sub-Committee, shall provide such information in writing to the ICC Secretariat, at least four (4) months prior to the meeting of the Sub- Committee. While this provision is evidence that the work of the ANNI is beginning to have an impact upon the ICC, particularly on the Sub- Committee on Accreditation, it also demonstrates that the ICC remains an old boys club, with members zealously protecting each other. The new provision ensures that the NHRI under review will have more than adequate time to scrutinize the NGO parallel report and respond to the issues therein. However, the NGOs are not provided a copy of the Statement of Compliance, which the NHRI submits to the Sub-Committee on Accreditation. Non-governmental organisations also have no way of knowing about the discussions that transpired during the accreditation-review. Hence, there is still no transparency in the process, and it is still effectively closed and off-limits to NGOs. * The Paris Principles, Part I, par. 3(e). Emerlynne Gil is FORUM-ASIA Human Rights Defenders Programme Manager. Further contents of this article will be published in a forthcoming publication of FORUM-ASIA. ASIAN human rights defender 45

46 Advocacy Window dressing weakens ASEAN This oral statement was delivered by Giyoun Kim on behalf of FORUM- ASIA at the 11th Session of the UN Human Rights Council, on 16 June As the 1993 Vienna Declaration and Programme of Action (VDPA) highlights, regional arrangements play a fundamental role in promoting and protecting human rights by reinforcing universal human rights standards at the regional level. In this vein, FORUM-ASIA looks forward to the establishment of the first regional human rights mechanism in Southeast Asia, of which the Terms of Reference (TOR) will be adopted at the 42nd ASEAN Ministerial Meeting in July 2009, Thailand. We envisage an independent, effective and credible ASEAN human rights body which should work to achieve that all ASEAN Member States act upon its obligations under international human rights norms and standards. However, we remain deeply concerned that the very essence of this regional human rights mechanism under discussion, that is, the appointment of independent experts and the protection mandate are missing at the moment. To ensure its credibility and effectiveness, the ASEAN human rights body should be independent from the States in carrying out its mandate. The process of selecting commissioners must be transparent and involve extensive and meaningful consultations with civil society. Its mandate should allow the commissioners to receive complaints, conduct site visits and perform investigations on human rights violations in each country. We would like take to this opportunity to draw the Council s attention to the principle of non-interference which has been inherited in the draft TOR of the ASEAN human rights body. We deplore that this principle is often raised as a defense by States as an attempt to avoid fulfilling their obligations under international human rights law. The Council needs to be reminded that the VDPA states that the promotion and protection of all human rights is a legitimate concern of the international community. Likewise, in resolution 48/125 of 20 December 1993, the UN General Assembly reaffirmed that it is a purpose of the UN and the task of all Member States [ ] to promote and encourage respect for human rights and fundamental freedoms and to remain vigilant with regard to violations of human rights wherever they occur. It is with this view that the principle of non-interference should not be used as a tool to deter any scrutiny and in-depth discussions over the human rights situations in each country. Furthermore, we are alarmed that this damaging approach has infected the Council during its 11th Special Session on the human rights situation in Sri Lanka, thereby diminishing the core ability of the Council to address gross violations of human rights in the domestic setting. Lastly, we would like to repeat our call upon all ASEAN Member States to adopt a TOR of the ASEAN human rights body, which conforms to international human rights standards and is at par with other regional human rights mechanisms established in European, Inter- American and African systems. A mere window dressing body will only further weaken the lack of political will of the ASEAN to protect the rights of the peoples in the region. 46 Vol. 5 No. 2 September 2009

47 United Nations Human Rights Council Special Procedures need more respect from Member States This Open Letter was submitted to member States of the Human Rights Council on 11 June, Excellencies, We are civil society organisations from throughout the world that have contributed to the Human Rights Council and its work since its establishment. We have observed with increasing concern developments in the Council, including at the current 11th Session, that are undermining the work of the Council s Special Procedures. This session has seen extraordinary personal attacks by some States on the integrity of mandate holders and specific threats to their independence. The attacks at this session of the Council have focused in particular on the current Special Rapporteurs on freedom of expression and on extrajudicial, summary or arbitrary executions. These particular Rapporteurs were subjected to threats of disciplinary action because they offered their expert analysis and recommendations on important human rights issues that they brought to the attention of this Council in the proper exercise of their mandates. Many States engaged in this conduct. Some States have been more direct than others in their threats to remove mandates holders from their functions if they fail to conform to those States particular interpretation of the experts mandates. There has been what appears to be a coordinated effort to intimidate Special Procedures, individually and collectively. We view these attacks and threats as fundamentally an attack on and threat to the Council itself and they are severely eroding the Council s legitimacy and credibility. We understand that any State that is criticised by a mandate holder will feel the need to respond. We accept its entitlement to endeavour to rebut criticism, to correct any errors and misunderstandings, and to argue its case. It is normal that a State will also offer its interpretation of a Special Procedure mandate. It should do so, however, respectfully and with appropriate measure, just as the mandate holder is required by the Special Procedures Code of Conduct to act with respect and appropriate measure. Contrary to this approach, however, there is an escalating tendency among too many States to utilize the Special Procedures Code of Conduct as the basis for political attacks on the independence of individual Special Procedures and the entire Special Procedures system. Too often any difference of views about a situation, a mandate or a recommended course of action is turned into an issue of the Code of Conduct. This is a highly selective interpretation of the Code of Conduct, ignoring its fundamental requirement that States refrain from undermining the independence of the Special Procedures mandate holders. The misuse of the Code of Conduct was anticipated when it was being debated by the Council in its first year. Many States and NGOs argued at the time that the Code needed to be complemented by a Code of Conduct for States. Experience since then has established that need beyond doubt. States should be required, in the words of General Assembly resolution 60/251, to cooperate fully with the Council s Special Procedures. To bring a proper balance back to the Council s relations with its Special Procedures, the Council must urgently commit to, develop and adopt a Code of Conduct for States to guide them in their cooperation with the Special Procedures. We therefore appeal, in the strongest terms, to member and observer States to act more responsibly and respectfully in their relations with Special Procedures and refrain from all attempts, by word or action, to interfere with the independence of mandate holders or to otherwise undermine their work. We further call on all States to act in good faith to ensure that the long term integrity and credibility of the Human Rights Council itself are not sacrificed to political expedience. Note: The organizations which signed on this Open Letter includes: Action Canada for Population ASIAN human rights defender 47

48 Advocacy Photo: Jun Wu and Development (ACPD), Al-Haq, Amnesty International, Arab Sisters Human Rights Forum, Arabic Network for Human Rights Information (ANHRI), ARC International, ARTICLE 19, Asian Forum for Human Rights and Development (FORUM-ASIA), Asian Legal Resource Centre, Association pour la Défense des Droits et Libertés (ADDL), Association of World Citizens, Association for World Education, Baha i International Community, Bahrain Centre for Human Rights, Cairo Institute for Human Rights Studies (CIHRS), Canadian HIV/AIDS Legal Network, Centre for Economic and Social Rights(CESR), Conectas, CREA (Creating Resources for Empowerment in Action), Damascus Center for Human Rights (DCHR), Democracy Coalition Project (DCP), East and Horn of Africa Human Rights Defenders Network (EHAHRDN), Egyptian Association for Community Participation Enhancement (ECAPE), Egyptian Initiative for Personal Rights (EIPR), Egyptian Organization for Human Rights (EOHR), Fédération internationale des droits de l homme (FIDH), The Federation for Women and Family Planning, Human Rights Council of Australia, Human Rights First Society-Saudi Arabia, Human Rights Watch (HRW), International Commission of Jurists (ICJ), International Service for Human Rights (ISHR), International Women s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), New Woman Research Foundation (NWRC), Palestinian Human Rights Organization in Lebanon (PHRO). Support competitive elections! More than 70 civil society organisations, including FORUM- ASIA, called on member states of the United Nations to end uncompetitive elections and vote trading for Human Rights Council elections. This statement was issued on 18 August 2009 in Geneva. In their letter dated 13 August, the NGOs said that each government should publicly commit to support contested and principled electoral process for future elections. Below is their statement. As the Human Rights Council prepares for its 12th regular session, the first session with the new members elected in May 2009, we write to ask your government to commit itself publicly as a matter of national policy to support a competitive, genuinely-contested and principled electoral process for future Human Rights Council elections. General Assembly resolution 60/251, which established the Council, specifies that Council members shall be elected directly and individually, and that, in casting their ballots, Member States shall take into account the contribution of candidates to the promotion and protection of human rights. These provisions reflect the spirit of the resolution: UN Member States must be given a real choice in order to elect members that will uphold the highest standards in the promotion and protection of human rights and fully cooperate with the Council. The election of Council members this year failed to live up to these principles. There were serious impediments to electing the countries most clearly committed to human rights that each region has to offer. These impediments included: 48 Vol. 5 No. 2 September 2009

49 United Nations Human Rights Council lack of candidates and competition; endorsed regional slates; late, absent or insubstantial pledges and commitments; and widespread vote trading. With only twenty countries running for eighteen seats this year, governments-including your own-were deprived of a real choice of candidates. In three out of five regions, clean slates (where the same number of candidates is presented as seats available for the region) undermined the substantial progress made by resolution 60/251 over the election process of the former Commission on Human Rights. Formal endorsement by the Asian Group of the slate for the region and de facto endorsement by other regional groups of their regional slates further reinforced the lack of choice. The lack of competition also made it practically futile to assess candidates on the basis of their human rights records and pledges. Numerous candidates running on non-competitive slates submitted their pledges within days of the election, and a couple failed to submit public pledges at all. Vote trading by member states also marred this election. Representatives of many governments complained about countries claiming to support human rights, while secretly trading votes with human rights abusers to the detriment of candidates committed to the promotion and protection of human rights. Vote trading effectively means that countries are elected based on their ability to provide a swing vote in other elections, rather than their rights records. We call on all UN Member States to bring vote trading arrangements and uncompetitive elections for the Council to an end. The electoral process established in resolution 60/251 was to ensure a more human-rights-committed membership and was a large part of what was to make the Human Rights Council an improvement over the Commission on Human Rights. The international community must act urgently to fulfill its commitment to competitive, genuinely-contested and principled elections, consistent with the spirit of resolution 60/251, and to give effect to the reforms of The credibility of the Human Rights Council and its ability to respond to human rights violations hang in the balance. In preparation for next year s election, we call on your government to publicly commit itself as a matter of national policy to competitive, genuinely-contested and principled elections for the Human Rights Council. We ask that your government state its commitment to: Only vote for those candidates whose human rights record and election pledges meet the membership requirements set forth in resolution 60/251; Uphold the principle of competitive elections for the Human Rights Council both by indicating openness to competition if your government is a candidate for membership and by encouraging other countries committed to human rights in all regional slates to stand for election; Present any candidacy for Council membership individually rather than as part of a regional slate, and encourage more states to seek election to the Council than seats allocated to the regional group; Avoid regional endorsements of slates, as these go against the principle of contested election by the universal membership of the United Nations envisaged by resolution 60/251; Cast votes in Council elections taking into consideration candidates rights records, rather than political or economic considerations; Refuse to exchange votes to elect members to the Human Rights Council or disclose voting intentions through formal or informal commitments; Issue concrete and specific pledges and commitments publicly and at least 30 days before the election, when seeking election to the Council, to allow UN Member States to evaluate candidacies properly; and Consult with local and national civil society in formulating pledges and commitments on pressing human rights issues and in their subsequent follow-up and implementation. This commitment could be expressed in the General Assembly this fall in connection with the consideration of the report of the Human Rights Council. We commend Mexico s announcement of a policy along these lines to the General Assembly in its statement of March 15, 2006 and urge your government to follow that example. Several governments have already declared their intention to seek election to the Council next year. We call on all states to contribute to ensuring robust competition for 2010 s Human Rights Council election with the goal of a more effective Human Rights Council. ASIAN human rights defender 49

50 On December 10th, 2008, the 60th Anniversary of the Universal Declaration of Human Rights, the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP or Optional Protocol). By adopting this long awaited instrument, the General Assembly has corrected historic imbalances, strongly reaffirmed the universality, indivisibility and inter-dependence of all human rights, but most importantly, has created the possibility for millions who suffer from social and economic rights violations to find redress at the international level. Once the Optional Protocol enters into force, it will allow women, children, migrants, Indigenous peoples and anyone whose economic, social and cultural rights have been violated to present a complaint before the Committee on Economic, Social and Cultural Rights, the United Nations independent body of experts responsible for supervising State compliance with all the rights protected in the International Covenant on Economic, Social and Cultural Rights. In addition to its relevance as mechanism of redress at the international level, the Optional Protocol has the potential to increase domestic compliance with ESCR obligations, press for the national adjudication of cases that involve the violation of ESCR and strengthen the work of local organizations on human rights and social justice issues. The Optional Protocol will also help develop the content of economic, social and cultural rights and related States obligations, as well as give guidance to national and regional courts and human rights institutions around the world. Get involved and support the OP! The NGO Coalition for an Optional Protocol to the ICESCR has launched the Campaign JUSTICE NOW! RATIFY TO PROTECT ALL HUMAN RIGHTS, to ensure wide ratification and implementation of the OP. Victims of ESCR violations will be able to seek justice through the Optional Protocol once it enters into force, after 10 States have completed the legal procedures to be bound by the treaty. These legal procedures differ among countries but, in general, States must either ratify or accede to it. Ratification of a treaty requires domestic approval of the treaty after the state has signed it and agreed to its terms. So as a first step the Coalition is focusing efforts to ensure the prompt entry into force of this mechanism. The Optional Protocol was open for signatories and ratification or accession to States parties of the International Covenant on Economic, Social and Cultural Rights on September 24, 2009 during the ceremony of the opening for signatures of the Optional Protocol organised by the United Nations in New York (see the Human Rights Council Resolution A/HRC/10/L.14 of 20 March 2009). An important step for the OP Campaign is to ensure that a considerable number of States sign the Optional Protocol on September 24. The signatures will be a tangible demonstration of the international community s commitment to the indivisibility, universality and interdependence of all human rights and will set the stage and create momentum towards ratification or accession of States. In a time where humanity is facing financial, food and global warming crises, States more than ever need to take all necessary steps to ensure that the fundamental rights of their people are upheld and protected above any other priority. The Optional Protocol rescues the unified vision of all human rights for all people which served as the pillar for the adoption of the Universal Declaration of Human Rights: a vision that recognizes that human beings require civil and political rights and freedoms as much as they require housing, education, health and other economic, social and cultural rights to live a life of dignity and freedom. 50 Vol. 5 No. 2 September 2009

51 Lesbian Gay Bisexual and Transsexual rights Break the silence over LGBT issues with regional Endorse the Petition! protectallhumanrights.org/en The NGO Coalition has drafted a petition asking governments to support the OP and sign it on September 24, with ratification following as soon as possible. Show your support and urge governments to join the OP by signing the petition and asking others to do the same! In addition to signing the petition, either in your individual capacity or on behalf of an organization or institution, there are two ways to support the OP: Embed a link to the petition and add information about the petition onto your website. In addition please this information to your networks and partners, requesting that they do the same Use this printable version of the petition to collect signatures at meetings, gatherings, events in your community and school, etc. The petition is currently available in English, French and Spanish. If you translate it to any other language, please send it to op-coalition@escr-net.org and we will make it available to all members on ESCR-NET s resource page. Support the Campaign! solidarity Pharawee Koletschka It is quite impossible to pin point the exact origin of discrimination towards LGBT (lesbian, gay, bisexual and transgender) people and the lack of discourse on the said issues in Asia. The diversity of Asia makes the landscape of LGBT rights even more intricate as different societies and nations hold diverse cultures, traditions, paradigms, laws and perception towards this community. Nevertheless, two notions are clearly noticeable when it comes to LGBTs right in the Asian region, discrimination in multiple forms against LGBT people is still prevalent and the discourse on LGBT issues is still not solidified in the realm of human rights within Asia. Unearthing the origin of such discriminatory practices within society and civil society may help us formulate our point of action. However, the method of placing blame on certain parties may hinder rather than advance LGBT rights in Asia as it is a complex issue in a vast and diverse region. Rather, it is allowing open discourse in the public and civil spheres and revealing root causes rather than saving societal face that can lead to realisation of universal, interdependent and indivisible human rights for all, especially those who feel victimised due to their sexual orientation. It is a challenge to attempt to reveal a regional picture of the status of LGBT rights in Asia, however a regional perspective, if there is one, may help us understand this intriguing issue better. Discrimination against LGBT are structuralised When speaking of LGBT rights, many leading LGBT activists across the region point to an existing silence and lack of understanding of LGBT issues in every sector of society, including a structuralised ASIAN human rights defender 51

52 Special feature form of discrimination towards the LGBT community. Robyn Garner, executive director of the Mongolian LGBT Center, attributes Robyn Garner the main challenges of the LGBT rights movement to the general ignorance within Mongolia of the complex issues facing the community, that lack of understanding and ignorance have led to societal and institutional discrimination, harassment, persecution, physical and sexual violence, arbitrary arrest and detention and even murder. There is, simply put, across-the-board discrimination against LGBT people. Besides a lack of understanding within society, the State itself does not have sufficient knowledge of the definition of LGBT itself. Garner recollects, In general, there is widespread ignorance within government circles as to what LGBT actually means. When Anaraa (Nyamdorj, a representative of the Coalition of LGBT Rights Activists in Ulaanbaatar) was presenting the shadow report in Geneva last year, Mongolian government representatives asked among themselves what sexual orientation meant. Without a concept of sexuality within the government and the national discourse such discriminatory practices and human rights violations are not inhibited. As such, many victims of hate crimes and human rights violations do not report such deplorable acts as they are rightfully fearful of further harassment. This real fact is not specific to Mongolia but is a real trend within many Asian nations. With already a soaring number of violence and discrimination against LGBT people, the real number may be much higher as many violations are simply not spoken of. Living in a much pressured society According to Garner, specific to Mongolia is the documentation of LGBT individuals and organised assemblies of the LGBT community by the General Intelligence Agency, which further creates an atmosphere of fear and a closeted environment. In Indonesia, the pressure of hiding one s identity is also a rigid structure established by the State. The cofounder of the Gaya Nusantara Foundation, an Indonesian organisation originally founded for the sexual health of gay men, transgender and male sex workers and now further committed to the research, advocacy, and education in gender and sexuality, Dede Oetomo, also sees sexual minorities living in a much pressured society. Oetomo believes the major challenge for the LGBT rights movement in Indonesia is that, The pressure to form a heterosexual family means that many LGBT people are under pressure to form a family, and therefore they cannot be out. This cultural pressure is reinforced by the State, which leads to structural inequalities and a Dede Oetomo discourse that is only allowed for heterosexual ideology. Within Asia, Japan is seen as a sexually tolerant nation, however according to Azusa Yamashita, a writer for GayJapanNews and an activist in the Citizen s Council for Human Rights Japan, there is still silence in regards to LGBT issues within Japanese society. Despite some successes within Japan s LGBT movement Yamashita still believes that the LGBT movement in Japan is still in its infancy, Although the gay movement in Japan is said to have started in the 1980 s, in my opinion, we are still at the beginning of the road to win equality. The challenge is internalised homophobia within LGBT people themselves. There are many LGBT people who are too afraid to be out because of their internalised homophobia and lack of empowerment. This has helped LGBT people to go invisible and has also helped society keep silent on the issue. The issue of silence surrounding the LGBT community is prevalent throughout the region and is a major hindrance to its movement. However, another form of silence which is further stifling the status of LGBT rights in Asia is the lack of discourse within civil society itself, specifically human rights. According to Garner, human rights and women s rights NGOs in Asia have failed to incorporate LGBT issues into their work, Indeed, there has been a reflection of the broader societal intolerance in their unwillingness to address these concerns. They tend to adopt an it s not our problem approach. Or they are outright dismissive. Regional solidarity on LGBT issues needed To delineate human rights is oxymoronic. The concept of 52 Vol. 5 No. 2 September 2009

53 Lesbian Gay Bisexual and Transsexual rights Azusa Yamashita human rights is its indivisibility and interdependence. And as such a regional movement for LGBT rights is a goal many strive for. Garner believes in the importance of a regional solidarity in regards to LGBT issues, It is imperative that there is regional solidarity and associated actions. We need to be seen to exist; not in isolation, but as a party of each and every culture and society, part of each and every family. There is strength in numbers. However, the road to regional solidarity has proven complicated as much of the national LGBT movements are still in its infancy, and Asian civil societies have failed to fully incorporate LGBT issues into its own discourse. According to Oetomo, a regional movement is occurring but one cannot forget the diversity of Asia that makes intricate the issue of LGBT rights, It is fair to say that regional-level organising in Asia is still at its infancy. To be fair, we Asians don t really know one another well, so a lot of work needs to be done in general before such solidarity is meaningful. Nevertheless, with such immense silence and discrimination against the LGBT community throughout Asia, the activists working in the movement have made historic strides. In Japan transgender people can now legally change their identity, and in a significant ASIAN human rights defender achievement this year the Delhi High Court legalised gay sex between consenting adults, repealing a discriminatory colonial law in the Indian Penal Code. With such great strides, there are still many obstacles to overcome. In Mongolia, LGBT activists are trying to establish an LGBT Center by registering but are facing discrimination from the state registration agency. Without the registration, the LGBT Center will not be able to function within the country and the agency has excused its discriminatory action by blaming the name requested by the center. The agency has stated in an official rejection letter that it believes that the name has a meaning that conflicts with Mongolian customs and traditions and has the potential to set the wrong example for youth and adolescents. LGBT, not a western concept Garner added that the notion that homosexuality is against Mongolian culture is prevalent and is related to the common discourse of colonialism and the mentality of the East versus the West, In Mongolia, there is a perception among some people that homosexuality is a Western import; that it has no basis in traditional Mongolian culture. This is of course nonsense, and is largely a Soviet construct. The façade of East versus West can only hinder the progression of human rights and establishes illusions and excuses which turn LGBT issues into solely a Western construct. This dangerous notion has stifled the discourse of LGBT issues in Asia and must be eradicated. The discourse of LGBT issues can only progress when silence is not tolerated. Open discourse on sexuality and sexual orientation has to be established within the government, greater society and civil society for the further progression of LGBT rights in Asia. And the notion that human rights are not drawn with borders has to be reminded amongst all members of society, including those working for the development of human rights. The notion of human rights as universal, interdependent and indivisible is not only its foundation but is its definition. To ignore this concept is to ignore the idea of human rights itself. And as such, to keep silent on LGBT rights is a grave violation against the fundamental idea of human rights. The author was an intern in FORUM-ASIA South Asia Programme. Every year, South Korea celebrates Seoul Queer Culture Festival. LGBT people s rights are celebrated in pride festivals across Asia. (Photo: 53

54 54 Vol. 5 No. 2 September 2009 Photo: Moyuko Okada, Prayer (Taipei, 2007)

55 to revile ; to revere ; to respect Here is land. Go pray on it. Here is land. But remember; I do not want to see your crosses, I do not want to hear your church bells; Shut the lid on that age old organ, And turn your trumpets in. Keep your deities away from me, Lest my eyes fall upon its evil; Silence your prayers from this air that is mine, Lest my ears be tainted by their devotion Keep away from my sight your statues In all their colour and splendour, For your statues are not my statues And only what s mine shall exist. Snuff out your candles, And pour out the oil, For only the light in my lamps Shall flicker for all. Here is land. I ll tolerate you here. But this is my fence. And cross it you shall not. Why, brethren, why? Why do my prayers offend you so? ~ Do we both not ask for mercy and grace? Do we both not seek strength for kindness and love? Do we both not fall on our knees for forgiveness? Do we both not hold out our hands in thanks? Why do you anger at the sight of my cross? Why must I hide the symbols of my faith? Why do my steeples, my statues, my stupas and my structures of belief drive you to hate? My beliefs needn t be your beliefs As yours needn t be mine. But is not your God My God too? And is this land not yours or mine, But that of the Lord of all mankind? ~ by katrina jorene maliamauv ~ ( ) ASIAN human rights defender 55

56 56 Vol. 5 No. 2 September 2009