Towards and ASEAN Commission On The Promotion and Protection of The Rights of Women and Children

Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children
Study by
The Office of Human Rights Studies and Social Development (OHRSD) Mahidol University, Thailand
Submitted to
The Working Group for an ASEAN Human Rights Mechanism
MAHIDOL UNIVERSITY
Supported by
Study report submitted by Office of Human Rights Studies and Social Development (OHRSD) Mahidol University, Thailand
To The Working Group for an ASEAN Human Rights Mechanism
Supported by SEARCH/CIDA-Canada
By Sriprapha Petcharamesree, Ph.D, Mahidol University Maureen Maloney, Professor of Law, University of Victoria Varaporn Chamsanit, Ph.D, Mahidol University Sunsanee Suthisunsanee, MA.
This research was commissioned by The Working Group for an ASEAN Human Rights Mechanism
Supported by SEARCH/CIDA-Canada
The Office of Human Rights Studies and Social Development Faculty of Graduate Studies, Mahidol University, Thailand
June 2008
Acknowledgements
This research report was prepared by the Research Team from the Office of Human Rights Studies and Social Development (OHRSD), Faculty of Graduate Studies, Mahidol University, Thailand. Professor Maureen Maloney from the Faculty of Law, University of Victoria, Canada has kindly contributed to the research works. This research report is based primarily on the review of official documents at both ASEAN and national levels, and the State Reports for the CRC and CEDAW, including the Concluding Observations made by the UN Committees on CRC and CEDAW. Some findings and most of the recommendations included in the report are drawn directly or indirectly from the discussions and views expressed by participants during two regional consultative meetings held in Bangkok in November 2006 and April 2007 respectively. The Research Team is grateful to the Working Group for an ASEAN Human Rights Mechanism for their confidence in entrusting our Team with the carrying out this research. The Research Team would also like to thank the Working Group and its members for their patience with respect to the overdue nature of this research report. Their encouragement and understanding was and is very much appreciated. The Research Team is very thankful to all participants involved in the workshops organized during the research process. Their participation and frank discussion represented an invaluable contribution to the preparation of the research. The Team wishes to express our sincere gratitude to SEARCH/CIDA Canada for their financial support, without which this research could not have been realized. Thanks are also extended for the unreserved support from Maureen Maloney, Melinda MacDonald and Michael Miner. Assistance in editing the report rendered by Melissa Stewart is highly appreciated. Finally, thanks to all colleagues and students who provided a hand in the research process.
The Research Team June 2008, Bangkok, Thailand
CONTENTS
Page(s)
ACKNOWLEDGEMENTS LIST OF TABLES LIST OF ACRONYMS
EXECUTIVE SUMMARY
i-xx
CHAPTER I:
1-13
CHAPTER II: ASEANs Commitment to the Promotion and Protection of the Rights of Women
14-43
CHAPTER III: Legal and Political Commitment to Human Rights of Children in ASEAN and ASEAN countries.
44-76
CHAPTER IV: Lessons Drawn from a Comparative Analysis of Existing Human Rights Machineries in Africa, the Americas and Europe
77-106
CHAPTER V: Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children : Conclusions and Recommendations BIBLIOGRAPHY ANNEX Annex I : List of participants (the Expert Meeting) Annex II : List of participants (Regional Consultative Meeting) Annex III: Law, Policies and Mechanisms Pertaining to Children in ASEAN Countries
107-126
127-134
135-137 138-141 142-149
List of Tables
Page(s)
Table 1. Table 2. Table 3: Status of Ratification of Human Rights Instruments in ASEAN ASEAN States Ratifications of the ILO Conventions Status of ASEAN member countries ratification of the CEDAW Convention, reservations, and its Optional Protocol. Table 4: Status of ASEAN member countries reports to the CEDAW Committee Table 5. Table 6: Status of Ratifications of CRC/OP1 and OP2 Status of the State Reports to the CRC Committee 51 54 20 6 7 18
List of Acronyms
ACW AMM ASCC ASEAN ASW AWP CAT CEDAW CIM COMMIT CPCC CPT CRC CWC EC EPG GMS HLTF HIV/AIDS ICCPR ICCPR-OP1 ICCPR-OP2 ICERD ICESCR ICRMW ILO IPEC Komnas HAM MOU NCRC NGOs OAS OP-CEDAW OP-CRC-AC OP-CRC-SC OP-CAT SEA SOM ASEAN Committee on Women ASEAN (Foreign) Ministerial Meeting ASEAN Socio-Cultural Community Association of South East Asian Nations ASEAN Sub-Committee on Women ASEAN Womens Programme Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Elimination of All Forms of Discrimination against Women Inter-American Commission of Women Coordinated Mekong Ministerial Initiative Against Trafficking (Vietnam) Committee for Protection and Care of Children European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child (Philippines) Council for the Welfare of Children European Commission Eminent Persons Group Greater Mekong Sub-region High Level Task Force Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and Political Rights-Individual Complaints Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Labour Organization International Programme on the Elimination of Child Labour National Commission on Human Rights (Indonesia) Memorandum of Understanding (Myanmar) National Committee on the Rights of the Child Non-Governmental Organizations Organization of American States Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment South East Asian (ASEAN) Senior Officials Meeting
SOMY TAC UDHR UN UNIAP UNICEF UNOHRC VAP
(ASEAN) Senior Official on Youth Treaty of Amity and Cooperation 1976 Universal Declaration of Human Rights United Nations United Nations Inter-Agency Project on Human Trafficking United Nations Childrens Fund United Nations Office of the Human Rights Commissioner Vientiane Action Programme
EXECUTIVE SUMMARY
The establishment of a regional human rights mechanism in Asia has been a longstanding concern in the United Nations and for the peoples of the ASEAN region. A regional human rights mechanism is important in order to hold human rights violators accountable for their acts at regional and international levels, especially when there is no adequate domestic remedy. As women and children constitute more than half of ASEAN population, and are also recognized as vulnerable disempowered groups deserving of special protection, it is important for ASEAN to take action to develop a mechanism to promote and protect the rights of women and children. A specialized ASEAN Commission on the Promotion and Protection of the Rights of Women and Children can play a role in filling gaps which cannot be tackled by a general human rights mechanism, and in doing so, aid in empowering women and children.
As the establishment of such an ASEAN Commission is now being envisioned by ASEAN (as part of the Vientiane Action Programme) it was decided that an analytical review of the legal and political commitments to the promotion and protection of the rights of women and children in ASEAN, a study of models of existing regional human rights machineries from around the world are needed in order to finally provide recommendations for the development of an effective and acceptable specialized body for ASEAN.
In 2005, at a meeting in Lao PDR, ASEAN Senior Officials tasked the Working Group to assist in the implementation of certain VAP programme areas, including the establishment of a commission on the promotion and protection of the rights of women and children. With the support of the SEARCH (South East Asian Regional Cooperation in Human Development Project) the Working Group requested the Office of Human Rights Studies and Social Development, Faculty of Graduate Studies, Mahidol University, to conduct this study. The study has been a participatory process. The team organized two regional consultative meetings with relevant
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government agencies, representatives from the human rights and specialized institutions, NGOs working on the issues of the rights of women and children, as well as academics, and undertook extensive documentary research, particularly of country reports submitted to the UN by ASEAN state parties. The four areas of focus by the study team included 1) violence against women; 2) discrimination against women and children; 3) trafficking in women and children; and 4) the four principles of child rights, namely child protection, child survival/development, the best interests of the child , and child participation.
The report is divided into five parts, including a background on ASEAN and human rights and an overview of the legal framework, the existing policies and protection mechanisms in ASEAN relating to both the rights of women and the rights of children. The study also includes a review of human rights mechanisms and specialized regional human rights machineries existing in other regions with a view to learning from their experience. The report concludes with practical recommendations made during consultations on how best to develop an effective ASEAN Commission on the Promotion and Protection of the Rights of Women and Children.
In the first chapter the report provides an overview of ASEAN and human rights. ASEAN was established in 1967 with, among other purposes, to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the UN Charter, which at its core promotes and encourages respect for human rights and fundamental freedoms for all without discrimination as to race, sex, language or religion. Although there are no specific ASEAN documents to date that focus
exclusively on human rights, the concept of the respect for human rights has been mentioned in various declarations, communiqus and speeches by ASEAN leaders and senior officials over the years. In the early 1990s ASEAN issued joint
communiqus emphasizing the acceptance of human rights by all ASEAN states but noting that implementation of human rights in the regional context should not violate national sovereignty. And in 1993, ASEAN included a specific section devoted to ASEANs commitment to human rights in its Joint communiqu of the 26th ASEANAMM, and for the first time considered the establishment of an appropriate regional - ii OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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mechanism on human rights. After a period of inactivity on the issue the ASEAN Vision 2020 adopted in 1997 incorporated many principles of human rights, such as the principle of non-discrimination, and the promotion of democratic societies. Under this Vision, a series of road map were adopted, including the Hanoi Plan of Action (1999-2004) which listed human rights activities which were to be implemented within a given time frame. These activities included the proper implementation of CEDAW and the CRC and the establishment of a center for the exchange of human rights information. However in retrospect, only 2/3 of these activities were ever implemented.
In 2004, ASEAN adopted its most ambitious policy agenda which includes human rights - the Vientiane Action Programme (VAP). In it ASEAN committed to a stock-taking of existing human rights mechanisms and bodies, the formulation of an MOU to create a network among human rights institutions as well as a work program and cooperation system, an elaboration of the ASEAN instrument on the protection of the rights of migrant workers and, the establishment of an ASEAN Commission on the promotion and protection of the rights of women and children. The Working Group for an ASEAN Human Rights Mechanism, who ASEAN now recognizes, in ASEAN Charter, as a stakeholder, should be given recognition for its efforts in advocating for this agenda. In November 2007, the ASEAN leaders adopted the ASEAN charter, which all ten countries have already ratified. Article 14 of the Charter provides for the establishment of an ASEAN human rights body.
ASEAN states have made a rather significant progress in the ratification of international instruments on human rights. As of March 2008, all countries in ASEAN have ratified CEDAW and the CRC, most have ratified relevant ILO conventions, and half have ratified the ICCPR and the ICESCR. There are also now four functioning national human rights institutions (in Indonesia, Malaysia, the Philippines, and Thailand), plus a number of thematic human rights institutions. ASEANs readiness and openness to engage with civil society has already seen improvement in the last few years and ASEAN has been taking positive steps to become a people-centred organization, though there are still great challenges. While ASEAN has made some
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progress in acknowledging human rights since the early 1990s, the test for ASEAN will be to living up to their commitments.
Although there have been a few ASEAN declarations and action plans specific to the advancement of women and protection for children in the last decade, and the two groups were recognized as groups for special attention in the ASEAN Vision 2020 and the Hanoi Plan of Action, it was truly not until 2004 that concrete steps were taken by ASEAN to promote the specific rights of women and children. So far, issues surrounding the well-being of women and children are being carried out under the ASEAN Functional Cooperation Programme. Womens issues are dealt with by the ASEAN Committee on Women, but there is no specific body to address the issues of children. The VAPs inclusion of the clause to establish an ASEAN Commission on Women and Children laid the most solid foundation for the setting up of a human rights monitoring body.
The second chapter focuses on ASEANs commitment to the promotion and protection of the rights of women, with a particular emphasis on the laws, policies and machineries available at both national and regional levels. As all ASEAN countries are parties to CEDAW, with some reservations, as well as other international agreements, they have obligations to respect, protect and fulfill the human rights of women. Currently, various programs and projects under the ASEAN Functional Cooperation Programme are geared towards the improvement of the quality of life of women and children.
Here, the report discusses in detail the legislative measures, and related policy and administrative measures, launched by each ASEAN state to combat three specific problems affecting womens human rights, namely discrimination against women, trafficking in persons, and violence against women. Strategies states have used include the revision and amendment of existing laws which are discriminatory to women (such as family and marriage law, citizenship law, land law, and labour law), and the drafting and enactment of new laws addressing specific problems (sexual violence, domestic violence and trafficking). The chapter also outlines the CEDAW Committee recommendations over the past twenty years which have applied to - iv OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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ASEAN countries. This includes the recommendations for the establishment of national machinery, institutions and procedures to monitor the situation of women, advise on the impact of government policies and implement strategies and measures to eliminate discrimination against women. This recommendation has been wellreceived by ASEAN countries, although the national machinery which exists for womens advancement has varying structures and degrees of authority in each country. Only three countries have established a womens ministry to specifically oversee womens issues. More commonly, a national commission/committee for women has been established. The UN Committee on CEDAW has commented on the inadequate institutional structures, the insufficient institutional visibility and decisionmaking power, and the lack of human and financial resources in some of these bodies.
Overall the study shows that ASEAN has shown some efforts to comply with international standards of womens human rights. This is evidenced in the practical endeavors to deal with specific problems such as human trafficking in women and girls and violence against women. Unfortunately most ASEAN countries have not enshrined a clear legal definition of discrimination against women in their domestic laws as called for by CEDAW. Only a few countries have specifically enacted laws to eliminate gender discrimination and promote equality between women and men. In several countries, the principle of non-discrimination and gender equality is enshrined in constitutional provisions or other related laws, however Vietnam is the only country with a specific Gender Equality Law which was passed in 2006. It is expected that similar anti-discrimination and gender equality laws will be enacted in other countries.
In regards to the trafficking in persons, especially of women and girls, a few ASEAN countries have enacted specific anti-trafficking legislation. At the regional level, all ASEAN countries collectively adopted a Declaration Against Trafficking in Persons Particularly Women and Children in 2004, and six Greater Mekong Sub-region countries have signed the COMMIT MOU. Regarding violence against women, several ASEAN governments have passed laws that deal specifically with the issue of domestic violence. In 2004 ASEAN also collectively adopted the Declaration on the Elimination of Violence Against Women in the ASEAN Region. -vOHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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Yet the study shows that there are still actual and relative gaps in the application of human rights protection afforded to women in ASEAN countries. Often traditional ideas and practices which hinder the realization of gender equality and womens human rights are still strong in certain areas or communities within the region, and the existence of relevant laws do not necessarily translate into womens enjoyment of these rights. Nonetheless ASEANs efforts to comply with the international standards of womens rights can be interpreted as the region being poised to take responsibility and demonstrate its accountability for the human rights and well-being of women in the region. The existence of a regional mechanism, such as an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children, would immeasurably help to promote womens enjoyment of their human rights.
The third chapter provides a review of the legal and political commitments to the human rights of children in ASEAN and ASEAN countries, specifically under the CRC, to which all are party, and through legislation and national machineries. It notes that there is no specific ASEAN body which addresses the issues of children. Although historically children and youth have been mentioned in various official ASEAN policy documents, the focus has largely been on youth development and youth employment. Statistics compiled by the ASEAN Secretariat do not even correspond with the CRC definition of a child. Even though matters regarding youth in ASEAN are given priority as compared to children, ASEAN has committed to the development and welfare of children.
The ASEAN Plan of Action for Children, adopted in 1993, is the first ASEAN document dealing with childrens issues. Its objective was to provide a framework for promoting regional cooperation for the survival, protection and development of an ASEAN child, but unfortunately there is no explicit reference to the rights of a child. In the absence of an institutionalized ASEAN committee/sub-committee for children, ASEAN designated a Childrens Desk Officer both at ASEAN and at national levels to coordinate regional programmes on children with relevant ASEAN bodies and commissions involved in childrens issues. Other ASEAN documents which reflect the commitment of ASEAN to children include the Hanoi Plan of - vi OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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Action (1998), the ASEAN Declaration Against Trafficking in Persons, particularly Women and Children (2004), and the Declaration on the Commitments for Children in ASEAN (2001) which was guided by the CRC. The latter document is humanrights based as it fully incorporates the very essence of the CRC and relevant documents relating to the rights of the child. In it ASEAN states agreed to, amongst other commitments, to: 1) promote regional cooperation for the survival, development, protection and participation of ASEAN children; 2) intensify ASEAN economic and social development cooperation so as to eradicate the scourges of poverty, hunger and homelessness, which have a far-reaching impact on children, in order to promote their welfare and well-being; 3) protect, respect and recognize the rights of all children, including those of indigenous people, consistent with the customs and traditions of their respective communities; and 4) recognize and encourage respect for childrens rights through mutual sharing of information on the rights of the child by ASEAN members. Unfortunately the implementation of this Declaration is difficult to trace at the regional level, and implementation was more clearly seen at the national level. The chapter also notes that while there is an ASEAN Committee on Youth and an ASEAN Committee on Women, the Sub-Committee on Children mentioned in the 1993 ASEAN Plan of Action has yet to be established
The report continues by outlining ASEAN members adherence to and implementation of activities under the CRC and the Optional Protocols. The four principle pillars enshrined in the CRC are: 1) non-discrimination; 2) the best interest of the child; 3) child survival, child development and child protection; and 4) child participation, and by ratifying and acceding, ASEAN countries have agreed to fulfill obligations to respect, protect and promote the rights of children, though implementation of all pillars remains problematic in most countries. The area of child survival, protection and child development are the most developed among the four principles. Although all ASEAN members have committed to abide by the CRC, six countries have made declarations and/or reservations to certain articles, generally noting that national laws and/or constitutions remain paramount. The report also shows that submission of state reports to the CRC Committee constitutes a serious challenge to ASEAN countries. Most state parties (with very few exceptions) have
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failed to submit their reports in due time. To date Vietnam is the only country to have submitted reports required for the two Optional Protocols in a timely fashion.
Currently most, if not all, ASEAN countries have tailored, or at least put efforts to tailor, their national legislation to the principles set forth in the CRC. ASEAN members have also established bureaucratic and specialized institutions to ensure the implementation of child protection and welfare. Programmes and policies have specifically been designed to deal with various childrens rights issues. With the exception of Brunei and Singapore, all other ASEAN countries have formulated both broad-based policies and plans of action on child protection, often reflecting some specific problems of children in a particular country (e.g. Indonesias Jakarta Declaration on Birth Registration, and Vietnams Prevention and Resolution of the Problems of Street Children, Sex-abused Children and Children who are overworked and/or working in poisonous and/or dangerous conditions. Guidelines and plans to fight child labour are also found in Indonesia, the Philippines, Thailand and Vietnam. Various national machineries to promote and protect the rights of the child have also been established in all countries without exception. In general, apart from line ministries like education and public health, issues pertaining to children are taken care of by the ministries or departments dealing with social welfare.
The study shows that ASEAN countries have succeeded in putting in place laws, policies and mechanisms which provide for goods and services for children (such as food, health care, education and social security) but the implementation differs according to the level of economic and social development in each ASEAN country. To varying degrees, ASEAN states have also enacted laws and policies dealing with child protection, such as combating maltreatment and neglect, the right to be protected from all forms of exploitation, and ensuring rights of children in the justice system. Generally problematic across ASEAN is having legislation related to child-friendly criminal justice and procedures in line with international standards and the CRC. Although legal and political guarantees and implementing mechanisms for child protection are in place in all ASEAN states, there are still laws which are not conducive to protecting the right of the child to life and to development (for e.g. the low age of criminal responsibility in Brunei Darussalam, Indonesia, Myanmar, The - viii OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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Philippines, Singapore and Thailand). Moreover other than The Philippines, there is little evidence of child participation in decision-making which affects children.
While legislative and policy measures related to the specific rights of children are not lacking in ASEAN countries, the study shows there is still a difference in implementation levels from one country to another, and in the non-compliance to international standards. For example, not all countries use the CRC definition of a child every human being below the age of 18 years. In all countries, there are differing definitions of a child for different purposes. Contrary to the CRC, corporal punishment of children is still legal in some countries (Indonesia, Myanmar and Singapore). The report suggests that an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children could act as a clearinghouse and could seek to facilitate the promotion and protection of the rights of children in the region.
The chapter which follows compares lessons drawn from an analysis of existing human rights machineries in Africa, the Americas and Europe. It sets out various models and considerations that should be taken into account as ASEAN determines the regional human rights mechanism that is most appropriate for the region. The report notes that within a very short period, regional human rights mechanisms have evolved into an essential part of the international institutional structure in the field of human rights. They provide critical infrastructure in which respect for and understanding of human rights can flourish. In order to assess the available models, three existing regional human rights mechanisms the Inter-American System, the African system, and the European system - are evaluated in order to consider their strengths and weaknesses.
The Inter-American system was created in 1945 and is the oldest ever regional organization. The Organization of American States (OAS) was established and it adopted a Charter and the American Declaration on the Rights and Duties of Man (the American Declaration) which are similar in scope to the UDHR. In 1969 the OAS signed the American Convention on Human Rights (the American Convention) and then various applicable protocols. The most important for the purposes of this study is - ix OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women which is very wide-ranging dealing with all public and private forms of violence against women: physical, sexual and psychological. Emphasis is placed on the importance of education to change patterns of patriarchal domination, often expressed through violent means. States are required to submit periodic reports as to the implementation of the obligations under the Convention. The Inter-American Commission on Human Rights was established in 1959 and is responsible for educating and promoting the human rights and duties under the Convention. The Commission conducts in-country studies and organizes thematic and country specific rapporteurships. Complaints can be received from individuals and State parties. With the creation of the Inter-American Court of Human Rights in 1979, the Commission can now send unresolved matters for hearing and binding resolution with respect to states that have ratified the protocol. In effect the Commission is now the investigatory and diplomatic enforcement arm, and also serves as the gatekeeper for complaints to proceed to the court for determination. The Commission can also request a state to adopt precautionary measures to prevent irreparable harm to persons.
In 1928, the first regional institution was established in the Americas focusing exclusively on the rights and issues of women the Inter-American Commission of Women (the CIM). Its functions are wide-ranging, including identifying areas to foster gender equality, and devising strategies aimed at rectifying discriminatory practices and procedures. The CIM has the power to carry-out in-country investigations and comparative studies. It acts as a promotional, research and advocacy body. The report notes that these strategies have proven crucial in placing womens rights on the agenda in the region. Nevertheless there are also many weaknesses inherent in the design, mandate and functioning of the CIM. Its delegates are government officials so cannot be considered independent, and there are no specific mandates or expertise that are required. With an overly inclusive mandate and low budget and resources, the CIM ends up being stretched thin, and at the end of the day merely acts to study and promote womens rights, rather than protecting and empowering women to exercise and advance their rights. Bi-annual meetings and lack of staff make it extremely difficult for the CIM to take on large or complex projects. -xOHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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They also lack any enforcement capacity. As of 1994, the Americas now have a Special Rapporteur on the Rights of Women. The Special Rapporteur can carry out on-site country visits and produce thematic reports. Childrens rights have not figured as significant in the human rights systems of the Americas. A special Rapporteur on Children was appointed in 1999.
The Inter-American System for protecting human rights has grown over the years from a relatively weak system into one that is more robust. The system commenced with a Commission which had a relatively weak mandate and no enforcement powers to one with greater powers, including the right to receive communications from individuals. The Inter-American court has indeed taken on some important human rights cases, for e.g. the extrajudicial killing of street children. The region however continues to face enormous human rights challenges.
The main instrument governing human rights in the African Union is the African Charter on Human and Peoples Rights (the African Charter). It is distinctive in three main areas: its preoccupation with peoples rights; its emphasis on obligations; and its emphasis on the indivisibility of rights. The emphasis on peoples rights and on obligations results from the desire to make the African Charter distinctively African. Replacing individual rights with collective rights reflects the African view that communities rather than individuals are the focal points for organizing African societies. Individuals have obligations to their community and society. Meeting social, economic and cultural needs are as important as civil and political rights, given the level of deprivation and poverty that many Africans endure. Generally Western countries are hesitant to place social and economic rights on the same level as civil and political rights.
In recognition of the specific rights and measures needed by women in order to promote gender equality, the African Union Constitutive Act was passed, and the African Union adopted the Protocol to the African Charter on Human and Peoples rights on the Rights of Women in Africa (the African Womens Protocol). The Protocol covers a comprehensive array of rights for women. The African Commission has also established a Special Rapporteur on Womens Rights who has a broad - xi OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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mandate to study the situation of womens rights in the region, to assist states to ratify and implement the Protocol, to collaborate with NGOs and to establish guidelines and recommendations. The African Charter on the Rights and Welfare of the Child (the African Childrens Charter) was adopted in 1990, and the emphasis is on the best interests of the child through the provision of services and the protection from abuse. The African Childrens Charter is overseen by a Committee of Experts on the Rights and Welfare of the Child, who unfortunately have no enforcement mechanisms, country reporting requirements, monitoring or similar types of powers.
The African Commission on Human and Peoples Rights (the African Commission) is the body, comprised of independent human rights experts, which is responsible for promoting, interpreting, and investigating breaches of the African Charter and the African Womens Protocol. Though held infrequently, the African Commission has attempted to make its meetings as public and productive as possible. Some NGOs have been granted observer status with the African Commission. The Commission reviews state reports every two to four years and establishes thematic rapporteurs on specific issues. The study notes that thematic reports are perceived as less threatening to individual State investigations since they address single issues, involving several of the member states. The Commission also accepts individual and inter-state complaints which it investigates and attempts to mediate a settlement. The African Court on Human and Peoples Rights was established in 2007 but the only direct access is for States or the Commission. The African Commission is therefore the gatekeeper for determining which complaints will proceed to the Court. It is too early to comment on how this system is working in practice, but it does enjoy broad jurisdiction. It will hear cases concerning the Charter as well as any other relevant international instruments ratified by the State concerned. The court is empowered to make binding decisions.
The African approach to creating a regional human rights mechanism was a cautious one. It commenced in 1981 with a relatively weak Charter and even weaker institutional support. The Commissions mandate and powers were limited, time allocated to meetings was sporadic and brief, and staff and financial resources were limited. Nevertheless, with time the African Commissioners, by means of liberal - xii OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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interpretations of their role and powers, have been able to cultivate the groundwork for a more serious respect for human rights in Africa, and slowly building a culture of human rights in the region. The Commission has been remarkably open to civil society groups playing a major role in the system, both on reporting on the state of human rights at the country level, and on specific thematic reports. The inclusion of NGOs has been beneficial to both parties it has assisted the African Commission to remain informed on current issues in the region, and also raised the profile and legitimized the important work being carried out by NGOs in the region. A key concern of note has been the lack of compliance by states with the recommendations of the Commission. This has been rectified somewhat by the fact that recommendations are now considered by the Executive Council (comprising the Ministers of Foreign Affairs) rather than the African Union Assembly. This has resulted in a more robust accountability system, bolstered by the establishment of a court with the power to make binding decisions on the state parties.
Europe has several regional mechanisms for protecting human rights: the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe. The study focuses on the Council of Europe (the Council) as it is the most longstanding and influential. Once a state is admitted to the Council, any violation of human rights and fundamental freedoms can result in suspension and/or expulsion. The governing instrument in the Council is the European Convention on Human Rights and Fundamental Freedoms (European Convention) which was modeled on the UDHR and focuses primarily on civil and political rights. There is clear prioritization and ranking of rights. The European Courts decisions on the Convention are binding although the Court has no enforcement mechanism. The European Convention does not require country reports.
There are only a few specific rights regarding women in the European Convention addressing gender inequality and discrimination. The Council of Europe has also undertaken significant work to address the issue of gender equality. The 1979 Committee on the Status of Women evolved into the Committee on Equality between Women and Men in 1981. The Council of Europe adopted the European Convention on the Exercise of Childrens Rights in 1996. It includes a broad mandate to include - xiii OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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children in decision-making processes affecting them. The Convention also establishes a Standing Committee to assist states in implementation and to strengthen and promote participation rights of children.
The Council of Europe initially adopted both a court and a commission, but when the courts decision became binding on all State parties in 1998, the commission was abolished. The European Court on Human Rights is the oldest, most respected and effective regional court for human rights. It is comprised of judges from each member state, and accepts both State and individual complaints and acts similar to an appeal court. Although decisions are binding, the rulings do not have direct effect on national law, but damages and costs may be awarded. The European Court may also issue advisory opinions. A European Commissioner on Human Rights also exists, whose mandate is primarily educational, promotional and advisory. The European system, which is the best financed and resourced regional human rights mechanism, is largely based on a legal system, relying on a court with binding decision-making powers. But the report notes that courts are not always the best institution for dealing with systemic or cultural forms of discrimination. The cost and duration of such a complaint system are out of reach of the poorest, most vulnerable people, who are most likely to be subjected to human rights abuses and therefore other systems have been introduced. Although there is no provision for the examination of country reports in the European Convention, the Council of Europe may request information from any State
Human rights mechanisms need to evolve within the growing understanding and acceptance of human rights and be culturally appropriate to a specific region or group of people. There is no one single solution. Nonetheless, the report highlights that there are lessons that can be drawn from the experiences of the three regional systems when ASEAN decides upon the type of mechanism it will have, and the coverage and types of rights and obligations, and the role of national human rights institutions and civil society groups. It is very important to point out that all three regions subsequently established specific bodies to deal with the rights of women, due to a failure of the original general human rights body to make any significant progress on gender equality and on levels of violence against women. - xiv OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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In the ASEAN region, there is an acknowledgement that rights should be indivisible. As in the African system, obligations could also be imposed in addition to rights. ASEAN is more likely to create a Commission rather than a court system as exists in Europe, and this is what was specifically outlined in the VAP. There is strong indication that there will indeed be both a regional human rights body and a separate commission dealing with rights of women and children. ASEAN must acknowledge the importance of appointing or electing commissioners who are independent from government to ensure legitimacy. Experts in human rights would also ensure legitimacy and authority, and only allowing one renewal term would assist in ensuring new ideas and insights. Gender parity in the composition of the mechanism is also paramount. An important role of a human rights mechanism is also to engage in education and training on human rights in the region. Of great value would be for the commission to hold a specific mandate to train certain pivotal state actors, who often work on the frontlines of human rights abuses (for e.g. the military, police and corrections staff). The commission should also have the power to investigate and report on widespread abuses or systematic forms of discrimination against human rights generally and/or the specific rights of women and children. The commissioners should also have the ability to undertake thematic investigations. The commission must also have the authority, backed by ASEAN, to take precautionary measures to prevent or curtail a serious abuse of human rights. The development of national human rights institutions should continue to be supported, as human rights obligations are best implemented at the national level. Regional mechanisms, however play a key role in capacity-building, educational and training, and creating linkages between national institutions. The report suggests that continued dialogue between the commission and civil society must be ensured. Annual workshops with relevant NGOs could assist in building and elaborating the annual work plan of the Commission. Adequate financial resources for a commission are necessary, as is an appropriate funding formula which allows for independence of action. Finally, the report-writing requirements should not create extra burdens for States and should be harmonized with other UN reporting requirements.
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This chapter points out that there are a number
of
influences
and
discrete
decisions that combine to create appropriate human rights mechanisms for specific regions. Although some critics suggest that a regional mechanism which focuses on the rights of women and children is a soft option, this view does a great disservice to the very important rights that women and children have been granted at the international level and fails to take into account the terrible abuses that both groups still suffer. Human rights advocates, NGOs and ASEAN itself should remain committed to the fact that women and children are the two most vulnerable of the three main groups in our society. There are also sub-groups that are even more marginalized and vulnerable than others, and who should be given priority attention.
While ASEAN continues to work on the most appropriate human rights body enshrined in the Charter, it should consider the Commission on the Promotion and Protection of the Rights of Women and Children as a regional human rights system that concentrates on two of the worlds most vulnerable groups. This would be recognition that most human rights systems have not adequately addressed womens rights. This is illustrated by the fact that three current regional systems have all had to set up additional bodies to address the rights of women. The report points out that because there is great anticipation in the ASEAN region around the advent of its first human rights mechanism, there will be disappointment and criticism if the chosen model is not the strongest one. But it will represent much-needed progress in the region, and it will, undoubtedly continue to be developed and improved.
The last chapter provides the final thoughts on the advantages of a regional human rights mechanism and value-added of a regional specialized agency. It also attempts to make recommendations for the establishment of an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children. There has been some question as to the value of developing regional human rights mechanisms. Despite the legitimacy of these concerns, the report shows that they should not overshadow the real benefits derived from establishing a regional human rights mechanism. Regional human rights mechanisms play a crucial role in assisting regions to create a culture of human rights for their people and especially for vulnerable groups. This unique role cannot be accomplished by national human rights institutions or universal - xvi OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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mechanisms. National human rights mechanisms, although important, often have too narrow a mandate to investigate broad-ranging human rights abuses and infringements, and rarely take into account how recommendations/remedies may affect a bordering country. They also may be subject to the whims of government in power. Universal systems, such as UN human rights mechanisms, are generally too broad and diverse in their concern and scope to understand or effectively address regional nuances in language, culture, institutions and ethnicity. A regional mechanism is best placed to understand the unique tensions and conflicts in the region, and can effectively place recommendations within the appropriate economic, social, political and cultural context within a region. A regional mechanism enables neighboring countries to provide support and assistance to each other. It also may be more palatable for States to take advice from neighboring States. These regional mechanisms can provide technical and moral support to national institutions. National and regional institutions can interrelate in a mutually reinforcing manner. A regional human rights mechanism also furthers self-determination of the region, since it uses reports derived from that region and not on external commentaries. It will increase the visibility and credibility of ASEAN in the international community and make an important contribution to peace and security in the Southeast Asian region.
This chapter responds to the questions of whether a specialized body for women and children is necessary. The value-added of an ASEAN commission on the rights of women and children is that it will nurture regional responses to issues pertaining to their rights, and lift the standards of states behavior in these areas. For countries that do not have an existing human rights mechanism, the commission can serve as a pragmatic entry point to address human rights concerns. It can also allow greater access for recourse for human rights violations, and serve to strengthen ASEANs commitment to and proactive implementation of CEDAW and the CRC. A transborder institution can also assist in designing and applying transnational measures to fight crimes like trafficking which predominantly affect women and children. The Commission would help to bridge the gap between national and international standards, and in reporting obligations. The creation of such specialized commission would be a clear indicator of the political will and concrete commitment of regional ASEAN leaders to show the importance of the promotion and protection of the rights - xvii -
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of women and children in the region. The current climate is conducive to establishing such commission, and it is now time for ASEAN leaders to transform the many existing policy documents and statements into a legally binding instrument with a monitoring body. The key function of the proposed commission will be not just in creating programs or cooperation, but be in creating a legal framework in place, creating an enabling environment for a rights-based approach.
The establishment of any human rights mechanism should ideally be based on the Principles Relating to the States and Functioning of National Institutions for the Protection and Promotion of Human Rights (the Paris Principles) with an emphasis on: independence from government, a pluralistic composition and representativeness; having broad mandates with adequate powers, and sufficient resources and accessibility. It should have a wide spectrum of functions and obligations to respect, protect and fulfill prescribed rights. It should also have a mandate to assess the human rights situation in the region, and where appropriate, the adjudication and enforcement of human rights laws. In order to be effective such mechanism should have powers to educate, recommend, mediate, adjudicate, enforce and even censure and provide remedies. It must display high standards of competence and performance, be impartial and independent, approachable and open, and be accountable to ASEAN states, ASEAN and its stakeholders. Women and children must be able to participate actively throughout the process to ensure their views and concerns are heard.
An ASEAN Commission on the Promotion and Protection on the Rights of Women and Children should be an inter-governmental and independent body with an established legal status. The drafting process should be inclusive. The draft should aim to be ready by 2008 and take effect by 2009. The rights of women and children to be covered must not be lower than the international standards covered by CEDAW and the CRC. The Commission should be gender-balanced and have representation from all ASEAN members, and the principle of transparency, inclusiveness and civil societys participation should be reflected and practiced throughout the selection process. The mandate of the Commission should be to: assess/review (monitor) the human rights situation in the region; to access affected vulnerable groups; to advise on needed actions to prevent and remedy situations, and to protect rights; to act where - xviii -
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national remedies have been exhausted and where states have agreed to become party to the ASEAN commission; and to advocate/cooperate with key partners/stakeholders to protect those affected vulnerable groups. The Commission must also be accountable to all stakeholders. The promotional mandate should cover the conduct of activities that directly contribute to the empowerment of women and children through awareness-raising, skills training, capacity-building, consultations, dialogues, research studies, case studies and the sharing of best practices etc. The protective mandate should be limited to an advisory or recommendatory function, yet open to study situations of widespread and gross violations of womens and childrens rights in the region, request the submission of reports from states, and issue (non-binding) recommendations. Accredited civil society organizations should be allowed to participate in the establishment and functioning of the Commission, and shadow reports should be encouraged. The mandate of the Commission should follow existing guiding principles of ASEAN, namely the respect for state sovereignty, noninterference in internal affairs and consensus-making, but this should not hinder the effective functioning of the Commission. While not challenging government, the Commission should also not be used as window-dressing to raise ASEANs image on human rights, without the necessary accompanying action. The funding of the Commission should come from primarily from the contribution of ASEAN members, with some external support.
The report highlights that there are important principles to be kept in mind while developing such an ASEAN Commission. The commission should be a mechanism a means to an end. It should be informed by international standards, while drawing from the wisdom of the ASEAN region. The commission should be nondiscriminatory, covering both nationals and non-nationals, uphold the universality, indivisibility and interdependence of all human rights, and uphold all rights (and obligations) consistent with international law.
Such a mechanism for the rights of women and children is being viewed as an entry point to engaging ASEAN in human rights promotion and protection with the goal of the establishment of an appropriate human rights mechanism with broad mandates. While there is concern within ASEAN that human rights are still a sensitive topic, - xix OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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ASEAN governments have shown comfort in dealing with issues of the rights of women and children. It is still to be decided whether ASEAN will create a mechanism which would be merely promotional, or a protective entity (with or without an investigative mandate and/or legally binding decisions), or a hybrid of both. Ideally it would have both a promotional and protection mandate, as provided in the VAP. Perhaps it is necessary that ASEAN states be encouraged to join upon readiness with a fixed time frame to bring all on board.
There are already policies, programmes and institutions relating to the promotion and protection of the rights of women and children in existence of ASEAN and any new mechanism must build on what already exists. It is also of immense importance for ASEAN to engage civil society in the process of the establishment of an ASEAN commission. Dialogues and means of communication must be established between governments and civil society, and it is, of course, essential to include women and children themselves. The contextual particularities (socio-cultural, political and economic) of each ASEAN state must also be taken into consideration. Concrete measures and programmes should be formulated to bridge existing gaps. The sharing of national experiences and best practices and mutual learning is highly recommended. The regional mechanism should not only link with existing national machineries but also promote the creation of national human rights institutions to deal specifically with women and childrens rights. The development of easy and inexpensive ways to resolve human rights disputes will also be necessary.
The chapter concludes that as the VAP draws closer to completion, it is now necessary to accelerate the process of creating a Commission, and it should be seen as both an end it itself, as well as a means to something greater. The proposed
Commission has the potential of being an incredibly powerful body that focuses specifically on the concerns of women and children. Rather than wait for the perfect model for the mechanism, the time is ripe right now to move forward, even if it may be in incremental steps.
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CHAPTER I Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children
Introduction : ASEAN and Human Rights in Key Documents
ASEAN was established in 1967 as a political and economic entity with seven objectives as stated in the ASEAN Declaration of 1967 (Declaration). The first two were to: a) accelerate economic growth, social progress and cultural development; and b) to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter (UN Charter). Although the term human rights was not explicitly used in the Declaration, by affirming adherence to the principles of the UN Charter, the five founding members 1 of ASEAN have inevitably accepted the purposes and principles set forth therein. Art.1 para.3 of the UN Charter stipulates that states resolve to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race, sex, language, or religion. Art.55 further reiterates that ...the United Nations shall promotec) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion.
However, if one examines ASEANs core documents such as the Bangkok Declaration, Treaty of Amity and Cooperation of 1976 (TAC) and many others, there are few references to the term human rights. Although ASEAN does not have specific legal documents on human rights, the term has been mentioned in a range of non-legal binding documents such as joint communiqus and joint
declarations/statements both among its members and with dialogue partners. The term human rights was used for the first time in the 1978 Joint Declaration of ASEANEC Ministerial Meeting, where it was stated that ASEAN agreed that cooperation
1
Indonesia, Malaysia, The Philippines, Singapore and Thailand.
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with the EC will serve their people by promoting social justice and human rights. 2 Para.7 of the 1991 Joint Declaration notes that: The Ministers were of the view that international cooperation to promote and respect for human rights and fundamental freedoms for all without distinction as to race, sex and religion should be enhanced. 3 It is commonly acknowledged that one of the principal conditions for cooperation with European Community is adherence to human rights and fundamental freedoms.
In the 1990s there have been some positive changes pertaining to human rights within ASEAN. A number of official statements containing the term human rights have been in circulation. In 1991, ASEAN affirmed its original position in regards to human rights in its joint communiqu stating that: They agreed that while human rights are universal in character, implementation in the national context should remain within the competence and responsibility of each country, having regard for the complex variety of economic, social and cultural realities. They emphasized that neither the international application of human rights be narrow and selective nor should it violate the sovereignty of nations. 4 Although this 1991 joint communiqu demonstrates that ASEAN still guards against certain concepts of human rights, the universal nature of human rights is more or less accepted by ASEAN leaders (with certain reservations). This same position was repeated again in the Joint Communique of the 25th ASEAN Ministerial Meeting held in Manila in 1992. 5
ASEAN made a marked change in its position on human rights in 1993. For the first time in ASEAN history, a separate section on human rights was incorporated in their joint communiqu. The joint communique of the 26th ASEAN-AMM held in Singapore in July 1993, just about a month after the Vienna World Conference, contained three elaborated paragraphs including: ASEAN recognizes that human rights are interrelated and indivisible, it affirms its commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration. It agreed that ASEAN should consider the establishment of an appropriate regional
2 3
Joint Declaration of the 9th ASEAN-EC Ministerial Meeting, 21 November, 1978, Brussels, Belgium. Joint Declaration of the 9th ASEAN-EC Ministerial Meeting, 30-31 May, 1991, Luxembourg. 4 Joint Communique of the 24th ASEAN Ministerial Meeting, 19-20 July, 1991, Kuala Lumpur. 5 See para. 18 of Joint Communique of the 25th ASEAN Ministerial Meeting, 21-22 July, 1992, Manila, Philippines.
-2OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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mechanism on human rights. 6
The scholar Dino Patti Djala commented that
ASEANs declaration of its commitment to the Vienna Declaration on Human Rights by including a human rights section within a lengthy AMM joint communiqu was perhaps more in accordance with the global discourse rather than strong affirmation of its human rights policy. This comment proved to be true because for the following five years, any section on human rights and even the term human rights disappeared from any ASEAN joint communiqu. Only in 1998 when the world commemorated the 50th anniversary of UDHR, human rights reappeared in two paragraphs of the AMM joint communiqu, one noting the establishment of the Working Group for an ASEAN Human Rights Mechanism, and another recognizing the importance of international conventions and declarations of human rights, and the rights of women and children in particular.
Just one year earlier in 1997, the ASEAN Vision 2020 was adopted in Kuala Lumpur emphasizing a community of caring societies. The ASEAN sees vibrant and open societies consistent with their respective national identities, where all people enjoy equitable access to opportunities for total human development, regardless of gender, race, religion, language, or social and cultural background. ASEAN envisions SouthEast Asian (SEA) nations being governed with the consent and greater participation of the people, with its focus on the welfare and dignity of the human person and the good of community. Though this policy statement did not directly mention human rights, many human rights elements were included such as the principle of nondiscrimination, and democratic societies where the will and participation of people counted. At the same time, it also mentioned national identities and the focus on welfare and dignity of the human person and the good of community.
Under the ASEAN Vision 2020, a series of road maps including the Hanoi Plan of Action was adopted for the implementation for a period of 5 years from 1999-2004. The Hanoi Plan of Action listed activities on human rights to be achieved within a given time frame. These activities included the implementation of the CEDAW and CRC and the establishment of a center for the exchange of human rights information within ASEAN. However, according to an October 2004 assessment study report on
6
Joint Communique of the 26th ASEAN Ministerial Meeting, 23-24 July, 1993, Singapore, para 16-18.
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the progress of regional integration towards ASEAN Vision 2020, only about 2/3 of the activities embodied in the Hanoi Plan of Action had been accomplished as of mid2004.
In its latest policy document, the Vientiane Action Program (VAP) adopted in Vientiane in November 2004, ASEAN has again put forward a much more concrete agenda on human rights. Under the program areas and measures for political development of the ASEAN Security Community, ASEAN has committed to promote human rights through the: completion of a stock-taking of existing human rights mechanisms and equivalent bodies, including sectoral bodies promoting the rights of women and children; formulation and adoption of an MOU to establish a network among existing human rights mechanisms; formulation of a work program for the network; promotion of education and public awareness on human rights; establishment of a network of cooperation among existing human rights mechanisms; elaboration of an ASEAN instrument on the protection of the rights of migrant workers; establishment of an ASEAN Commission on the promotion and protection of the rights of women and children.
It should be noted that the language used in this item is very strong (words such as completion, formulation, elaboration and especially establishment). ASEAN moved away from using the term consider to a more concrete list of commitments. The human rights agenda of ASEAN covers both the promotion of human rights, human rights awareness and protection activities, the establishment of an ASEAN commission on the promotion and protection of the rights of women and children, and designing an ASEAN instrument on the protection of rights of migrant workers. ASEAN has committed in the VAP to come up with a legally binding instrument and mechanisms with legal binding power.
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Three out of seven items under this human rights section pertain to the networking among existing human rights institutions. This could be interpreted to cover not only national human rights institutions, but also other thematic or specialized institutions dealing with specific issues such as trafficking, violence against women and/or specific targets, for instance on women and children.
The tireless efforts and initiatives made by the Working Group for an ASEAN Human Rights Mechanism since 1996 must be given recognition. The accelerated progress made by ASEAN members in the field of human rights (at least in the official documents) has been remarkable and the VAP is one of the most concrete examples of such progress.
ASEAN has also made notable progress in the ratification of international human rights instruments. Table 1 below shows that before 1993 some SEA countries such as Brunei Darussalam and Malaysia had not ratified any international human rights treaties. As of 2008, all ASEAN countries had ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), and half of all the ASEAN members had ratified the ICCPR and ICESCR (including Lao PDR who has signed but not yet ratified).
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Table 1. Status of Ratification of Human Rights Instruments in ASEAN (as of March 2008)
Country Admitted ASEAN ICESCR ICCPR ICCPR-OP1 ICCPR-OP2 ICERD CEDAW OPCEDAW CAT OPCAT CRC OP-CRC- AC OP-CRC-SC ICRMW Convention on the Rights of Persons with Disabilities 7 Optional Protocol to Convention on the Rights of Persons with Disabilities 1Oct2007 s 23May06 a 27Dec95 a 21Nov06 a 18Dec07 s 26May92 a 26May92 a 27Sep04 s 28Nov83 15Oct92 a 11Nov01 s 15Oct92 a 30Mar07 15Oct92 a 16Jul04 30Jun02 27Sep04 s 1Oct07 s 23Feb06 a 23Feb06 a 25Jun99 a 13Sep84 28Feb00 s 28Oct98 5Sep90 24Sep01 s 24Sep01 s 22Sep04 s 30Mar07 s 13Sep07 7Dec00 s 24Feb74 a 14Aug81 8May91 a 20Sep06 a 20Sep06a 5Jul95 a 15Feb95 a 22Jul97 a 15Jul91 a 7Jun74 23Oct86 22Aug89 20Nov07 15Sep67 5Aug81 12Nov03 18Jun86 a 21Aug90 26Aug03 28May02 5Jul95 5Oct95 a 5Oct95 a 7Sep00 s 5Sep99 a 29Oct96 a 28Jan03 a 9Aug85 a 14Jun00 2Oct07 a 27Mar92 a 27Feb06a 11Jan06 a 30Mar07 s 24Sep82 a 24Dec82 a 9Jun82 a 17Feb82 28Feb90 20Dec01 20Dec01 22Oct07 s to Brunei Darussalam 08Jan84 30Apr99 8Aug67 23Jul97 8Aug67 23Jul97 8Aug67 8Aug67 8Aug67 28Jul95 Cambodia Indonesia Lao PDR Malaysia Myanmar Philippines Singapore Thailand Vietnam
Sources: Compilation based on the status of ratifications of human rights instrument, in the Office of the United Nations High Commissioner for Human Rights. www.ohchr.org. visited on March 30, 2008
The progress made in terms of ratifications could be seen also in the commitment to ILO Conventions. All countries, except for Brunei Darussalam have ratified a number of ILO Conventions, Cambodia, Indonesia and the Philippines, in particular. The Table 2 below shows that ILO Conventions relating to child labour No.138 and No.182 were ratified by most of ASEAN countries.
Malaysia have signed this Convention on 8 April 2008 and the Philippines have ratified on 15 April 2008
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Table 2. ASEAN States Ratifications of the ILO Conventions (as of March 2008)
Freedom of association Elimination of forced and Elimination of and collective bargaining compulsory labour discrimination in respect of employment and occupation Country Brunei Darussalam Cambodia Indonesia Lao People's Democratic Republic Malaysia 05/06/1961 23/08/1999 09/06/1998 23/08/1999 15/07/1957 24/02/1969 12/06/1950 23/01/1964 23/08/1999 07/06/1999 23/08/1999 11/08/1958 23/08/1999 07/06/1999 23/08/1999 07/06/1999 13/06/2005 14/03/2006 28/03/2000 13/06/2005 Conv. 87 Conv. 98 Conv. 29 Conv. 105 Conv. 100 Conv. 111 Abolition of child labour
Conv. 138
Conv. 182
11/11/1957
13/10/1958 den.: 10/01/1990
09/09/1997
09/09/1997
10/11/2000
Myanmar Philippines Singapore
04/03/1955 29/12/1953 29/12/1953 25/10/1965
04/03/1955 15/07/2005 25/10/1965 17/11/1960 25/10/1965 den.: 19/04/1979 02/12/1969 29/12/1953 30/05/2002 17/11/1960 04/06/1998 07/11/2005 28/11/2000 14/06/2001
Thailand Viet Nam Total of 10 4 5
26/02/1969 05/03/2007 9
08/02/1999 07/10/1997 07/10/1997 4
11/05/2004 24/06/2003 8
16/02/2001 19/12/2000 8
Note: den. mean Convention denounced C29 Forced Labour Convention C87 - Freedom of Association and Protection of the Right to Organize Convention C98 - Right to Organize and Collective Bargaining Convention C100 - Equal Remuneration Convention C105 Abolition of Forced Labour C111 Discrimination in Respect to Employment and Occupation C138 Minimum Age Convention C182 Worst forms of Child Labour Convention Sources: Compilation based on the status of ratifications of the ILO Convention (Fundamental human rights), in the International Labour Organization. www.ilo.org. visited on March 30, 2008
A further positive development is the establishment of the national human rights institutions. Before 1993, there were only two national human rights commissions in SEA in the Philippines and Indonesia. Now there are four, including the additional two in Malaysia and Thailand. The Cambodian government has committed to establish an independent national human rights institution. Apart from the national human rights commissions which act as individual bodies with mandates to monitor -7OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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state obligations to human rights, there are many more thematic human rights institutions in ASEAN countries.
Positive change can also be seen in the relationship between ASEAN and civil society. The word people was and has always been referred to in most, if not all, early ASEAN documents, but it seemed that people were in fact invisible until 1998 when ASEAN recognized the civil society group, the Working Group for an ASEAN Human Rights Mechanism. In 2000 ASEAN supported the first organization of the ASEANs People Assembly, and then few years later the ASEAN Civil Society meetings. By engaging civil society, ASEAN has been taking positive steps to become a people-centered organization.
No one can deny that human rights issues and the establishment of an ASEAN human rights mechanism, as well as allowing greater participation of civil society in the development process, are still very challenging matters in ASEAN. However, as Tun Musa Hitam, Chair of the Eminent Persons Group (EPG) on the ASEAN Charter stated in Kuala Lumpur during the 5th Workshop on the ASEAN Regional Mechanism on Human Rights, recent developments in ASEAN show that human rights emerge as an important concern in the organization and it is time to go forward rather than recount it. It has been shown that although ASEAN may not make quick progress on human rights there has been some progress. But, only the time and actions to be taken by ASEAN will prove how serious ASEAN is with human rights issues. 8
Generally speaking, ASEAN has been making slow progress in the field of human rights since the early 1990s. The VAP which contains a human rights agenda is considered a leap forward; but it is for ASEAN to prove that they are truly committed to their plan. Immediate and/or progressive implementation of the listed human rights activities is crucial for ASEAN credibility. Another challenge for ASEAN is the ASEAN Charter. In July 2007, ASEAN foreign ministers adopted a draft ASEAN Charter which includes the establishment of an ASEAN human rights body. The Charter was adopted during the ASEAN Summit in Singapore in November 2007. As
8
Statement delivered by Ton Sri Musa Hitam, 5th Workshop on ASEAN Human Rights Mechanism, 29 June, 2005, Kuala Lumpur, Malaysia.
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of March 2008, six countries have already ratified the Charter. 9 Exactly what kind of human rights body ASEAN would be comfortable with is another crucial question both for ASEAN and its people.
ASEAN Commission on the promotion and the protection of the rights of women and children: Background
One of the earliest documents adopted by ASEAN regarding women and children is the Declaration on the Advancement of Women in the ASEAN Region adopted by ASEAN 6 in 1988 (1988 Declaration). The earliest document dealing with children is the Resolution on the ASEAN Plan of Action for Children adopted in December 1993 (1993 Resolution). The issues of welfare and the well-being of women and children are part of the activities that ASEAN and its members have been carrying out under the social development scheme of the ASEAN Functional Cooperation Program. While the issues of women are dealt with by the ASEAN Committee on Women, the issues of children are included in the ASEAN Committee on Social Development. So far, there is no specific body in ASEAN to address the issues of children. The existing bureaucratic mechanisms in ASEAN are tasked to implement programs and policies formulated and decided by ASEAN members. That said, women and children constitute more than half of the ASEAN population. The 1988 Declaration recognizes the importance of active participation and integration of women in the region in sharing the future development and progress of ASEAN and the necessity of meeting the needs and aspiration of women in the ASEAN Member Countries, 10 and the 1993 Resolution on the ASEAN Plan of Action for Children emphasizes the importance of regional cooperation in improving the conditions of children in ASEAN and convinced of the urgency to respond more effectively to the needs of children in the region and to complement efforts being
Singapore, Brunei, Cambodia, Lao PDR, Malaysia, and Vietnam . By December 2008, the ASEAN Charter entered into force after 10 countries have ratified. 10 Declaration on the Advancement of Women in the ASEAN Region, Bangkok, Thailand, 5 July, 1988
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undertaken by individual member countries. 11 These documents demonstrate ASEANs serious attention to these two groups. Two other documents have re-affirmed ASEAN policies on women and children. The ASEAN Vision 2020 adopted in 1997 stated that We envision a socially cohesive and caring ASEAN where hunger, malnutrition, deprivation and poverty are no longer basic problems, where strong families as the basic units of society tend to their members particularly the children, youth, women and elderly. 12 The 1998 Hanoi Action Plan further included many aspects pertaining to women and children. 13 ASEAN commitment to the betterment of women and children was re-emphasized repeatedly in a number of ASEAN Joint Communiques and Declarations, including for instance the 1998 Joint Communique of the 31st ASEAN Ministerial Meeting, which stressed that considering that two-thirds of the ASEAN population consists of women and children, they recognized the importance of international conventions and declarations relating to the promotion of human rights, such as the Convention on the Rights of the Child and the UN Convention on the Elimination of all Forms of Discrimination Against Women. The Foreign Ministers took recognizance of the fact that steps are being taken to bring to fruition the creation of a community of caring societies, as enshrined in the ASEAN Vision 2020, which gives particular emphasis to children, women and elderly. 14 It was not until 2004, though, that a rather concrete step was made by ASEAN members to promote and protect the rights of women and children. The
11 12
Resolution on the ASEAN Plan of Action for Children, Manila, Philippines, 2 December 1993. ASEAN Vision 2020, Second Informal Summit, 14-16 December, 1997, Kuala Lumpur. 13 Hanoi Plan of Action, 1998: 4.4 Implement the ASEAN Plan of Action for Children which provides for the framework for ensuring the survival, protection and development of children. 4.5 Strengthen ASEAN collaboration in combating the trafficking in, and crimes of violence against, women and children. 4.6 Enhance the capacity of the family and community to care for the elderly and the disabled. 4.7 Strengthen the ASEAN Regional Aids Information and Reference Network. 4.8 Enhance exchange of information in the field of human rights among ASEAN Countries in order to promote and protect all human rights and fundamental freedoms of all peoples in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action. 4.9 Work towards the full implementation of the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination against Women and other international instruments concerning women and children. 14 Joint Communique of the 31st ASEAN Ministerial Meeting, 23-24 July, 1998, Manila, Philippines.
- 10 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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inclusion of a clause on the establishment of an ASEAN Commission on the promotion and protection of the rights of women and children in the 2004 Vientiane Action Programme (VAP) laid down the most solid foundation for the setting up of a human rights monitoring body in ASEAN, although specifically limited to the rights of women and children. As previously noted, the Working Group for an ASEAN Human Rights Mechanism has been advocating and engaging with ASEAN since 1996. It has been holding regular meetings with ASEAN senior officials, ASEAN Foreign Ministers, and Heads of States, with the focused objective of the establishment of an ASEAN Human Rights Mechanism. The Working Group has been recognized by ASEAN as a dialogue partner and the meeting between the ASEAN Senior Officials Meeting (SOM) and the Working Group has been included in the ASEAN agenda since 1998. There is no doubt that the human rights content in the VAP is to a large extent the result of continuing efforts made by both ASEAN and the Working Group. During the 2005 meeting of the Working Group with the ASEAN Senior Officials in Vientiane, Lao PDR, ASEAN engaged/tasked the Working Group to assist in the implementation of the following program areas in the VAP: (1) the establishment of a commission on the promotion and protection of the rights of women and children; (2) the elaboration of an ASEAN instrument on the promotion and protection of the rights of migrant workers; (3) the promotion of education and public awareness on human rights in the region; and (4) networking among existing national human rights institutions in the region.
Each human rights component specified in the VAP requires a different type of implementation. To lay down the foundation for the prospective creation of an intergovernmental ASEAN Commission on the promotion and protection of rights of women and children, the Working Group requested the Office of Human Rights Studies and Social Development, Faculty of Graduate Studies, Mahidol University, Thailand, to conduct a study to gather preliminary information necessary for the further implementation of the VAP.
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This study inquires into the current state of the promotion and protection of the rights of women and children in ASEAN members, with particular attention to existing laws, policies and mechanisms. Existing measures to promote and protect womens and childrens rights were reviewed and analyzed. The research, however, did not intend to assess the human rights situation of women and children. Neither did it examine the states compliance to CEDAW and CRC. Moreover, human rights mechanisms and specialized regional human rights machineries which exist in other regions were studied in order to learn from their experiences. Data and information gathered were used to develop recommendations for the establishment of an ASEAN commission on the promotion and protection of the rights of women and children.
The study team has given great importance to a consultative and participatory process. One study meeting was held in Bangkok in August 2006 and two regional consultative meetings were organized in Bangkok in November 2006 and April 2007. In order to raise awareness, the study group invited officials from concerned government agencies, representatives from the national human rights and specialized human rights institutions, NGOs working on the issues of rights of women and children, as well as academics to participate in the meetings (List of participants is appeared in ANNEX I and ANNEX II). Through regional and national meetings and consultations, those stakeholders were engaged and requested to contribute to the research project. Documentary research has been completed in order to supplement the views and information gathered from the consultations. This research is based mainly on the country reports submitted by the ASEAN state parties to the UN Committee on CEDAW and UN Committee on CRC as well as other relevant official documents. The study team focuses on laws, policies, and mechanisms dealing with four areas namely: 1) violence against women; 2) discrimination against women and children; 3) trafficking in women and children; and 4) the four principles of child rights, namely child protection, child survival/development, child participation and the best interest of the child. The basis of the choice of focusing on four areas came from the fact that ASEAN as a region has already adopted a number of resolutions and declarations relating to these issues namely: Declaration of the advancement of women in the ASEAN region (1988); Declaration on the elimination of violence against women (2004); - 12 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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Declaration against trafficking in persons particularly women and children (2004); Resolution on the ASEAN Plan of Action on Children (1993); Declaration on the Commitments for Children in ASEAN (2001);
In addition there are a number of declarations and agenda relating to Youth and Youth development.
This report is divided into five parts, including ASEAN and human rights and the background of the study, an overview of the legal framework, the policies and mechanisms in ASEAN region relating to human rights of women, a survey of existing laws, policies and mechanisms relating to the rights of the child, learning experiences from regional human rights mechanisms in other regions, with particular emphasis on specialized mechanisms on the protection of the rights of women and children, and practical recommendations based on findings/data analysis and suggestions made during the consultation process.
CHAPTER II ASEANs Commitment to the Promotion and Protection of the Rights of Women
This chapter discusses the compliance of ASEAN countries with international womens human rights standards. It focuses on legislative measures launched by ASEAN states to combat three specific problems affecting womens human rights, namely discrimination against women, trafficking in persons, and violence against women. The chapter is based on documentary research. Apart from the texts of the CEDAW and General Recommendations of the CEDAW Committee, other documents that are principal sources of information for this research included the latest country reports submitted to the CEDAW Committee and the latest CEDAW Committees concluding observations. 1 By considering the states compliance with the standards of womens human rights as set by the CEDAW, this chapter aims at responding to the question of whether ASEAN is ready for a specialized regional body on womens human rights (and child rights).
International developments in the three areas of womens human rights
Legislative measures to combat discrimination against women, trafficking in persons, and violence against women or domestic violence are among recent developments in the international concern for womens human rights. The CEDAW Convention, as a landmark document featuring a widely accepted international standard of womens human rights, is formulated around the principle of non-discrimination and equality. The preamble of the convention establishes that discrimination is antithetical to human freedom, dignity and rights, and is therefore inadmissible. The convention, by way of its emphasis on discrimination, establishes that discrimination against women is an underlying cause of the curtailment of their other rights. Eradication of gender
1 This paper is based mainly on the states communication with the CEDAW Committee, in the forms of country reports and the Committees concluding comments. Since Brunei Darussalam has only become a state party to the CEDAW Convention since May 2006 and has not submitted its initial report to the Committee at the time of this writing, this paper necessarily excludes discussion about Brunei Darussalam due to the lack of relevant information.
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discrimination thus lies at the heart of the attempts to promote gender equality and womens human rights.
Despite prevalent acceptance of the CEDAW Convention and its principle of nondiscrimination, as evidenced by the high number of state parties to the Convention, 2 violations of womens human rights have persisted to the point that certain areas of violations have captured the attention of the international community. Violence
against women and trafficking in persons, particularly women and children, are two such areas of concern. As a result, the first half of the 1990s was packed with efforts in dealing with the problem of violence against women at the international level. In 1989, the CEDAW Committee adopted General Recommendation No. 12 calling for state parties to include information about the situation of violence against women and legislative and other measures to combat the problem in their periodic reports to the Committee. Three years later, the Committee adopted the lengthy General
Recommendation No. l9, which again discusses the problem of violence against women. 3 Recognizing the magnitude and insidious impact of gender-based violence on womens ability to enjoy their basic human rights, General Recommendation No. 19 establishes that violence against women is a form of discrimination against women which state parties should aim to eradicate. The Recommendation was followed by the Vienna Conference on Human Rights in 1993, where violence against women was declared a form of human rights violation. In 1994, the United Nations issued a Declaration on the Elimination of Violence against Women, which highlights obligations of the states and the UN in dealing with the problem. The first UN Special Rapporteur on Violence against Women was also appointed in the same year. Since then, violence against women has been fixed on the international human rights agenda.
Human trafficking has also drawn great attention within the UN system in the past decade. While trafficking in persons has been identified as a form of transnational crime, trafficking in women and girls is also defined as a form of violence against women. In 2000, the Protocol to Prevent, Suppress and Punish Trafficking in
2 As of February 2008, there are 185 state parties to the CEDAW Convention. 3 Violence against women was not mentioned as a specific problem in the text of the CEDAW Convention when it was adopted by the UN in 1979.
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Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime was adopted. Major human rights treaty bodies also address trafficking in their concluding comments/observations on country reports. In addition, the United States government monitors the situation in other countries closely in its annual US Department of State Trafficking in Persons Report.
ASEANs involvement in womens issues
ASEANs involvement in issues related to women is dated back to 1975, when the ASEAN Women Leaders Conference was held. In the following year, the ASEAN Sub-Committee on Women (ASW) was established, and was renamed the ASEAN Womens Programme (AWP) in 1981. In 2002, this sectoral body was restructured into the ASEAN Committee on Women (ACW), which continues to function as a central body responsible for issues related to women in the ASEAN region. 4
Initially, the interest and involvement of ASEAN in womens issues began with an emphasis on womens participation in development. Women, along with the youth, were mainly regarded as potential agents and beneficiaries of the development process, which would bring prosperity to the region. 5 In the mid-1980s, ASEAN started to address womens issues from the perspective of the advancement of women or the improvement of womens status in all fields, including politics. the international level. 6 This
development was achieved amid increasing interest in the advancement of women at The Declaration of the Advancement of Women in the
ASEAN Region was issued in 1988. Still, this 1988 Declaration aims at advancing the role and contribution of women in the progress of the region. It places an emphasis on womens role as a productive force and their participation in the development process. The human rights approach was simply not a common
language in ASEAN at that time. It was not until 1993 that ASEAN, in the Joint
4 ASEAN Secretariat, ASEAN Cooperation on Women: An Overview, http://www.aseansec.org/21012.htm, accessed on 21/03/08. 5 See Para. 17 of the Joint Communiqu of the 8th ASEAN Ministerial Meeting, Kuala Lumpur, 13-15 May 1975; Para. C.2 of the Declaration of ASEAN Concord, Bali, 24 February 1976; and Para. 18 of the Joint Communiqu of the 9th ASEAN Ministerial Meeting, Manila, 24-26 June 1976. 6 See Joint Communiqu of the 19th ASEAN Ministerial Meeting, Manila, 23-28 June 1986.
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Communiqu of the 26th ASEAN Ministerial Meeting, started to recognize the significance of human rights. 7 In the meantime, the ASEAN Committee on Women continues to work on the promotion of womens advancement, and more recently on the mainstreaming of gender perspective and concern in government policies, plans, programmes and budgets. 8
ASEAN leaders started to collectively address issues related to womens human rights more explicitly in the Hanoi Plan of Action, adopted in 1998. This six-year plan was enshrined with ASEANs commitment to work towards the full implementation of the CEDAW Convention, and to combat trafficking in, and violence against, women and children. 9 In 2004, ASEAN launched two Declarations which address two serious problems facing women, namely the Declaration on the Elimination of Violence Against Women in the ASEAN Region, and the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children. 10 ASEANs concern about womens human rights is also highlighted in the Vientiane Action Programme (20042010). Violence against women and trafficking in women and children are among the issues of concern raised in this document. Most importantly, the Vientiane Action Programme set as one of its programme areas the establishment of an ASEAN commission on the promotion and protection of the rights of women and children. 11
In regards to the CEDAW Convention, the first two ASEAN countries to ratify the Convention back in 1981 were Lao PDR and the Philippines. At present, already all ASEAN countries are parties to the CEDAW Convention, with Brunei being the last country to ratify this international instrument in 2006. Six ASEAN countries still have reservations on the Convention. Three of these countries, namely Indonesia, Myanmar and Vietnam, have only one reservation on Article 29(1), concerning the
7 Joint Communiqu of the 26th ASEAN Ministerial Meeting, Singapore, 23-24 July 1993. 8 ASEAN Secretariat, Joint Statement of the ASEAN High-Level Meeting on Good Practices in CEDAW Reporting and Follow-up, Vientiane, 14-15 January 2008, http://www.aseansec.org/21309.htm, accessed on 21/03/08 9 ASEAN Secretariat, Hanoi Plan of Action, http://www.aseansec.org/8754.htm, accessed on 21/03/08. 10 ASEAN Secretariat, Declaration on the Elimination of Violence Against Women in the ASEAN Region and ASEAN Declaration Against Trafficking in Persons Particularly Women and Children, http://www.aseansec.org/8754.htm, accessed on 21/03/08. 11 ASEAN Secretariat, Vientiane Action Programme, http://www.aseansec.org/16474.htm, accessed on 21/03/08.
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settling of inter-state disputes in the International Court of Justice. The other three, namely Malaysia, Singapore and Thailand, still maintain reservations on a number of substantive articles of the Convention (see the Table 3 below). In this regards, a Joint Statement of the ASEAN High-Level Meeting on Good Practices in CEDAW Reporting and Follow-up, issued by delegates of all ASEAN countries in January 2008, encourages those ASEAN countries which still maintain the reservations to the CEDAW to consider removing them. 12 As for the CEDAW Optional Protocol, two ASEAN countries, namely the Philippines and Thailand, have ratified the document so far, while Cambodia and Indonesia have signed but have not yet ratified it.
Table 3: Status of ASEAN member countries ratification of the CEDAW Convention, reservations, and its Optional Protocol. (as of March 2008).
Country Year of Ratification CEDAW Convention Reservations to CEDAW Articles* Year of Ratification Optional Protocol
Brunei Cambodia Indonesia Laos Malaysia Myanmar Philippines Singapore Thailand Vietnam
2006 1992 1984 1981 1995 1997 1981 1995 1985 1982
29(1) 5(a), 7(b), 9(2), 11, 16(1 a, c, f, g) and 16(2) 29(1) 2, 11(1), 16, 29(1) 16, 29(1) 29(1)
2001 (sign.) 2000 (sign.) 2003 2000 -
Sources: Compilation based on the Office of the UN High Commissioner for Human Rights, Committee on the Elimination of Discrimination Against Women, http://www2.ohchr.org/english/bodies/cedaw/index.htm, accessed on 28/02/08. *Note: Core contents of the articles with reservations: 12 ASEAN Secretariat, Joint Statement of the ASEAN High-Level Meeting on Good Practices in CEDAW Reporting and Follow-up, Vientiane, 14-15 January 2008, http://www.aseansec.org/21309.htm, accessed on 21/03/08.
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Article 5(a) Social and cultural patterns which result in gender discrimination Article 7(b) Womens participation in policy making, implementation and in holding public offices Article 9(2) Womens equal right to nationality of their children Article 11 Right to work and equality in employment Article 16 Equality in marriage and the family Article 29(1) Settlement of inter-state disputes in the International Court of Justice
In terms of reporting, state parties are obliged to periodically submit reports to the CEDAW Committee discussing legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the CEDAW Convention. Article 18 of the Convention requires that state parties submit their initial report one year after the Convention comes into force for the particular state parties, or after the state parties ratification or accession of the Convention. Subsequent periodic reports of the same nature are due at least every four years and further whenever the CEDAW Committee so requests. As seen in Table 4 below, ASEAN member countries vary in their capacity to keep to the due date for report submission. Although the degree of comprehensiveness of ASEAN countries reports submitted to the CEDAW Committee also varies, the reports most commonly discuss state parties achievements in relation to womens advancement and measures initiated to protect and promote womens human rights in their respective country.
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Table 4: Status of ASEAN member countries reports to the CEDAW Committee (as of May 2008)
Country Year of CEDAW Ratification Year of submission of initial report Latest report submitted (year)
Brunei Cambodia Indonesia Lao PDR Malaysia Myanmar Philippines Singapore Thailand Vietnam
2006 1992 1984 1981 1995 1997 1981 1995 1985 1982
2004 1986 2003 2004 1999 1982 1999 1987 1983
Initial, 2nd and 3rd combined (2004) 4th and 5th combined (2005) Initial, 2nd, 3rd, 4th and 5th combined (2003) Initial and 2nd combined (2004) 2nd and 3rd combined (2007) 5th and 6th combined (2004) 3rd (2004) 4th and 5th combined (2004) 5th and 6th combined (2005)
Sources: Compiled from Office of the UN High Commissioner for Human Rights, Committee on the Elimination of Discrimination Against Women, http://www2.ohchr.org/english/bodies/cedaw/index.htm, accessed on 28/05/08.
National machinery on women
General Recommendation No. 6 adopted by the CEDAW Committee in 1988 encourages states to establish and/or strengthen national machinery, institutions and procedures to monitor the situation of women, advise on the impact of government policies on women, and help formulate policies and implement strategies and measures to eliminate discrimination against women. This Recommendation has been well received among ASEAN countries, where the governments have set up national machinery to serve the purpose.
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The national machinery which exists for womens advancement in ASEAN countries has different structures and degrees of authority. Currently, out of the ten ASEAN countries, three have managed to establish a womens ministry to specifically oversee issues related to women. These include the Ministry of Women and Veterans Affairs in Cambodia, the Ministry of Women Empowerment in Indonesia, and the Ministry of Women and Family Development in Malaysia. Apart from these ministerial-level agencies, these countries have also set up other national bodies to assist with womens issues. In Cambodia, the government set up the Cambodia National Council for Women as a national coordinating and advisory body for the government, in addition to the Ministry of Women and Veterans Affairs. Both agencies are responsible for monitoring and following up on the implementation of the CEDAW. 13 In Indonesia, in 1998, the government also set up the National Commission on Violence against Women as an independent commission and the first national mechanism to address violence against women in the country. 14 In Malaysia, the work of the Ministry of Women and Family Development has been supplemented by that of a Cabinet Committee on Gender Equality and gender focal points in various ministries. 15
In other countries where a ministerial body does not exist, different forms of national machinery have been set up to be responsible for womens issues. The most common of these forms is a national commission or committee. This includes the National Commission for the Advancement of Women of Lao PDR, the National Commission on the Role of Filipino Women, and the National Committee for the Advancement of Women in Vietnam. In Myanmar, a committee called the Myanmar National
Committee for Womens Affairs was established in 1996 by the government to serve as national machinery for the development of women. In 2003, the Myanmar government also set up the Myanmar Womens Affairs Federation with the aim of development and protection of women.
13 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004. 14 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 15 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006.
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In Lao PDR, prior to the setting up of the National Commission for the Advancement of Women, issues related to women were dealt with by the Lao Womens Union, a mass organization established in 1955. In Indonesia and Thailand, different kinds of change took place in relation to national machinery for the advancement of women. Starting in 2001, the Indonesian Ministry of Women Empowerment has been given an additional mandate to oversee issues related to the welfare and protection of children. Due to the concern that this additional responsibility might weaken the attention given to issues related to womens human rights, the Ministry was therefore restructured with the position of Deputy Minister for Children added. 16 In Thailand, a reform of the bureaucratic system in 2002 resulted in the National Commission on Womens Affairs under the Office of the Prime Minister being transformed into an Office of Womens Affairs and Family Development under the newly founded Ministry of Social Development and Human Security. A concern was raised among womens organizations in the country and by the CEDAW Committee that this change, which sees womens issues now combined with family development matters, might undermine the authority and efficiency of the national machinery on women. 17
In countries where the national machinery for womens affairs has been quite established, there has been concern expressed regarding the authority and effectiveness of these agencies. The CEDAW Committee, while commending state parties for the establishment of these women-specific agencies, often raises concern about inadequate authority and insufficient human and financial resources of these national bodies. In the case of Lao PDR, the CEDAW Committee commented on the inadequate institutional structure and financial resources available to the secretariat of the National Commission for the Advancement of Women, and on the states heavy reliance on the Lao Womens Union, which is a mass organization without executive power, in dealing with womens issues. 18 Similar comments by the CEDAW
Committee on insufficient institutional visibility, decision-making power, and human and financial resources, also apply to national machinery in other countries including
16 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 17 Concluding comments of the CEDAW Committee: Thailand (CEDAW/C/THA/CO/5), 34th session, 2006. 18 Concluding comments of the CEDAW Committee: Laos PDR (CEDAW/C/Lao/CC/1-5), 32nd session, 2005.
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Indonesia, Philippines and Singapore. 19 The CEDAW Committee either called for the strengthening of national machinery for womens issues, or simply asked for an evaluation of the effectiveness of the machinery, as in the case of Cambodia. 20
Legislative measures related to womens human rights in ASEAN countries
To fulfill their commitment to eliminate gender discrimination, states may choose to deploy different legislative strategies at the same time. These strategies include revisions and amendments of existing lawssuch as family and marriage law, inheritance law, citizenship laws, land law, and labour lawwhich are discriminatory against women; and the enactment of new laws addressing specific problems facing women, such as sexual violence, domestic violence, and trafficking. In the latter case, these new laws on specific problems are often comprehensive in their content and coverage, offering not only criminalizing power and punitive actions. They often task the state with responsibilities for assistance and support services for the victims of these specific crimes, as in the forms of temporary protection measures, medical services, counseling, redress, reintegration, and other social welfare services. These legislative endeavors may be complemented by policy and other administrative measures. The following part of this chapter discusses the current situation pertaining to legislative measures deployed by different states to combat discrimination against women, trafficking in women and girls, and violence against women.
Discrimination against women
The text of CEDAW is founded on the principle of non-discrimination and equality between women and men. It represents efforts to combat gender discrimination as a form of human rights violation. Article 1 of the CEDAW Convention defines the term discrimination against women and links it to the recognition, enjoyment and
19 Concluding comments of the CEDAW Committee: Indonesia (CEDAW/C/IDN/CO/5), 39th session, 2007. Concluding comments of the CEDAW Committee: Philippines (CEDAW/C/PHI/CO/6), 36th session, 2006. Concluding comments of the CEDAW Committee: Singapore (CEDAW/C/SGP/CO/3), 39th session, 2007. 20 Concluding comments of the CEDAW Committee: Cambodia (CEDAW/C/KHM/CO/3), 34th session, 2006.
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exercise of womens human rights and fundamental freedoms in different spheres of life. This is followed by Article 2 which lays down the states obligations to eliminate discrimination against women, committed either by the state itself, by public authorities, or any person or organization.
One of the measurements of states compliance with the CEDAW, often raised by the CEDAW Committee in its concluding comments on country reports, is whether a clear definition of the term discrimination against women in line with Article 1 of the CEDAW Convention appears in the constitution or other legislation of state parties. For most countries in ASEAN, such a definition is still absent from the national constitution and legislation. This results in the CEDAW Committee, in recent years, repeatedly calling for state parties to establish such a legal definition. Another legislative measure often suggested by the CEDAW Committee is for state parties to enact a new anti-discrimination or gender equality law, which will provide an encompassing legal framework for women-related issues.
Although no definition of discrimination against women is explicitly enshrined in the legislations of ASEAN states, some ASEAN states can lay claim to a legal guarantee of equality between women and men through an installation of an anti-discrimination or gender equality clause in their constitutions. In Cambodia, Article 31.1 of the Cambodian Constitution states that the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter,, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, womens rights and childrens rights. Also, Article 45.1 of the same Constitution states that all forms of discrimination against women shall be abolished. 21 The stipulation made in Article 31.1 of the Constitution can be interpreted that Cambodia accepts the definition of discrimination against women as it appears in the CEDAW Convention. 22 Also, Cambodia has initiated a reform of the Criminal Code to include
21 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004. 22 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004.
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punishment for offences of gender discrimination in relation to, among others, the rights to property, provision of services, and employment. 23
In Indonesia, an amendment was made to the Constitution in 2000 so that the law now constitutes discrimination as a violation of human rights. Article 28 I(2) of the Indonesian Constitution stipulates that everyone is entitled to be free from discriminatory treatment on any basis and is entitled to be protected from discriminatory treatment. 24 By definition, this general legal protection also entails discrimination against women. In addition, Article 1(3) of Indonesias 1999 Law on Human Rights acknowledges equal rights between men and women in law and civic life. Article 1.3 of the same law defines discrimination based on various grounds including sex. Meanwhile, Section 9 of the Human Rights Law is dedicated to womens rights. It constitutes womens rights as human rights and provides details of specific rights of women. 25
In Lao PDR, there are no laws that specifically define discrimination against women. However, the Lao Constitution amended in 2003 stipulates in its Article 22 that Lao citizens, irrespective of their sex, social status, education, faith and ethnic group are all equal before the law, and Article 24 guarantees that Lao citizens of both sexes enjoy equal rights in political, economic, cultural, social and family affairs. 26 In 2004, a comprehensive Law on the Development and Protection of Women was promulgated which enhances the rights of women and the responsibilities of the state, society and family vis--vis women. 27 The aim of this law is not only to eliminate discrimination against women but also to combat specific problems facing women,
23 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004, and Concluding comments of the CEDAW Committee: Cambodia (CEDAW/C/KHM/CO/3), 34th session, 2006. 24 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 25 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 26 Combined initial, second, third and fourth and fifth reports of Lao PDR, submitted to the CEDAW Committee (CEDAW/C/LAO/1-5), 2003. 27 Concluding comments of the CEDAW Committee: Laos PDR (CEDAW/C/Lao/CC/1-5), 32nd session, 2005.
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including violence and trafficking, and to create enabling environment for womens participation and empowerment. 28
In Malaysia, the term discrimination against women has not been specifically defined in domestic laws. In 2001, an amendment was made to Article 8(2) of the Federal Constitution so that the word gender was added to the constitutional clause which prohibits discrimination on various grounds. 29 However, there is no explicit mention of the principle of equality between women and men in the Malaysian Constitution. 30
In Myanmar, the state partys periodic report to the CEDAW Committee in 2007 states that this equality [between women and men] has been prescribed in the various provisions of the State Constitution 1947, the State Constitution 1974 and in the detailed basic principles for a new Constitution laid down by the National Convention held on 27 October 2006. 31 The report goes on to say that the principle of equality between women and men is embodied in various provisions of existing domestic laws, and that Myanmar women enjoy equality with men, hence, a legal definition of discrimination against women is unnecessary in the various legislative acts of Myanmar. 32
As one of the first countries in ASEAN to become a state party to the CEDAW Convention, the Philippines shows considerable progress in the legal guarantee of womens rights. The 1987 Constitution of Philippines, in Article II Section 14, recognizes the role of women in nation-building and ensures the fundamental equality before the law of women and men. 33 Meanwhile, other constitutional
provisions guarantees working women the right to safe and healthy working
28 Concluding comments of the CEDAW Committee: Laos PDR (CEDAW/C/Lao/CC/1-5), 32nd session, 2005. 29 Combined initial and second periodic report of Malaysia, submitted to the CEDAW Committee (CEDAW/C/MYS/1-2), 2004. 30 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006. 31 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007. 32 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007. 33 Combined fifth and sixth periodic report of Philippines, submitted to the CEDAW Committee (CEDAW/C/PHI/5-6), 2004.
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conditions (Article XII Section 14), upholds the right of women to representation in legislative bodies (Article VI Section 5(2), and grants equal citizenship rights to women (Article IV). 34 Although a legal definition of discrimination in line with Article 1 of the CEDAW Convention has not been put into the Philippine laws, the state has enacted a number of laws in recent years to combat specific problems facing women, particularly in the areas of violence and trafficking. The Philippines is also in the process of passing the Magna Carta for Women Act which will provide for an encompassing legal framework for equality of women. 35
In Singapore, although Article 12 of the countrys Constitution prescribes the principle of equality of all persons before the law, there is no explicit guarantee of equality on the basis of sex. While a Womens Charter exists, which has been in force since the 1960s, no definition of discrimination against women exists in the states legislation. 36 In spite of the absence of a broad legal framework for gender equality, one of Singapores latest legislative efforts to eradicate discrimination against women appears in the 2004 amendment of the Constitution, which allows Singaporean women to pass on Singaporean citizenship to their overseas-born children on the same basis as men. 37 This change is related to the states withdrawal of its reservation to Article 9 of the CEDAW Convention pertaining to nationality.
In Thailand, Article 30 of the states latest Constitution, promulgated in 2007, affirms the principle of gender equality by stating that men and women have equal rights. The same constitutional article also prohibits discrimination on various grounds including sex, and affirms that the states use of affirmative actions for disadvantaged groups does not constitute unfair discrimination. Thailand has enacted new laws on specific issues facing women, such as the 2007 Protection of Victims of Violence in the Family Act and the 2008 Human Trafficking Prevention and Suppression Act. The government is in the process of drafting a law on gender
34 Combined fifth and sixth periodic report of Philippines, submitted to the CEDAW Committee (CEDAW/C/PHI/5-6), 2004. 35 Concluding comments of the CEDAW Committee: Philippines (CEDAW/C/PHI/CO/6), 36th session, 2006. 36 Concluding comments of the CEDAW Committee: Singapore (CEDAW/C/SGP/CO/3), 39th session, 2007. 37 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004.
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equality which will provide an encompassing legal framework for equality not only on the basis of the male or female gender but also sexual orientation. In its latest periodic report submitted to the CEDAW Committee in 2004, the Thai government promised to enshrine the definition of discrimination against women in line with Article 1 of the CEDAW Convention in this equality law being drafted. 38
In Vietnam, the state has shown its commitment to eradicate discrimination against women and promote gender equality by means of revisions of existing laws related to various aspects of life, including laws on elections, prostitution, population, labour law, land law, and marriage and family law, among others. The most prominent of Vietnams legislative efforts to combat gender discrimination in the past few years is the promulgation of the Law on Gender Equality which entered into force in July 2007. 39
Trafficking in women and girls
Article 6 of the CEDAW Convention states that state parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of the prostitution of women. The rise of international concern over trafficking in women and children is reiterated in the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime. At a sub-regional level, trafficking in persons is the focus of the Coordinated Mekong Ministerial Initiative Against Trafficking (COMMIT), established in 2004 by an memorandum of understanding (MOU) signed by six member states, namely China, Cambodia, Lao PDR, Myanmar, Thailand and Vietnam. Also in 2004, the ASEAN government issued the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children. The following is a discussion of legislative
38 Combined fourth and fifth periodic report of Thailand, submitted to the CEDAW Committee (CEDAW/C/THA/4-5), 2004. 39 Combined fifth and sixth periodic report of Vietnam, submitted to the CEDAW Committee (CEDAW/C/VNM/5-6), 2005, and Concluding comments of the CEDAW Committee: Vietnam (CEDAW/C/VNM/CO/6), 37th session, 2007.
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measures to combat trafficking in women and children/girls carried out by ASEAN countries.
Concerned about the high incidence of trafficking in persons both internally and across borders, Cambodia issued the Law on Suppression of Kidnapping, Trafficking, Sale and Exploitation of Human Person in 1996. This law, however, did not see a decrease in cases of trafficking, particularly for prostitution purpose. 40 The
government of Cambodia has taken other, sometimes controversial, legal measures such as those which seek to control entertainment businesses where prostitution commonly takes place. Other laws also exist, which are directly or indirectly related to the problem of human trafficking, such as the Law on Contracts and Other Liabilities, the Labour Law, the Law on Marriage and Family, the Law on Immigration, and the Penal Code. 41 However, there was a strong call for the
Cambodian Government to pass and enact a comprehensive anti-trafficking legislation that prescribes prosecution and punishment of traffickers and assistance and support services to trafficked persons, 42 and towards the end of 2007, the Cambodian National Assembly unanimously passed such a comprehensive antitrafficking law. The Cambodian government also created the National Taskforce on Human Trafficking to oversee different aspects of anti-trafficking activities, including policy and cooperation; prevention; criminal justice; and protection, rehabilitation and reintegration. 43 Cambodia has also entered into anti-trafficking MOUs with
neighboring countries, such as Thailand and Vietnam, and is one of the six country members of the COMMIT Process.
Like Cambodia, Indonesia also faces both internal and transnational trafficking of its citizens. In efforts to combat the problem, the Indonesian government, in 2002, issued Presidential Decrees on a National Plan of Action on the Elimination of
40 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004. 41 Combined initial, second and third periodic report of Cambodia, submitted to the CEDAW Committee (CEDAW/C/KHM/1-3), 2004. 42 The Human Trafficking.org Project, Academy for Educational Development, Recent Updates, http://www.humantrafficking.org/countries/cambodia, accessed on 20/03/08. 43 The Human Trafficking.org Project, Academy for Educational Development, Cambodia, http://www.humantrafficking.org/uploads/publications/Coordination_Structure_-_Diagram1.pdf, accessed on 20/03/08.
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Commercial Sexual Exploitation of Children and a National Plan of Action on the Elimination of Trafficking in Women and Children. The Ministry of Womens
Empowerment also came up with a 2003-2007 Master Plan on the Elimination of Trafficking in Women and Children. 44 The latest development of anti-trafficking legislative measures of Indonesia is the enactment of the comprehensive Law on AntiTrafficking in 2007. 45 This law penalizes debt bondage, labour exploitation, sexual exploitation, and transnational and internal trafficking. Trafficking of children is also penalized under the Child Protection Act. 46
In Lao PDR, trafficking in persons is penalized under Article 69 and 92 of the Criminal Law of 1992. The country has also entered into a number of bilateral and regional agreements and projects to combat human trafficking in the region. These include, for instance, the 2002 MOU between Lao PDR and Thailand on Labour Cooperation, and the 2005 MOU between Lao PDR and Thailand on Cooperation to Combat Trafficking in Persons, Especially Women and Children. Lao PDR is also a member of the COMMIT Process. Although not a specific anti-trafficking law, in 2004 the Lao National Assembly passed the Law on Development and Protection of Women. This comprehensive law covers various aspects of women-related affairs. 47 Regarding the crime of trafficking, this law not only penalizes traffickers but also recognizes the rights of trafficked persons and prohibits punishment of and provides for protection of the latter. 48
The situation of human trafficking in Malaysia differs from those of other ASEAN countries discussed above in that Malaysia is mainly a destination country for women trafficked from various countries in and outside Southeast Asia. 49 The Malaysian government admitted in its 2004 country report to the CEDAW Committee that
44 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 45 Concluding comments of the CEDAW Committee: Indonesia (CEDAW/C/IDN/CO/5), 39th session, 2007. 46 The Human Trafficking.org Project, Academy for Educational Development, Indonesia, http://www.humantrafficking.org/countries/indonesia, accessed on 20/03/08. 47 Concluding comments of the CEDAW Committee: Laos PDR (CEDAW/C/Lao/CC/1-5), 32nd session, 2005. 48 The Human Trafficking.org Project, Academy for Educational Development, Lao PDR, http://www.humantrafficking.org/government_law/69, accessed on 20/03/08. 49 The Human Trafficking.org Project, Academy for Educational Development, Malaysia, http://www.humantrafficking.org/countries/malaysia, accessed on 20/03/08.
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trafficking in persons is not specifically criminalized in Malaysia. 50
The
government, however, states that there are laws in the country aimed at and used to combat trafficking in persons, including women. 51 These laws include Article 6(1) and (2) of the Federal Constitution which prohibits slavery and forced labour, and the Penal Code which prohibits selling and buying of persons. Other laws cited as relevant, such as the Immigration Act, the Anti-Money Laundering Act, the Restricted Residence Act, mostly aim at the control of illegal immigration and prostitution rather than protection of trafficked persons. 52 In 2006, the CEDAW Committee commented on the Malaysian government, saying that it has not enacted legislation on trafficking and has not established a comprehensive plan to prevent and eliminate trafficking in women and to protect victims.
53
The Committee also urged that Malaysia consider
ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime, to step up efforts to combat all forms of trafficking in women and girls, and to enact a specific and comprehensive law on human trafficking. 54 In May 2007, the Malaysian House of Representatives
eventually passed the Anti-Trafficking in Persons Act, which criminalizes and punishes traffickers and provides for assistance, including temporary shelters, to victims of trafficking.
Myanmar has mainly been a source country of human trafficking. Trafficking occurs both internally and across borders. In 2002, the Myanmar government formed the Preventive Working Committee against Trafficking which operates at the national and local levels. In 2004, Myanmar became a party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to
50 Combined initial and second periodic report of Malaysia, submitted to the CEDAW Committee (CEDAW/C/MYS/1-2), 2004. 51 Combined initial and second periodic report of Malaysia, submitted to the CEDAW Committee (CEDAW/C/MYS/1-2), 2004. 52 Combined initial and second periodic report of Malaysia, submitted to the CEDAW Committee (CEDAW/C/MYS/1-2), 2004. 53 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006. 54 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006.
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the United Nations Convention against Transnational Organized Crime. 55 In recent years, the Myanmar government has taken steps to arrest and prosecute perpetrators of human trafficking. 56 The government has also entered into bilateral and regional cooperation initiatives, including MOUs with Australia and Thailand to combat trafficking in Asia and to assist Burmese undocumented migrants working in Thailand. 57 It has entered into cooperation with other governments of the Greater Mekong Sub-region through the COMMIT Process and other bilateral MOUs. 58 In 2004, Myanmar began drafting a comprehensive law on anti-trafficking with the assistance of international experts. The Anti-Trafficking in Persons Law was
promulgated in 2005. This law seeks to prevent and suppress trafficking in persons, enable effective and speedy investigation and prosecution of trafficking cases, and provide for protection of and support to trafficked persons. The law also prescribes the formation of a number of working groups to deal with different aspects of the problem, including the working groups on preventive measures; developing legal frameworks and prosecution; and repatriation, reintegration and rehabilitation of trafficked persons. 59
The Philippines is mainly a source country for human trafficking. It is a state party to a number of relevant international instruments addressing trafficking and migration, most importantly the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In 2003, the
Philippine President signed the Anti-Trafficking in Persons Act. The Inter-Agency Council against Trafficking was subsequently formed. This anti-trafficking law
provides a comprehensive legal framework to deal with different aspects of

55 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007. 56 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007; and The Human Trafficking.org Project, Academy for Educational Development, Burma, http://www.humantrafficking.org/countries/burma, accessed on 20/03/08. 57 The Human Trafficking.org Project, Academy for Educational Development, Burma, http://www.humantrafficking.org/countries/burma, accessed on 20/03/08. 58 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007. 59 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007.
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trafficking. Apart from criminalizing and penalizing acts of trafficking and acts to promote trafficking, the law also redefines prostitution in a way that the criminal liability lies not with women who are prostitutes, but those who promote prostitution in the context of trafficking. It also provides for preventive activities, rehabilitation and reintegration of trafficked persons, mandatory support services to trafficked persons, and tasks various government agencies with specific mandates and responsibilities. The National Strategic Action Plan to Address Trafficking in Persons was also completed as a consequence of this law. 60 In spite of the law, the CEDAW Committee in its comments issued in 2006, still expressed concern over the low rates of prosecution and conviction of traffickers and those who exploit the prostitution of women under this law. 61
Singapore is another destination country for labour migration and also human trafficking in ASEAN. Singapores latest periodic report submitted to the CEDAW Committee in 2004 did not explicitly mention the problem of trafficking in persons except, to a limited extent, in the context of prostitution. The country does not have a specific law on anti-trafficking. The Penal Code is used to criminalize the selling and buying of the minors and to penalize those who assist in bringing any women into Singapore for the purpose of prostitution. The Womens Charter also contains similar provisions on the trafficking of women for prostitution and other related offences. 62 Other laws that are used to deal with labour trafficking include the Employment Agency Rules and the Employment of Foreign Workers Act. 63 Singapore stated that the country has put in place legislation and devoted law enforcement resources to confront the problem of trafficking in persons and that the state has succeeded in keeping trafficking in persons at a minimal level. 64 Singapores success tends to be accounted for in the countrys tough stance against illegal immigrants, whether they
60 Combined fifth and sixth periodic report of Philippines, submitted to the CEDAW Committee (CEDAW/C/PHI/5-6), 2004. 61 Concluding comments of the CEDAW Committee: Philippines (CEDAW/C/PHI/CO/6), 36th session, 2006. 62 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. 63 The Human Trafficking.org Project, Academy for Educational Development, Singapore, http://www.humantrafficking.org/countries/singapore, accessed on 20/03/08. 64 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004.
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were trafficked or had entered Singapore of their own volition. 65 Singapore also states that the country has the stringent law against immigration offenders and those who traffic, harbour or employ them. 66 These statements have led the CEDAW Committee to raise concern that the definition of trafficking employed by Singapore is too narrow and women and girls who have been trafficked may be punished for violation of immigration laws and be treated as offenders rather than victims. 67 As a receiving country of foreign domestic workers, Singapore tends to invest more in improving the working conditions of this particular sector of migrant workers whose contributions are crucial to the well-being of the Singaporean households and society. An example of these efforts is the production of guidelines to help Singaporean employers sustain employment relationship with their foreign domestic workers. 68 Other protection initiatives include funding for shelters and local NGOs that work with foreign domestic workers, and the provision of counseling, health care, physical security and skills development programs for abused foreign domestic workers and victims of sexual exploitation. The Singaporean Ministry of Manpower also runs hotline services for foreign domestic workers. 69
Thailand is at once a source, transit and destination country for human trafficking. The 1996 Prevention and Suppression of Prostitution Act penalizes prostitutes as well as procurers, facilitators and clients of prostitution. In 1997, a law on trafficking in women and children was promulgated, entitled the Measures for Prevention and Suppression of Trafficking in Women and Children Act, which was meant as an improvement of a similar law which came into force twenty-five years earlier. This law, however, mainly criminalized trafficking for the purpose of sexual exploitation. It did not criminalize labour trafficking, and male victims were not protected under this law. Several years after the promulgation of the law, the Thai government
65 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. 66 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. 67 Concluding comments of the CEDAW Committee: Singapore (CEDAW/C/SGP/CO/3), 39th session, 2007. 68 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. 69 The Human Trafficking.org Project, Academy for Educational Development, Singapore, http://www.humantrafficking.org/countries/singapore, accessed on 20/03/08.
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admitted that its enforcement had been rather weak. 70 Due to these limitations, efforts were made to draft a new anti-trafficking law which would criminalize all forms of trafficking and would protect victims of all sexes. As a consequence, the Human Trafficking Prevention and Suppression Act was promulgated in February 2008 and came into force in June the same year. Apart from penalizing traffickers and their accomplices, this new anti-trafficking law also obligates the government to provide trafficked persons with material, medical, and other welfare support, and allows trafficked persons from outside the country to stay and work temporarily in Thailand while the legal process to prosecute traffickers is taking place. At the regional level, Thailand, as a receiving country of trafficked persons and migrants workers from neighboring countries, is a member of the COMMIT Process and has also signed antitrafficking and migrant-related MOUs with Cambodia, Lao PDR and Myanmar. 71
In recent years, Vietnam has initiated a number of legal and policy measures to combat trafficking, particularly in the context of prostitution and other forms of sexual exploitation. These include the 2001-2005 Plan of Action for the Prevention and Suppression of Prostitution, and the 2002 Decree on Marriage and Family Relationships with Foreign Elements. The 2003 Ordinance on Prevention and
Suppression of Prostitution, in particular, criminalizes sex trafficking. It is the first ever specific document which strictly prohibits prostitution. 72 Meanwhile, Articles 119, 120 and 275 of the Vietnamese Penal Code criminalize labour trafficking. 73 The CEDAW Committee, while welcoming Vietnams introduction of several new measures, was particular concerned about the reported deprivation of citizenship rights of women who return to Vietnam after having been trafficked abroad as well as the same right of their children born outside the country. The Committee was also concerned that the rehabilitation measures for victims, as imposed by the state, may stigmatize girls and young women who engaged in prostitution. The Committee also urged Vietnam to consider ratifying the Protocol to Prevent, Suppress and Punish
70 Combined fourth and fifth periodic report of Thailand, submitted to the CEDAW Committee (CEDAW/C/THA/4-5), 2004. 71 The Human Trafficking.org Project, Academy for Educational Development, Thailand, http://www.humantrafficking.org/countries/thailand, accessed on 20/03/08. 72 Combined fifth and sixth periodic report of Vietnam, submitted to the CEDAW Committee (CEDAW/C/VNM/5-6), 2005. 73 The Human Trafficking.org Project, Academy for Educational Development, Vietnam, http://www.humantrafficking.org/countries/Vietnam, accessed on 20/03/08.
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Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime. 74 In terms of regional cooperation to combat trafficking, Vietnam is partner to many regional projects. As of 2006, the Vietnamese Government had also signed an anti-trafficking MOU with China and Cambodia in order to improve cooperation in identifying victims and prosecuting traffickers. 75
Violence against women
In 1989, following the concern about violence against women that has been raised within the UN system, 76 the CEDAW Committee issued General Recommendation No. 12 requesting state parties to include in their periodic reports information on violence against women and measures to combat the problem. This was followed by General Recommendation No. 19, issued in 1992, which constitutes gender-based violence as a form of discrimination against women, allowing the problem to be included in the mandate of the CEDAW Committee. General Recommendation No. 19 also relates gender-based violence with different articles of the CEDAW Convention and provides specific recommendations on legal and other measures to deal with the problem. Within ASEAN, the Declaration on the Elimination of
Violence Against Women in the ASEAN Region was adopted in 2004.
In 2005, Cambodia promulgated the Law on the Prevention of Domestic Violence and Protection of Victims. While the CEDAW Committee welcomed this law, it also raised a number of concerns regarding the persistence of violence against women in the country. This includes the concern that the law may have limited application in cases of spousal abuse and does not protect former spouses against abuse. The Committee also pointed to other possible limitations in the application of this law, including womens limited access to the judicial system, inadequate legal aid for
74 Concluding comments of the CEDAW Committee: Vietnam (CEDAW/C/VNM/CO/6), 37th session, 2007. 75 The Human Trafficking.org Project, Academy for Educational Development, Vietnam, http://www.humantrafficking.org/countries/Vietnam, accessed on 20/03/08. 76 See ECOSOC resolution 1984/10 on violence in the family, General Assembly resolution 40/36 (1985) on domestic violence, report of the Secretary-General on efforts to eradicate violence against women within the family and society (E.CN.6/1988/6), and ECOSOC resolution 1988/27.
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women, high financial expenses required for the prosecution of certain cases, biases in interpretation of laws by judges, the prevalence of permissive attitudes towards gender-based violence and impunity of perpetrators, and womens fear of stigmatization when seeking remedies. 77 The Committee pointed to the significance of implementation of a comprehensive approach to the problem of gender-based violence, and urged the government to take preventive measures as in raising public awareness about the unacceptability of gender-based violence, including domestic violence, and provision of training for the judiciary and public authorities on this new law to sensitize them to all forms of violence against women. Various obstacles to womens access to the justice system should also be eradicated, while support services, such as temporary shelters and counseling, must be established for victims of domestic violence. 78
In Indonesia, the National Commission on Violence Against Women was established in 1998 as an independent body, working in cooperation with womens organizations to deal with the problem of gender-based violence. The Ministry of Women
Empowerment adopted the Zero-Tolerance Policy on Violence Against Women and cooperated with other government and civil society stakeholders to develop the National Action Plan on the Elimination of Violence Against Women in 2000. The Action Plan encompasses several measures such as the harmonization of national laws with international instruments, in particular CEDAW General Recommendation No. 19, the establishment of crisis centers and hotline services for victims of domestic violence, the enhancement of the quality of services at police precincts, the mapping of incidences of violence against women in the country, the raising of funds for victims of violence in certain conflict areas, and the launching of public campaigns to stop violence. 79 In 2004, Indonesia promulgated the Law on Elimination of Violence in Household, whose protection also covers domestic workers. 80
77 Concluding comments of the CEDAW Committee: Cambodia (CEDAW/C/KHM/CO/3), 34nd session, 2006. 78 Concluding comments of the CEDAW Committee: Cambodia (CEDAW/C/KHM/CO/3), 34nd session, 2006. 79 Combined fourth and fifth periodic report of Indonesia, submitted to the CEDAW Committee (CEDAW/C/IDN/4-5), 2005. 80 Indonesias National Commission on Violence Against Women, http://www.komnasperempuan.or.id/, accessed 01/04/08.
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In Lao PDR, the topics of domestic violence emerged as a national concern quite recently. In terms of research, the issue was addressed nationally for the first time in a sampled survey conducted in 1998. The Criminal Law of 1992 does not specifically address domestic violence but allows exemption from penal liabilities in cases of physical violence between close relatives without serious injuries or physical damages, whereas rape has always been considered a serious crime under the Criminal Law. 81 The issue of violence against women is addressed, along with other womens issues, in the recently promulgated comprehensive Law on the Development and Protection of Women of 2004. 82
Malaysia has been a leading country in introducing a domestic violence law. After years of public campaigns by womens organizations, the country promulgated its Domestic Violence Act in 1994 in order to provide protection for victims of violence while the criminal proceedings are underway. This law protects both female and male spouses, children and any family members who suffer from violence in their homes. 83 The existence of the law, however, does not guarantee smooth implementation and perfect protection of victims, and some members of womens organizations have expressed the need to monitor the law closely. 84 The CEDAW Committee also The commented on the governments reluctance to criminalize marital rape. 85
Malaysian government has mentioned an initiative to amend the Domestic Violence Act to broaden the definition of domestic violence and to improve measures to protect victims. 86
81 Combined initial, second, third and fourth and fifth reports of Lao PDR, submitted to the CEDAW Committee (CEDAW/C/LAO/1-5), 2003. 82 Concluding comments of the CEDAW Committee: Laos PDR (CEDAW/C/Lao/CC/1-5), 32nd session, 2005. 83 Combined initial and second periodic report of Malaysia, submitted to the CEDAW Committee (CEDAW/C/MYS/1-2), 2004; and Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006. 84 UNIFEM, Shining a Bright Light: Monitoring Domestic Violence Law in Malaysia, http://www.unifem.org/gender_issues/voices_from_the_field/story.php?StoryID=329, accessed on 1/04/08. 85 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006. 86 Concluding comments of the CEDAW Committee: Malaysia (CEDAW/C/MYS/CO/2), 35th session, 2006.
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According to Myanmars country report, the Myanmar Womens Affairs Federation, formed in 2003 and comprising 30 government officials from different ministries, is responsible for the issue of violence against women. Counseling centers have been established for victims of violence against women and trafficking in persons. A national plan on women and development and the elimination of violence against women has been adopted and being implemented. 87 However, there is no mention of legislative efforts, especially the drafting of law that will deal specifically with the issue of violence against women.
The 2004 Anti-Violence against Women and Their Children Act of The Philippines is an example of laws on domestic violence which were introduced in several countries in the past decade to be in line with the CEDAW General Recommendation No. 19 on violence against women. This Act is one of a cluster of comprehensive laws issued in the Philippines to specifically protect and assist women against gender-based violence. Other laws include the Anti-Rape Act of 1997, which redefines and
expands the definition of rape from being a crime against chastity to a crime against the person, and implicitly recognizes marital rape; the Rape Victim Assistance and Protection Act of 1998, which establishes support services for rape survivors and tasks government to train public authorities responsible for management of rape cases to sensitize them to human rights and gender issues; and the Anti-Trafficking in Persons Act of 2003 mentioned above. The Anti-Violence against Women and Their Children Act protects women and their children from physical, psychological and economic abuses in the context of marital, dating or common law relationships. The law also recognizes the battered women syndrome as a legal defense for women. These legislative endeavors are complemented by other legislative and policy measures, for example, the Family Court Act of 1997, which establishes family courts in major cities in different parts of the country to protect the right of women and children; a judicial reform programme; the creation of the Committee for a GenderResponsive Judiciary; and provision of hotline services, among others. 88
87 Combined second and third periodic report of Myanmar, submitted to the CEDAW Committee (CEDAW/C/MMR/3), 2007. 88 Combined fifth and sixth periodic report of Philippines, submitted to the CEDAW Committee (CEDAW/C/PHI/5-6), 2004.
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In Singapore, administrative rather than legislative measures have been used to deal with violence against women and domestic violence. Inter-agency platforms such as the Family Violence Dialogue Group, headed jointly by the Ministry of Community Development, Youth and Sports and the Police Force, have been set up to coordinate protection and support for victims of violence. Other measures have included the introduction of guidelines for police in managing cases of domestic violence, the production of a Manual on Integrated Management of Family Violence, which outlines procedures and responsibilities of all agencies involved, and public education to raise awareness about family violence. As for legal measures, the Womens
Charter enables the court to issue Personal Protection Orders for victims and to order perpetrators, victims and/or family members of the victims to attend a compulsory counseling, rehabilitation or recovery programme.
89
However, the CEDAW
Committee is of the view that Singapore could do more, for instance, in providing better protection and support for foreign wives of Singaporean citizens who encounter domestic violence, and in criminalizing marital rape. 90
In Thailand, the government has admitted in its country report to the CEDAW Committee in 2004 that the situation of violence against women has worsened. 91 This is despite the fact that Article 52 of the 2007 Thai Constitution specifies that children, youth, women and family members shall have the right to be protected by the state from violence and unfair treatment and shall also have the right to receive rehabilitation in the event of such circumstances. Article 40 (6) of the said
Constitution also specifies that children, youth, women, elderly people and disabled or infirm people shall have the right to be accorded protection with regard to appropriate trials and have the right to receive proper treatment in cases related to sexual violence. To tackle the problem, Thailand promulgated the Protection of Victims of Domestic Violence Act in November 2007. Also in 2007, Article 276 of the Penal Code was amended so that the legal protection against rape is now extended to victims of all sexes and marital status. This means that rape committed against
89 Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. 90 Concluding comments of the CEDAW Committee: Singapore (CEDAW/C/SGP/CO/3), 39th session, 2007. 91 Combined fourth and fifth periodic report of Thailand, submitted to the CEDAW Committee (CEDAW/C/THA/4-5), 2004.
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people of a sexual minority and marital rape will be punished. As in other countries, these legislative endeavors are supported by other measures such as the establishment of one-stop service centers in selected hospitals, a 24-hour hotline center staffed by social workers and psychologists, and the establishment of the Center for the Protection of Children, Youth and Women in the Police Department in 1998. These government initiatives have been supplemented by the work of several nongovernment organizations working on womens issues. 92
In Vietnam, little information is given in its country report regarding the situation of violence against women or measures taken to tackle the problem. The CEDAW Committees concluding comments note that the country is in the process of drafting a new law on domestic violence. 93
Conclusion
Overall, ASEAN countries have demonstrated efforts to comply with the international standards of womens human rights. This may be less the case in the enactment of legislation to specifically eradicate discrimination against women as enshrined in the CEDAW Convention. Most countries in ASEAN have not enshrined a clear legal definition of discrimination against women in their domestic laws. Few countries have laws which aim specifically at eradicating gender discrimination and promoting gender equality, and Vietnam, with its 2006 Gender Equality Law, is one of these few countries. In several countries, however, the principle of non-discrimination and gender equality is enshrined in constitutional provisions or other relevant laws, e.g. the Human Rights Law of Indonesia, and the reformed Penal Code of Cambodia which penalizes offences of discrimination against women. It is expected that antidiscrimination law or law to promote gender equality will soon be enacted in other countries.
92 Combined fourth and fifth periodic report of Thailand, submitted to the CEDAW Committee (CEDAW/C/THA/4-5), 2004. 93 Concluding comments of the CEDAW Committee: Vietnam (CEDAW/C/VNM/CO/6), 37th session, 2007.
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Regarding other specific problems facing women, such as human trafficking and violence against women, several ASEAN governments have developed new and comprehensive legislation to deal with these issues. As regards the problem of human trafficking, a fair number of ASEAN countries have responded to the mounting international pressure and passed anti-trafficking legislation in recent years. These countries include Cambodia, Indonesia, Malaysia, Myanmar, The Philippines, and Thailand, with Lao PDR having a comprehensive Law on Development and Protection of Women which includes punishment for trafficking in women. The responses of individual countries to come up with measures against human trafficking has been confirmed at the regional level by the collective adoption of the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children in 2004, and the signing of the COMMIT MOU by the six Greater Mekong Sub-region countries.
Similar developments have taken place in regard to the problem of violence against women. Generally speaking, ASEAN governments have responded positively to the international call to combat this problem. The pervasiveness of violence against women, particularly domestic violence, has put several governments on alert, and one of the crucial responses to this problem has been to enact laws that deal specifically with domestic violence. Countries that have passed such a law include Cambodia, Indonesia, Malaysia, the Philippines, and Thailand, while in Lao PDR, the problem is dealt with in the encompassing Law on Development and Protection of Women. In Singapore and Vietnam, the problem is dealt with by policy and administrative rather than legislative measures. ASEAN has also collectively adopted the Declaration on the Elimination of Violence Against Women in the ASEAN Region in 2004.
Undoubtedly, there is still a gap in the extent of human rights protection afforded to women in different countries of ASEAN. Traditional ideas and practices which hinder the realization of gender equality and womens human rights still run strong in certain areas or communities within the region. This and other factors, including economic disparity, social inequality and the lack of political stability in some countries, means that the existence of laws may not immediately translate into womens actual enjoyment of human rights. Nevertheless, these efforts to comply - 42 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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with the international standards of womens human rights can be interpreted as ASEAN being ready to step up its responsibilities and accountability for the human rights and well-being of women. One way to collectively achieve this objective is for ASEAN to establish its own regional mechanism to promote and protect womens human rights. Such a regional mechanism, with its clear focus on womens human rights, will add to the efforts of individual governments and the ASEAN Committee on Women, to promote the role and well-being of women. In recent years, ASEAN has demonstrated greater willingness to embrace the human rights value, and the establishment of a regional mechanism on womens human rights will strengthen this value and its manifestation in the region.
CHAPTER III Legal and Political Commitment to Human Rights of Children in ASEAN and ASEAN countries.
Chapter II demonstrates the commitment (and lack of commitment) of ASEAN and ASEAN countries to promote and protect the human rights of women by looking at legislative measures as well as mechanisms made available in ASEAN and its member countries. This chapter will examine laws, policies and bodies that already exist in ASEAN, at the national level in particular. The chapter will first deal with ASEAN and the CRC. It will then attempt to examine the legislative and policy documents and national machineries for the promotion and protection of the rights of the child.
Commitment to the Rights of the Child of ASEAN
Although children and youth have been mentioned in various official policy documents of ASEAN and have been included as part of Functional Cooperation programmes, the focus has largely been on youth development and youth employment. The declarations issued by ASEAN clearly show the emphasis ASEAN places on youth. Since 1983 there have been a number of declarations pertaining to youth. The Declaration of Principles Strengthening ASEAN Collaboration on Youth (1983) is considered the first document in ASEAN to place a focus on youth. Since then, ASEAN has adopted other documents 1 (and issued a number of press releases each year) recognizing the importance of youth development and youth participation in the development of ASEAN. Most seem to give weight to the economic aspect of development. On the ASEAN website there is an entry on Youth and Children, but the information provided is mainly about youth. In the latest 12th ASEAN Summits Cebu Declaration, entitled Towards One Caring and Sharing Community, ASEAN leaders agreed to prepare ASEAN youth for regional leadership and to increase the
Kuala Lumpur Agenda on ASEAN Youth Development (1997), ASEAN Vision 2020, Declaration on Preparing ASEAN Youth for the Challenges of Globalization (2000), and Declaration on Strengthening Participation in Sustainable Youth Employment (2003).
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competitiveness of the peoples of Southeast Asia through education. 2 ASEAN cooperation on youth is overseen at the Ministerial level by an ASEAN Ministerial Meeting on Youth which meets once every two years. The implementation of the programmes and activities for youth matters is carried out by the ASEAN Senior Official on Youth (SOMY). 3 The programmes on youth were incorporated into the VAP which states that The VAP urges increased participation of youth in the productive workforce, and encourages their entrepreneurship and employability, leadership and regional awareness. Priorities for youth cooperation are highlighted in the VAPs section on the ASCC, under the strategic thrusts for Building a Community of Caring Societies, Managing the Social Impact of Economic Integration and Promoting an ASEAN Identity 4 . Many activities on youth have been regularly conducted under the ASEAN framework.
Another interesting observation is how ASEAN classifies the ASEAN population. The statistics compiled by the ASEAN secretariat do not correspond with the definition of a child. The distribution of population is classified into three age groups: persons below 15; persons between 15-64 years old; and persons above 65 years old. Children who are 15 years old and above are put in the same category as adults. According to the ASEAN Statistical Pocketbook 2006, in 2004 about 30.5 % of the total population of ASEAN were under 15 years 5 . The total population in ASEAN in 2006 amounted to 567.014 million persons. 6 These tables are consistent with other tables on the unemployment rate of the population who are 15 years and older. 7 Art.1 of the CRC defines a child as every human being below the age of eighteen years unless under the law applicable to the child majority is attainable earlier.
ASEAN Youth Cooperation Overview, in ASEAN website www.aseansec.org, visited on August 1st, 2007. See also Joint Ministerial Statement of the 5th ASEAN Ministerial Meeting on Youth (AMMY V), Singapore, 26 April, 2007, Youth : Creating Our Future Together. 3 Ibid. 4 Ibid. 5 See Table 2: Sex Ratio and Population by Major Age Group 2004, in ASEAN Statistical Pocketbook 2006. 6 See Table 3: Number of mid-year Population National estimates (000) 2006, in ASEAN Statistical Pocketbook 2006. 7 See Tables 11 and 12: Unemployment Rate of Population 15 years and Older, in ASEAN Statistical Pocketbook 2006.
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Although youth matters are given prime priority in ASEAN as compared to children issues, the commitment of ASEAN to the development and welfare of children is not negligible. The Resolution on The ASEAN Plan of Action For Children adopted in Manila, Philippines, on 2 December 1993 is the first document in ASEAN dealing directly with childrens issues. Through its resolution, six ASEAN members adopted an ASEAN Plan of Action for Children with the objective of providing ...a framework for promoting regional cooperation for the survival, protection and development of the ASEAN Child. The Plan shall be an integral part of the member countries' efforts in improving the lives of the peoples of the region. 8 The Plan followed closely the 1990 World Declaration on the Survival, Protection and Development of Children and Plan of Action for Child Survival, Protection and Development by prescribing three areas of concern - child survival, child protection, and child development. Although the details of the Plan substantially reflect the content of CRC, the term rights of the child is not used in any part of the document.
For the effective implementation of the Plan, the Resolution designated a Childrens Desk Officer both at ASEAN and at national levels to coordinate regional programmes on children with relevant bodies and committees of ASEAN involved in childrens issues. The Senior Officer position was to assist in coordinating the implementation of the programmes for children in the absence of an institutionalized sub-committee on children. 9 ASEAN put a time frame to achieve the objectives of the ASEAN Plan of Action for Children by the year 2000. 10
Apart from the Hanoi Plan of Action already mentioned in Chapter 1 and the ASEAN Declaration Against Trafficking in Persons, particularly Women and Children, adopted in Vientiane in 2004, another important document which reflects the commitment of ASEAN to children is the Declaration on the Commitments for Children in ASEAN adopted by ten ASEAN in Singapore in August 2001. This time the document was guided by the CRC, the outcomes of the World Summit on Children, the World Summit for Social Development and other international
Resolution On The ASEAN Plan Of Action For Children, Manila, Philippines, 2 December 1993, in ASEAN website www.aseansec.org, visited on August 1st, 2007. 9 Ibid. 10 Ibid.
8
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instruments concerning children. 11 This document is seen as a human rights-based document as it fully incorporates the very essence and spirit of CRC and relevant documents relating to rights of the child. The very first four points are remarkable in that declare to: (1) Promote regional cooperation for the survival, development, protection and participation of ASEAN children, as an integral part of ASEANs efforts to improve the lives of peoples in the region. (2) Intensify ASEAN economic and social development cooperation so as to eradicate the scourges of poverty, hunger and homelessness, which have a farreaching impact on children, in order to promote their welfare and well-being. (3) Protect, respect and recognise the rights of all children, including those of indigenous people, consistent with the customs and traditions of their respective communities. (4) Recognise and encourage respect for childrens rights through mutual sharing of information on the rights of the child by ASEAN members, taking into account the different religious, cultural and social values of different countries 12 .
In fact, the 18 points of agreement prescribed in the Declaration on the Commitments for Children in ASEAN 2001 follow precisely the provisions enshrined in the CRC. While the implementation of the Declaration is hard to trace, by looking at the list of projects one may see the initiatives (and/or efforts) made by ASEAN. In 2002 a number of projects pertaining to children were identified and formulated at the ASEAN level. These included projects on Juvenile justice, ASEAN computer-based information networks for families and child development, the development of a homepage on ASEAN children, hosting a symposium on children in especially difficult circumstances, studies on child abuse and neglect, a feasibility study and workshop on the establishment of ASEAN Regional Center for Family and Child Development, and projects on early child care and development. However, the implementation of the commitments made at the ASEAN level were seen more at the national level.
Declaration on the Commitments for Children in ASEAN, Singapore, 2 August 2001, in ASEAN website www.aseansec.org, visited on August 1st, 2007. 12 Ibid.
11
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It should be noted that while there is an ASEAN Committee on Youth and ASEAN Committee on Women, the ASEAN Sub-Committee on Children mentioned in the Resolution on The ASEAN Plan of Action for Children of 1993 has yet to be established. In fact, the issues relating to children have been part of the works of the ASEAN Committee on Social Development. In 2006 the ASEAN Strategic Framework and Plan of Action for Social Welfare, Family and Children (2007 2010) was adopted by the Fourth ASEAN Senior Officials Meeting on Social Welfare and Development. In the Joint Communiqu of the Sixth ASEAN Ministerial Meeting for Social Welfare and Development made public in Hanoi on 6 December 2007 children (along with the elderly and women) are considered socially vulnerable groups. 13 For ASEAN they require the provision of social welfare and social development activities with sustained impact both nationally and regionally as stated in the Joint Statement
14
. A rights-based perspective has not been, in any instance,
articulated in the document. The establishment of an ASEAN Commission on the promotion and protection of the rights of women and children specified in the VAP could be a step towards programmes and projects based on a rights-based approach in ASEAN.
ASEAN Members and the Convention on the Rights of the Child
As pointed out previously, all ASEAN members are parties to the UN Convention on the Rights of the Child (CRC). The CRC was adopted by the UN General Assembly on November 20, 1989 and entered into force on 2 September 1990. As of March 2008, 193 countries, all except the United States and Somalia, are parties to the Convention. It is considered the most universally accepted human rights instrument adopted by the United Nations to date. The CRC has laid down the foundation for state parties to protect and promote the rights of children. The four principle pillars enshrined in the CRC: (1) non-discrimination; (2) the best interest of the child; (3) child survival and child development; and (4) child participation, form a very important basic framework for states (and non-state actors) for their actions. Although
Joint Communiqu of the Sixth ASEAN Ministerial Meeting for Social Welfare and Development Hanoi, 6 December 2007, point 6. 14 Joint Statement of the Second ASEAN Plus Three Ministerial Meeting for Social Welfare and Development, Hanoi, 7 December 2007.
13
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all ASEAN members have committed themselves to abide by the CRC, six countries have made declarations and/or reservations 15 to certain articles prescribed by the
15
Brunei Darusalam 16 ,17 : Reservation: "[The Government of Brunei Darussalam] expresses its reservations on the provisions of the said Convention which may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the State, religion, and without prejudice to the generality of the said reservations, in particular expresses its reservation on articles 14, 20 and 21 of the Convention."
Indonesia 20: Reservation: The 1945 Constitution of the Republic of Indonesia guarantees the fundamental rights of the child irrespective of their sex, ethnicity or race. The Constitution prescribes those rights to be implemented by national laws and regulations. The ratification of the Convention on the Rights of the Child by the Republic of Indonesia does not imply the acceptance of obligations going beyond the Constitutional limits nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution. With reference to the provisions of articles 1, 14, 16, 17, 21, 22 and 29 of this Convention, the Government of the Republic of Indonesia declares that it will apply these articles in conformity with its Constitution. Malaysia 27: Reservation: "The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to articles 1, 2, 7, 13, 14, 15, [...], 28, [paragraph 1 (a)] 37, [...] of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia." 23 March 1999 : Declaration: With respect to article 28 paragraph 1 (a), the Government of Malaysia wishes to declare that in Malaysia, even though primary education is not compulsory and available free to all, primary education is available to everybody and Malaysia has achieved a high rate of enrolment for primary education i.e. at the rate of 98&percnt; enrolment." Myanmar 13: Reservation to art. 29 Singapore 17, 34: Declarations: "(1) The Republic of Singapore considers that a child's rights as defined in the Convention, in particular the rights defined in article 12 to 17, shall in accordance with articles 3 and 5 be exercised with respect for the authority of parents, schools and other persons who are entrusted with the care of the child and in the best interests of the child and in accordance with the customs, values and religions of Singapore's multi-racial and multi-religious society regarding the place of the child within and outside the family. (2) The Republic of Singapore considers that articles 19 and 37 of the Convention do not prohibit (a) the application of any prevailing measures prescribed by law for maintaining law and order in the Republic of Singapore; (b) measures and restrictions which are prescribed by law and which are necessary in the interests of national security, public safety, public order, the protection of public health or the protection of the rights and freedoms of others; or (c) the judicious application of corporal punishment in the best interest of the child. Reservations: (3) The Constitution and the laws of the Republic of Singapore provide adequate protection and fundamental rights and liberties in the best interests of the child. The accession to the Convention by the Republic of Singapore does not imply the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution. (4) Singapore is geographically one of the smallest independent countries in the world and one of the most densely populated. The Republic of Singapore accordingly reserves the right to apply such legislation and conditions concerning the entry into, stay in and departure from the Republic of Singapore of those who do not or who no longer have the right under the laws of the Republic of Singapore, to enter and remain in the Republic of Singapore, and to the acquisition and possession of citizenship, as it may deem necessary from time to time and in accordance with the laws of the Republic of Singapore. (5) The employment legislation of the Republic of Singapore prohibits the employment of children below 12 years old and gives special protection to working children between the ages of 12 years and
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CRC. Until early 2008, in spite of the fact that reservations to some articles have been withdrawn, certain countries - Brunei Darussalam, Indonesia, and Malaysia in particular, still retain reservations to a number of articles. Singapore has made a blanket reservation which states that The Constitution and the laws of the Republic of Singapore provide adequate protection and fundamental rights and liberties in the best interests of the child. The accession to the Convention by the Republic of Singapore does not imply the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution.
Basically, the declarations and/or reservations are made in cases where the provisions stipulated in the CRC are considered to be non-compliant with the national constitution and domestic laws and Islamic laws/principles. It is interesting to
observe that: a) three countries in Indochina and the Philippines did not make any declarations nor reservations to the CRC upon ratification/accession; b) two countries, Indonesia and Malaysia, have made reservations to Art.1 of the CRC which provides the definition of the child. These two countries declared that this article would be applied only in conformity with the Constitution and national laws. In the case of Indonesia, the definition of the child in national legislation follows the standard set forth in the CRC, but several laws, e.g. the Employment Act 1995, the Marriage Act 1974, the Juvenile Court Act 1997, the Defense and Security Act 1982, and others, define the age of a child differently - ranging from seven years for criminal responsibility to 15 for employment, and 21 years for inheritance and for the conduct of property transactions. 16
below the age of 16 years. The Republic of Singapore reserves the right to apply article 32 subject to such employment legislation. (6) With respect to article 28.1(a), the Republic of Singapore(a) does not consider itself bound by the requirement to make primary education compulsory because such a measure is unnecessary in our social context where in practice virtually all children attend primary school; and (b) reserves the right to provide primary education free only to children who are citizens of Singapore." Thailand 13: Reservation: "The application of articles 7, 22 .... of the Convention on the Rights of the Child shall be subject to the national laws, regulations and prevailing practices in Thailand." 16 Second periodic reports of States parties : Indonesia, /CRC, CRC/C/C/65/Add.23, 7 July 2003.
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Table 5. Status of Ratifications of CRC/OP1 and OP2 (as of March 2008)

Country Ratification/Accession Reservations
Brunei Darussalam
CRC : 27/12/1995 OP1 : 21/11/2006 OP2 : Not signed/ratified CRC : 15/10/1992 OP1 : 30/05/2002 OP2 : 16/07/2004 CRC : 05/09/1990 OP1 : Signed/not ratified OP2 : Signed/not ratified CRC : 08/05/1991 OP1 : 20/09/2006 OP2 : 20/09/2006 CRC : 17/02/1995 OP1 : Not signed/ratified OP2 : Not signed/ratified CRC : 17/02/1995 OP1 : Not signed/ratified OP2 : Not signed/ratified CRC : 21/08/1990 OP1 : 28/05/2002 OP2 : 26/08/2003 CRC : 05/10/1995 OP1 : Not signed/ratified OP2 : Signed/ not ratified CRC : 27/03/1992 OP1 : 11/01/2006 OP2 : 27/02/2006 CRC : 08/02/1990 OP1: 20/12/2001 OP2 : 20/12/2001
Art. 14,20,21
Cambodia
Indonesia
Blanket reservations including Art.1,14,16,17,21,22,29 -
Lao PDR
Malaysia
Art.1,2,7,13,14,15,28,37
Myanmar
Philippines
Singapore
Declarations on Art.12-17,19 and 39 /Reservations to Art.7,9,10,12,22,28 and 32 Art.7,22
Thailand
Vietnam
Source: Compilation based on the status of ratifications of CRC, in the Office of the High Commissioner for Human Rights. www.ohchr.org visited on March 30, 2008.
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In Malaysia while various laws use a definition of a child consistent with Art.1 of the CRC, the definition is governed differently under the relevant legislation in accordance with their respective purposes. Examples include the Age of Majority Act 1971 [Act 21], where the age of majority is eighteen years. In the Young Persons (Employment) Act 1966 [Act 350], which governs the employment of a child and young persons, a child is defined as any person who has not completed his or her fourteenth year of age. Under the Law Reform (Marriage and Divorce) Act 1976 [Act 164], the minimum age for marriage is eighteen years. This marriage age complies with the Islamic Family Law Act (Federal Territory) 1984 (IFLA) which provides that the minimum age for marriage is eighteen years for males and sixteen years for females. Section 82 of the Penal Code [Act 374] stipulates the minimum age of criminal responsibility is ten years old. 17 The Malaysian government is considering a review of laws in order to make the definition of the child consistent with the CRC. The CRC itself, however, gives room for parties to the convention to define a child in ways they deem appropriate. Art.1 states that For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. No one can state that Indonesian and Malaysian laws do not comply with the CRC. However, the UN Committee on CRC strongly encourages all countries party to the CRC to review their domestic laws to recognize that a child is any person below eighteen years old.
Apart from the CRC, some countries in ASEAN have also ratified and/or acceded to the two optional protocols to the CRC - namely the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OP1-OP-CRC-AC) and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OP2-OP-CRC-SC).
As shown in Table 5, Cambodia, Philippines, Thailand and Vietnam have already ratified/acceded to the two Optional Protocols to the CRC. Brunei Darussalam has recently acceded to the OP-CRC-SC and Lao PDR has acceded to the OP-CRC-AC.
17
See detail in Initial reports of States parties: Malaysia, CRC, CRC/C/MYS/1, 22 December 2006.
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Indonesia has signed both documents but not yet ratified. Singapore has also signed the OP-CRC-AC but not yet ratified. It is interesting to point out that two countries ratifying or acceding to the OP-CRC-AC have made reservation to articles set forth in the Optional Protocol. Lao PDR and Vietnam have made reservations upon their accession and ratification to the OP-CRC-SC. Lao PDR made a reservation on Art.5 (2) and Vietnam to Articles 5(1), (2), (3), and (4) of this Protocol. Some have made declarations on voluntary recruitment, compulsory military service, the duty to defend homeland, or military training, where the attained age is 18 years old. By ratifying or acceding to the CRC, states accept their international obligations (unless they make reservations or interpretative declarations). Art. 2 of the CRC stipulates that: 1. State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status; and 2. State Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."
These generic obligations of state parties are complemented by other obligations in order to ensure the proper implementation of the CRC. Art.42 prescribes that State Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. The dissemination and public education on the rights of children is an integral part of international state obligation. Moreover, state parties are required by Art.44 to submit initial reports to the CRC Committee within two years of the entry into force of the CRC and make periodic reports every five years. The report, once completed, shall be made available to the public in each respective country.
It has been shown that the submission of state reports to the CRC Committee constitutes a serious challenge to countries in ASEAN. The Table 6 shows that most, - 53 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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if not all state parties (with very few exceptions) fail to submit their reports in due time. So far only Vietnam has submitted reports required for the two Optional Protocols, while Cambodia has exceeded the deadline for report submission. The Philippines submitted its first report for the Optional Protocol 1(OP CRC-AC) last year. The reasons for the delay of report submission are at least three-folds: one is the difficulty in collecting information for the report as there is no systematic information collection system in any country; another lies on the fact that the report is to be written in English which is rather problematic for many state parties; and the last one concerns the ability to write a report which must follow the format and guidelines provided by the CRC Committee.
Table 6: Status of the State Reports to the CRC Committee (as of March 2008)
Country Initial Report Date due 25/1/98 13/11/94 4/10/92 7/6/93 19/3/97 13/8/93 19/9/92 3/11/97 25/4/94 1/9/92 Initial Report Date of Submission 20/12/01 18/12/97 17/11/92 18/1/96 21/12/06 21/9/93 21/9/93 24/9/02 23/8/96 30/9/92 Periodic Report Date due 25/7/08 (2&3) 13/11/99 (2) 13/11/04 ( 3) 4/10/97 (2) 4/10/07 (3&4) 7/6/98 (2) 19/3/12 (2,3,&4) 13/8/98 (2) 13/8/08 (3&4) 19/9/97 (2) 19/9/07 (3&4) 3/11/07 (2&3) 25/4/99 (2) 25/4/09 (3&4) 1/9/97 (2) 1/9/07 (3&4) Periodic Report Date of submission
Brunei Darussalam Cambodia Indonesia Lao PDR. Malaysia Myanmar Philippines Singapore Thailand Vietnam
5/2/02
11/6/02 23/4/03
7/6/04 10/5/00
Source: Compilation based on the status of reporting in the Office of the High Commissioner for Human Rights. www.ohchr.org visited on March 30, 2008)
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An Assessment of National Laws, Policies, and Existing Mechanisms Dealing with the Rights of Children.
Differences in the political systems of governments of ASEAN members have impacts on the laws, policies and practices in the field of human rights at the national level. But, however diverse they may be, elements of human rights, democracy and the rule of law are reflected in their national constitutions. In general, the national constitution is made of basic concepts and aspirations of human rights. It is also in the national constitution that the protection and promotion of the rights of children has been laid down, though in many cases, not child-specific provisions.
This section will start with an overview of the efforts made by ASEAN countries to comply with its obligations under CRC. It will also provide a brief picture of laws, policies and mechanisms already in existence in ASEAN countries using the four principles enshrined in the CRC as a framework; this part will also offer some observations regarding legislative measures as well as some shortcomings when it comes to the issue of the rights of children.
An Overview
By studying the various state reports that individual governments in ASEAN have already submitted to the UN Committee on the Rights of the Child, one could conclude that ASEAN is rather well equipped with laws and policies on child protection/child development and child survival. Many countries such as The Philippines and Indonesia have strong legal frameworks on the protection of rights of children. Indonesia even has an independent mechanism monitoring the implementation of state obligations. At the same time though, there are also laws and policies which infringe on the ability of children to enjoy their rights.
The reports submitted to the Committee on the Rights of the Child by the state parties demonstrate that, to different extents, most if not all countries have been putting forward efforts to comply with the obligations stipulated in the CRC. As shown in the Annex III, upon ratification of the CRC, most countries have promulgated at least - 55 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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one child-specific legislation. Brunei Darussalam has issued a Childrens Order Act as well as a Women and Girls Child Act, while Indonesia has passed a Child Protection Act. Singapore has the oldest Children and Young Persons Act of the region, dating back to 1949, with the latest amendment in 2001. It is important to note that most of the child-specific laws that exist in ASEAN countries put emphasis mainly on child protection and child welfare, at least as reflected in the name of the laws. Only Lao PDR, which has just promulgated the Law on Protection of Childrens Rights and Interests in 2007, made their law a rights-based legislation. Cambodia is the only country in ASEAN without a child-specific law. However, Cambodia seems to be the only country in ASEAN where the national Constitution directly refers to the CRC. Art.48 of the Royal Cambodian Constitution stipulates that the State shall guarantee and protect the rights of children as set forth in the Convention on the Rights of the Child, in particular the right to life. 18 In addition to child-specific laws, countries such as Cambodia, The Philippines and Thailand are equipped with laws dealing with thematic issues such as child exploitation and child trafficking etc. Cambodia has a law prohibiting child labour and setting a minimum age for employment. In 1997 Thailand promulgated the Measures in the Prevention and Suppression of Trafficking in Women and Children Act, and now has the Anti-Trafficking in Persons Act (2008). However, Philippines has the most comprehensive laws relating to children, ranging from the Special Protection of Children Against Child Abuse, Exploitation and Discrimination, to an Act Prohibiting the Employment of Children Below 15 years of Age in Public and Private Undertakings, a Memorandum of Agreement on the Handling and Treatment of Children Involved in Armed Conflict, an Anti-Trafficking in Persons Act, an Anti-Violence against Women and Their Children Act, a RoomingIn and Breastfeeding Act, and the Barangay Level Total Development and Protection of Children Act, etc.
With the exception of Brunei and Singapore all other countries in ASEAN have formulated both broad-based policies and plans of action on child protection. The most elaborated long-term plans and strategies are found in the Philippine Plan of Action for Children and the Philippine National Strategic Framework for Plan on Children: (2000-2025) or CHILD 21. Some countries such as Cambodia, Indonesia,
18
Initial report of State parties due in 1994 :Cambodia.24/06/98. CRC/C/11/Add.16, para.33
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Malaysia, Philippines, Thailand, and Vietnam are equipped with strategies and plans dealing with thematic issues on children (and youth). In Cambodia, the National Plan Against Sexual Exploitation of Children was adopted. Policies and plans relating to the issues of commercial sexual exploitation as well as trafficking are also found in Indonesia, Lao PDR, Philippines, Thailand and Vietnam. While Brunei and Myanmar do not have national action plans on child protection, both countries have related policies. Brunei adopted a national education policy and Myanmar has both a national health plan and an education for all plan which, in principle, benefits not only children but the whole population.
To a certain extent, plans and policies reflect some specific problems of the children in a particular country. Although all countries face the problem of birth registration, Indonesia has the lowest level of child birth registration. Indonesia, therefore, adopted the Jakarta Declaration on Birth Registration and promised to solve the problem by 2015. In Vietnam, as a legacy of the war and problem of poverty, the country has adopted a number of programmes to deal with street children and children in difficult circumstances. These include the Programme of Protection of Children in Especially Difficult Circumstances 1999-2002, and the Prevention and Resolution of the problems of Street Children, Sex-abused Children and Children who are being overworked and working in poisonous and dangerous conditions, etc. Guidelines and plans to fight against child labour are also found in Indonesia, The Philippines, Thailand and Vietnam.
Singapore has not adopted any plan on children and Brunei Darussalam only has a national education policy. Yet the government of Brunei Darussalam recognizes that what is needed is a holistic approach in dealing with issues on children and affirms that their social security system and safety nets are constantly evolving to keep them in line with the CRC.
19
Singapore, although lacking a national plan and
policies specifically on children, has included policies and programmes in the strategies and plans of ministries concerned. The concluding observations (on Singapores report) made by the Committee on the Rights of the Child notes with
19
Initial Reports of States Parties due in 1998, Brunei Darussalam, CRC/C/61/Add.5, 13 March 2003, para. 343 and 345.
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appreciation the high standard of living of children in the State party, and the considerable efforts to implement the economic, social and cultural rights of children, in particular through the wide availability of high-quality health and education services and housing. 20
Various national machineries have also been established in all countries, without exception. In general, apart from line ministries like education and public health, issues pertaining to children are taken care of by the ministries or departments dealing with social welfare. This is the case of Brunei (Social Affairs Unit under the Ministry of Culture, Youth and Sports, Cambodia (Ministry of Social Welfare), Indonesia (Department of Social Welfare), Myanmar (the Social Welfare Department at the Ministry of Social Welfare, Relief and Resettlement), Philippines (Department of Social Welfare and Development), Thailand (Office of Welfare Promotion, Protection and Empowerment of Vulnerable Groups (OPP) of the Ministry of Social
Development and Human Security), and Vietnam (Ministry of Labour, Invalids and Social Affairs). In Malaysia, programmes and policies on children are under the responsibility of the Ministry of Women, Family and Community Development.
According to state reports to the UN Committee on the Rights of the Child, in addition to the line ministries/departments concerned, each and every country in ASEAN has made available national machineries to promote and protect the rights of the child. Brunei has established a National Childrens Council and a Working Group on CRC Report/Monitoring to ensure the implementation of the CRC. The same kind of mechanism has been set up in Cambodia (Cambodian National Council for Children), Lao PDR (National Commission for Mother and Child), Malaysia (National Advisory and Consultative Council for Children), Myanmar (National
Committee on the Rights of the Child (NCRC)), Philippines (Council for the Welfare of Children (CWC) and the CRC National Monitoring System), Singapore (InterMinistry Committee on the Convention on the Rights of the Child), Thailand (National Committee for Child Protection and the National Council for Child and Youth Development), and Vietnam (National Committee on Population, Family and Children).
20
Concluding observations : Singapore, CRC/C/15/Add.220, 27 October, 2003, para. 3.
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Although these institutions are called Council or Commission or Committee, this does not necessarily reflect the independent nature of the entity. In most cases, the existing machineries are composed of representatives of different government agencies. 21 In Brunei, the members of the Council are made up of representatives of various agencies such as the Prime Ministers Office, the Ministry of Health, the Ministry of Education, the Ministry of Home Affairs, the Ministry of Religious affairs, the Ministry of Culture, Youth and Sports and NGOs. 22 In Lao PDR, the National Commission for Mothers and Children was set up under the chairmanship of the Deputy Prime Minister and its Vice-Chairmen are the Minister of Education and the Minister of Public Health and members are from various ministries and mass organizations such as the Lao Womens Union and the Lao peoples Revolutionary Youth Union. 23 In The Philippines, the Council for the Welfare of Children is composed of department heads including the representative of the National Economic and Development Authority, chaired by the Secretary of the Department of Social Welfare and Development.
24
In Vietnam, the Committee for the Protection and Care
of Children (CPCC) is a government agency chaired by a cabinet minister; the Chief Inspector of the CPCC was appointed by the Prime Minister. 25 Although these agencies are tasked to coordinate, monitor and ensure the implementation of the CRC, none except the CPCC of Vietnam with its inspection section is entrusted with an investigation mandate. Even in the case of Indonesia where a specialized agency like the National Commission for Child Protection, (and the National Commission on the Elimination of Child Labour as well as the National Commission on the elimination of Worst Forms of Child Labour) was established as an independent institution, it does not have a mandate to receive complaints or give remedies in cases of violations
See for example, Committee on the Rights of the Child, Consideration of Reports Submitted by State Parties Under the Article 44 of the Convention , Initial Reports of States Parties due in 1998, Brunei Darussalam, CRC/C/61/Add.5, 13 March 2003, para 24 ;Initial reports of States parties due in 1994, Cambodia, CRC/C/11/Add 16, 24 June 1998, para 12; the Initial reports of States parties due in 1993, Lao PDR., CRC/C/8/Add.32, 24 January 1996, para.31-32; the Initial reports of States parties due in 1997, Singapore, CRC/C/51/Add.8, 17 March 2003, para57; 22 Initial Reports of States Parties due in 1998, Brunei Darussalam, CRC/C/61/Add.5, 13 March 2003, para 24. 23 Initial reports of States parties due in 1993, Lao PDR., CRC/C/8/Add.32, 24 January 1996, para.3132 24 Second periodic reports of States parties due in 1997, Philippines, CRC/C/65/Add.31, 5 November 2004, para.35. 25 Periodic reports of States parties due in 1997, CRC/C/65/Add.20, 5 July 2002, para.29.
21
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of child rights. Moreover, the UN Committee on the Rights of the Child, while welcoming the establishment of such a Commission, has expressed concerns in its concluding observations that ,,,the insufficient guarantees of independence and impartiality of the National Commission on Human Rights (Komnas HAM), which hinder it from carrying out its mandate fully, might also impair the work of the National Commission for Child Protection. 26 The Committee further recommends the Indonesian government not only to ensure coordination among different existing Commissions but also to take immediate measures to strengthen the independence, objectivity, effectiveness and public accountability of the National Commission on Human Rights (Komnas HAM), the National Commission for Child Protection and the National Commission on the Elimination of the Worst Forms of Child Labour, and ensure that their reports to the Attorney-General are published in a timely fashion. 27 To other countries such as Brunei, Cambodia, Lao PDR, Myanmar, Singapore, and Vietnam, the UN Committee on the Rights of the Child, however, in its Concluding observations expresses its concern at the absence of an independent mechanism with a mandate regularly to monitor and evaluate progress in the implementation of the Convention and which is empowered to receive and address individual complaints, including from children, regarding all areas covered by the Convention.
28
The Committee thus recommends these States to establish an independent and
effective mechanism, in accordance with the Principles relating to the status of national institutions for the promotion and protection of human rights which is provided with adequate human and financial resources and easily accessible to children and which monitors the implementation of the Convention, deals with complaints from children in a child-sensitive and expeditious manner, and provides remedies for violations of their rights under the Convention.
29
In most, if not all
cases, the Committee encourages the states parties to set up an Ombudsperson on child rights.
26 27
Concluding observations, Indonesia, CRC/C/15/Add.223, 26 February 2004, para.20. Op Cit, para.21. 28 Concluding observations, Singapore, CRC/C/15/Add.220, 27 October 2003, para.12. More or less the same concern was raised to Brunei, Cambodia, Myanmar and Vietnam. 29 Op Cit. para 13.
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It is important to note, nevertheless, that in countries where a National Human Rights Commission exists, such as in Indonesia, Malaysia, Philippines, and Thailand, this national human rights institution is usually mandated to investigate complaints with the power to recommend. It is also interesting to add that because of its very comprehensive networks of government agencies and NGOs as well as independent institutions exist from national level down to Barangay level, The Philippines seems to be different from other countries in the region. The Barangay Human Rights Action Centers are entrusted by the Philippines Commission on Human Rights to receive and investigate cases of human rights violations including child rights. 30
The promulgation of child specific legislation, the formulation of national plans, policies and strategies and the establishment of different government and/or independent machineries on children by the states parties in ASEAN indicate the willingness and attention paid to the protection and promotion of the rights of children. However, all states parties recognize that they still face a lot of challenges relating to the implementation of child rights as specified in the CRC. The Government of Vietnam, for instance, admitted that there still remain some problems relating to the functions and tasks of the government agencies responsible for the protection, care and education of children as well as their management capability, monitoring and supervision of the implementation of the national Law and the Convention. There are also a lot of difficulties in updating data relating to children as well as with the precision of the data. 31 Unfortunately, Vietnam is not an isolated case facing those problems. 32 The challenges also exist when examining the promotion and protection of child rights based on the four principles.
Legislative Measures, Policies and Mechanisms on Child Rights : An Assessment.
From a child rights perspective, the human rights of children are based on four pillars: (1) non-discrimination (Art.2); (2) the best interest of the child (Art.3); (3) child
Second periodic reports of States parties due in 1997, Philippines, CRC/C/65/Add.31, 5 November 2004, para. 29-30. 31 Periodic reports of States parties due in 1997, Vietnam, Ibid, para 32. 32 See also State parties reports on CRC of other countries in ASEAN.
30
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survival, development and protection (Art.6); and (4) the respect for the view of the child (Art.12). This section attempts to assess the legislative measures, plans, and programmes as well as national machineries on child rights by using the four pillars as a framework for examination.
Non-Discrimination
The principle of non-discrimination is enshrined in all international human rights instruments. It is also recognised that discrimination is a human rights violation and it is prohibited by most national laws. The principle of non-discrimination as prescribed in Art.2 of the CRC states that States parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or guardians race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. The principle affirms that all rights apply to all children without exception. The State parties have obligations to protect children from any form of discrimination.
In order to protect children from discrimination State parties are obliged to review their legislation and also come up with measures to eliminate discriminatory provisions and practices. In ASEAN countries, national Constitutions (if and where they exist) guard against any form of discrimination, although do not specifically single out discrimination against children. In the Cambodian Constitution, Art.31 stipulates that Citizens shall be equal before the law without distinction on grounds of race, colour, sex, language, religion, political opinion, national origin and social, property or other status.
33
The Constitution of Lao PDR prescribes in Art.22 that
Lao citizens are all equal before the law. 34 In Singapore, Art.12 of the Constitution states that a) all persons are equal before the law and are entitled to equal protection of the law; and b) except as expressly authorized by the Constitution, there shall be no discrimination against citizens of Singapore
35
The Constitutions of the three
33 34
Initial reports of States parties due in 1994, Cambodia, CRC/C/11/Add.16, 24 June 1998, para.28. Initial reports of States parties due in 1993, Lao PDR, CRC/C/8/Add.32, 24 January 1996, para.178. 35 Initial reports of States parties due in 1997, Singapore, CRC/C/51/Add.8, 17 March 2003, para.107.
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countries do not mention discrimination based on age. Furthermore, they only refer to Cambodian, Laotian and Singaporean citizens, respectively. The Constitution of Singapore even recognizes a non-discrimination right as a constitutional rights. In Vietnam, the 1992 Constitution Art.64 states that the State and society shall recognize no discrimination among children. In Thailand, the 2007 Constitution states in Art.30 that all people are equal before the law and are equally protected by law. It further states that discrimination based on birthplace, race, language, sex, age, disabilities and physical condition or health, personal status, economic or social position, creed, education and political ideology not contradictory to the provisions in the Constitution is prohibited. The provision included in the Thai Constitution could be considered as the most comprehensive provision on non-discrimination as it includes the aspects of disabilities as well as health conditions which are not commonly recognized by national constitutions.
In addition to the Constitution, in many cases, child-specific laws also prohibit discrimination against children. For example, the Child Law of Myanmar prescribes in Section 14 that every child shall, irrespective of race, religion, status, culture, birth or sex: a) be equal before the law; and b) be given equal opportunities.
36
The
Philippines goes as far as making discrimination punishable. A number of child specific laws such as Child and Youth Welfare Code (PD 603) as well as the Special Protection Act ensure that there is no discrimination against the child in any form. The PD 603 provides that all children shall be entitled to the rights set forth in the Code without discrimination as to their legitimacy, gender, social status, religion, political antecedents or any other factor. The same principle is upheld in the Special Protection Act which provides that special protection shall be ensured for the child against all forms of discrimination and that the state shall intervene on behalf of the child in such condition. The Act specifically protects the children of indigenous cultural groups against discrimination, and prescribes penalties for violations. 37 It is noteworthy that The Philippines is the only country in ASEAN with specific legislation prohibiting discrimination against children.
Initial reports of States parties due in 1998, Myanmar, CRC/C/70/Add.21, 5 November 2003, para. 37. 37 Second periodic reports of States parties due in 1997, Philippines, CRC/C/65/Add.31, 5 November 2004, para. 104.
36
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However, not all countries in ASEAN provide a legal guarantee to the principle of non-discrimination. Brunei Darussalam states in its report to the Committee on CRC that there is no legislation (prohibiting discrimination 38 ) and currently it is felt that it is not necessary to legislate on this matter. 39 The Government of Brunei Darussalam guarantees that in many aspects children are not discriminated against in any services.There is no discrimination between genders in the provision of services. 40 The Government of Indonesia admits that the principle of non-discrimination, particularly in regard to the rights of the child, has yet to be incorporated into the Constitution or into national legislation. It is hoped that the principle of nondiscrimination will be included in the Child Protection Act, which is currently being prepared. 41 As a matter of fact, the Constitution of Indonesia does provide for freedom from discriminative treatment based upon any grounds whatsoever. It also specifically recognizes a childs right to protection from discrimination. principle was reiterated in the Child Protection Act of 2002.
42
The
Although, in general legislative, measures guaranteeing non-discrimination principle are available in most countries, implementation of these measures remains problematic. In most, if not all, in the Concluding observations to the reports submitted by states parties, the UN Committee on CRC has expressed its concerns on the existence of various patterns of discrimination against children of non-nationals, migrant workers, ethnic minorities, children with disabilities, children with HIV/AIDS, etc. in most if not all member countries of ASEAN. In spite of the availability of laws prohibiting discrimination, the term and concept of discrimination has not been well-defined. Moreover there is also existing legislation which contains discriminative provisions. The revision of legislative documents in order to guarantee the application of the non-discrimination principle in domestic laws, as well as
Added by the author for clarity. Initial reports of States parties, Brunei Darussalam, Ibid, para. 43. 40 Ibid, para 44-45. 41 Second periodic reports of States parties due in 1997, Indonesia, CRC/C/65/Add.23, 7 July 2003, para. 53. 42 International Bureau for Childrens Rights, Making Childrens Rights Work : Country profiles on Cambodia, Indonesia, Sri Lanka, Timor Leste, and Vietnam, Canada, 2006, p.37.
39
38
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adoption of an effective strategy to combat against discrimination, seems indispensable.
The Best Interests of the Child
Article 3 of the CRC stipulates that the best interest of the child must be the primary consideration in all decisions concerning the child, and that the state must provide appropriate assistance if parents, or others legally responsible, fail in their duties.
43
This means that laws and policies/plans/programmes affecting children should put the childs best interest first, and they should best benefit the children.
At least as reflected in the CRC reports and other studies, it seems that the principle of the best interest of the child might not be well understood by a number of state parties, let alone the incorporation of this principle in legislative measures or policies/plans. In most cases, the best interest principle is not explicitly specified in the Constitution nor in the child-specific legislation, except in the case of The Philippines. In the CRC report submitted by Cambodia, for instance, there are two paragraphs on the best interest of the child, relating to education, health care and protection of children. This is also the case of Brunei Darussalam, which stresses in its report that under this legislation (the Childrens Order 2000), when any questions arise with respect to the welfare of the child in any particular circumstances, the best interests of the child shall always be paramount consideration.
44
In the following
paragraphs, the report elaborates the implementation of the principle by discussing issues of child welfare, agencies dealing with children, training of youth, provision of shelters for boys and girls, etc. The CRC report of Myanmar contains very similar content.
The Government of Indonesia states in its CRC report that the principle of the best interest of the child has yet to be integrated into the Constitution or into national legislation. However, the Law on Child Protection 2002 already recognizes this principle in Art.2. In everyday life, however, it can be assumed that this principle, to
Eugeen Verhellen, Convention on the Rights of the Child, Leuven, E.Verhellen and Garant Publishers, Third Edition, 2000, p. 78. 44 Initial reports of States parties, Brunei Darussalam, Ibid, para. 47.
43
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certain degree, is put into practice. Nevertheless, it must be recognized that over time this principle appears to be eroding. 45 The CRC report of Thailand follows a similar line, stating that most pieces of legislation do not explicitly mention that they were developed with the principle of the best interests of the child in mind. The principle, nevertheless, was later prescribed in the Child Protection Act. The most explicit provision on the best interest of the child is found in the Child and Youth Welfare Code and the Special Protection of Children Act of the Philippines. The principle is applied in institutions such as courts of law and other social services. 46 Singapore has made a declaration on Art.3 of the CRC. 47 Although the Government of Singapore agrees that in all our actions concerning children, the best interests of the child should be the primary consideration, Singapore is of the opinion that it is in the best interests of the child that the rights conferred on the child by the CRC should also be exercised with respect for the authority of parents and schools and in accordance with the customs, values and religions of the people. 48 The report affirms, however, that while entering such declaration, Singapores laws and practices take into account and place emphasis on the best interests of the child. 49
An examination of the Concluding observations made by the Committee on the CRC shows that the principle of the bests interests of the child is one of the concerns expressed to all states parties in ASEAN (except The Philippines) as it is not always a primary consideration in all actions taken by the government and other actors, including in matters related to family law, adoption, welfare, etc. The Committee generally recommends that each State party review its legislation and administrative measures to ensure that article 3 of the Convention is duly reflected therein and that this principle is taken into account when administrative, policy,
Second periodic reports of States parties, Indonesia. Ibid, para. 61. See the detail in Second periodic reports of Philippines, Ibid, para 112-117. 47 It was stated that the Republic of Singapore considers that a childs rights as defined in the CRC, in particular rights defined in articles 12 to 17, shall in accordance with articles 3 and 5 be exercised with respect for the authority of parents, schools and other persons who are entrusted with the care of the child and in the best interests of the child and in accordance with the customs, values and religions of Singapores multiracial and multi-religious society regarding the place of the child within and outside the family. 48 Initial reports of States parties , Singapore, Ibid, para. 115. 49 Ibid.
46
45
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judicial or other decisions are made. 50 The same pattern of recommendation is applied to all countries. In brief, it seems that the principle of the best interests of the child has not been systematically referred to in all government actions or legislation. Most countries probably believe that the governments/parents know what is best for the children.
Child Survival, Protection and Child Development
A child has the inherent right to life. The meaning of right to life has to be interpreted broadly. In the context of the right to life of the child, the State has an obligation to protect and help ensure the full development and survival of the child. Child survival includes health care, nutrition, sanitation and hygiene, and prevention against the transmission of HIV/AIDS. Child development primarily covers education and training. Child protection concerns violence against children, child trafficking and exploitation, child labour, children deprived of family environment, and children in conflict with the law.
In examining state reports of all countries of ASEAN it is noted that the areas of child survival, protection and child development are the most developed among the four principles. Annex III shows clearly that laws, policies/plans and national machineries on child protection, survival and child development are not lacking. One concrete example is the case of Vietnam. On the Governments part, a study notes that there are more than 40 legal documents directly or indirectly governing health care for children.
51
Vietnam has the Law on Protection, Care and Education of Children, the
National Programme of Action for Children 2001-2010 (NPA), and the Vietnam Committee for the Protection and Care of Children (CPCC), which was merged in 2002 with the National Committee on Population, Family and Children. In addition to that, the country also provides the Programme of Protection of Children in Especially Difficult Circumstances and has a large number of legislative measures as well as policies and programmes.
50 51
Concluding observations: Singapore, CRC/C/15/Add.220 , 27 October 2003, para.27. International Bureau for Childrens Rights, Ibid, p.125
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Indonesia confirms that this principle has long been reflected in all national policy. There are a number of development programmes particularly aimed at reducing neonatal and infant (under 5 years) mortality figures, an immunization programme, and several child education programmes. 52 Indonesia, like Vietnam, is equipped with a Child protection Act, the Law on National Education System, a National Program of Action for Children, the Continuity of Life, Development and Protection of the Mother and Child, The Indonesian Commission for Child Protection, the National Plan of Action for the Elimination of Commercial Sexual Exploitation of Children and the National Commission on the Elimination of Child Labour , to name just a few.
Myanmar, together with Cambodia, have been blamed for the use of child soldiers. In 2004, Myanmar has established the Committee for the prevention of Recruitment of Child Soldier with the Secretary of the State Peace and Development Council (SPDC) as its Chairman. A Working Committee for the prevention of recruitment of child soldiers was formed in February 2007 with the Director of the Directorate of Military Strength as its Chairman. Two task forces: Monitoring and Reporting Task force and Rehabilitation and Reintegration Task Force have also been established. 53 Although such mechanisms have been put in place, the implementation seems to be problematic. In June 2004 the UN Committee on CRC expressed deep concern about the direct and indirect impact of armed conflicts and forced labour on children in Myanmar. The Committee recommended that all combatants under 18 be demobilized and reintegrated, that the army ensure the recruits reach 18, and that the SPDC ratify the Optional Protocol and the ILO Conventions 138 and 182 54 . In March 2007, the UN General Assembly adopted a resolution on Myanmar, expressing grave concern at the continuing recruitment and use of child soldiers and strongly urging the SPDC to put an immediate end to the practice, in cooperation with the UN, particularly UNICEF. 55
Second periodic reports of States parties, Indonesia. Ibid, para. 63 Country Report on Human Rights Myanmar, Report presented at the Workshop on the Promotion and Protection of Human Rights, Supporting the Establishment of a Regional Human Rights Mechanism in ASEAN, May 16,2008, Bali, Indonesia, p.2. 54 Concluding Observations, CRC/C/15/Add.237. 55 UN General Assembly, Resolution adopted on the Situation of Human Rights in Myanmar, 61st Session, Agenda item 67(c), 13 March 2007, UN Doc.A/RES/61/232.
53
52
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As in many other cases, when it comes to child rights, The Philippines tends to be more progressive than other countries in terms of legislation, plans and policies and well as national/local machineries for child protection and development. The CRC report states that the Philippines Constitution provides that the State shall equally protect the life of the mother and the unborn child and prohibits induced abortion. The Revised Penal Code penalizes anyone who may cause an abortion. Closely related to the preservation of life of the unborn child has been the adoption of an integrated and comprehensive approach to health development.
56
It should be noted that although
the right to life is clearly recognized and protected in the constitution of all countries, not very often does it provide the right to life to unborn children and categorically prohibit abortion. Selected legislative measures, policies/plans and institutions of the Philippines show the commitment of the government to the principle of child survival, protection and development.
Most countries in ASEAN have adopted various legislative and policy measures to ensure the protection, survival and development of children and some are specifically aimed at this principle. However, Brunei Darussalam, in its CRC report, says that there is no specific provision to state the right of the child to basic necessities such as health, shelter, education, food and water. 57 The Committee on CRC, nevertheless, commends Brunei Darussalam for the excellent health-care system reflected in very good indicators and the very high school enrolment rates. 58 The Committee commends similarly on the report of Singapore noting with appreciation the high standard of living of children in the State party, and considerable efforts to implement the economic, social and cultural rights of children, in particular through the wide availability of high-quality health and education services and housing.
59
The
concluding observations imply that, to a certain extent, survival and child development are related to the level of economic and social development of the country. Brunei Darussalam and Singapore are the two most developed countries with the highest standard of living in ASEAN. The implementation of the principle of child
56 57
Second periodic reports of Philippines, Ibid, para 118. Initial reports of States parties, Brunei Darussalam, Ibid, para. 62. 58 Concluding observations : Brunei Darussalam, CRC/C/15/Add.219, 27 October 2003, para.3. 59 Concluding observations: Singapore, Ibid, para 3.
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survival and child development requires more than laws and policies but also resources. It is, therefore, not surprising to see that in spite of existing legislative and policy measures put in place, countries like Cambodia, Indonesia, Lao PDR, The Philippines, Thailand and Vietnam are facing many challenges. For example, a study shows that children in Cambodia face problems at each stage of development;
As newborns, the challenges to survive, when infant and under-five mortality rates are particularly high; As young children, the challenge to thrive, when nutrition is problematic, and health, medical and childhood services are inadequate in number, distribution and quality;
As children of primary school age, the challenge to acquire basic education and; As teenagers, the challenge to make the transition, through education, training and work, to a larger role in the family, the economy and the broader society. 60
It is to be noted that all members of ASEAN except Brunei Darussalam and Myanmar have ratified the two ILO Conventions pertaining to child labour namely ILO Convention on Minimum Age (No.138) and ILO Convention on the Worst Forms of Child Labour (No.182). However, the gap between law and practice is clearly reflected in this area , and to certain extent in the area of trafficking. Although national laws prohibiting child labour, child exploitation and trafficking in women and children exist in most if not all countries, the use of child labour, and child trafficking is widespread in Southeast Asia. According to a UNICEF report it is estimated that around one-third of global trafficking in women and children occurs within or from Southeast Asia. 61 Poverty is a contributing factor to the problems, not the absence of law.
60 61
International Bureau for Childrens Rights, Ibid, p.7. UNICEF, Situation Review of Children in ASEAN, UNICEF East Asia and Pacific Regional Office, Bangkok, December 2007, p.23.
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Although legal and political guarantees and implementing mechanisms for child protection are in place in all states parties of ASEAN, there are still laws which might not be conducive to protecting the right of the child (to life) and child development. Examples can be found in relation to the Penal Code of various States such as Brunei, Myanmar, Singapore, Thailand
62
. Myanmar, fixes the age of criminal responsibility
at seven years old, while the criminal responsibility age is eight years old in Indonesia and nine years old in The Philippines. This very low age of criminal responsibility is certainly not in the best interest of the child. Another example is the existence and legalization of corporal punishment for children in Indonesia, Myanmar and Singapore. Only The Philippines and Thailand explicitly prohibit such practice in the laws.
These examples indicate that under the principle of child protection, the area of children in conflict with the law is rather problematic in a number of countries. The UN Committee on CRC has raised these concerns to most if not all countries in ASEAN. In its Concluding observations on the CRC report of Brunei Darussalam, the Committee stated its concern that the minimum age of criminal responsibility is set at seven years, which is far too low. The Committee is further concerned that there is no juvenile justice system although it is foreseen in law that children are detained with adults and that whipping is used as a form of punishment for boys. 63 The Committee expressed the same concern to Singapore saying that the minimum age of criminal responsibility is too low, that all persons in conflict with the law under 18 are not afforded special protection, and that corporal punishment and solitary confinement are used to discipline juvenile offenders. 64 For Indonesia, while welcoming the adoption of Law No.3 of 1997 on Juvenile Justice, the Committee is very concerned at the very large number of children sentenced to jail even for petty crimes and despite article 66, paragraph 4, of Law No. 39 of 1999 on Human Rights, and that these children are often detained with adults and are detained in poor conditions, even when in detention centres for children. The Committee reiterates its
62 63
In Thailand the age of criminal responsibility was raised from 7 to 10 years old since January 2008. Concluding observations : Brunei Darussalam, Ibid, para. 55. 64 Concluding observations : Singapore, Ibid, para 44.
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serious concern that the minimum age of criminal responsibility, set at eight years, is too low. 65
However, the UNICEF study notes that progress has been made in some ASEAN countries. The report states that a number of ASEAN members including Cambodia, Thailand, Philippines, and Malaysia are reviewing existing mechanisms for child protection. In Thailand the Amended Criminal Procedure Code (1999) allows for better treatment of children in a non-threatening judicial environment, which includes provisions for children to be interrogated in private settings separate from adults, and in the presence of psychologists or social workers and other persons requested by the child. In Cambodia, a juvenile justice law, complying with international standards, has been drafted by the Cambodian National Council for Children and is being finalized by the Ministry of Justice. In The Philippines, the new Juvenile Justice Bill raises the age of criminal responsibility from 9-years old to 12-years old, and explicitly prohibits the detention of children with adults and calls for offenders of petty or victimless crimes to be redirected from the courts to diversion programmes.
66
Although much remains to be done, the efforts made by some ASEAN countries
reflect the state commitment to the rights of the child and the principle of child survival, protection and child development.
Respect for the View of the Child or Child Participation
Art.12 of the CRC recognizes a childs right to express his/her views, and to have his/her views taken into consideration in any decisions that affect them. This right to participation includes the right to information, to freedom of thought and expression, to the right to join and form associations, and the right to identity and privacy. All these rights cannot, in fact, exist independently.
As pointed out earlier, legislative and policy measures as well as national machineries on child survival, protection and child development could be considered very developed in ASEAN countries, but much less is noted in the area of child
65 66
Concluding observations, Indonesia, ibid, para. 75-77. UNICEF, Ibid, p.25.
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participation. The CRC country reports of ASEAN members focus, in general, on the views of the child on the matters pertaining to the courts (such as giving evidence), to the choice of the child in the situation of divorce (child custody), participation in youth clubs and youth associations, within and outside educational institutions, in particular. While all other countries try to demonstrate enabling laws and policies/programmes for child participation citing provisions in the Constitution relating to freedom of expression, thoughts and opinion as well as right to participation, Indonesia is the only country admitting that the principle of respect for the views of the child has yet to be integrated optimally into national legislation.
67
However, the Government of Indonesia supports the establishment of various initiatives to promote childrens ability to express themselves, such as the Childrens Forum, parliamentary teenagers, the Indonesian Childrens Congress, the National Forum for Child participation, the National Childrens Consultation, the Childrens Board, and Young Leaders Election. 68
With regards to the principle of child participation, only The Philippines provides, in the law, the respect of the principle. The Committee on CRC notes in its Concluding observations that some of the State partys domestic laws, rules and regulations explicitly respect the consent and views of the child, for example in judicial and administrative proceedings and that the State party has promoted the participation of children, inter alia, through the National Youth Parliament (Republic Act No. 8044) and student councils.
69
However, the Committee further notes that despite these
positive steps, the Committee is of the view that childrens right to participation and free expression of their views is still limited in the State party, partly due to traditional attitudes in society. 70 The traditional attitudes vis--vis the respect of the views of the child was, in fact, brought up in all its concluding observations to all other countries without exception. 71 In Vietnam, the Committee is not only concerned that traditional attitudes towards children in society still limit the respect for their
Second periodic reports of States parties, Indonesia. Ibid, para. 70. Country Report on Human Rights Indonesia, the Report presented under the UPR to the Human Rights Council Working Group on the Universal periodic Review, 1st Session, April 9,2008. 69 Concluding observations : the Philippines, Ibid, para. 29. 70 Ibid. 71 See, for example, Concluding observations on the report of Brunei, para 31, Indonesia, para. 35, and Singapore, para 28, and Vietnam, para.29.
68
67
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views, within the family, schools and society at large, but notes in addition that administrative and judicial proceedings are not always required to take the views of the child into account, for instance in the case of divorce hearings. 72
The mere absence of laws, policies/plans, as well as mechanisms to recognize or encourage child participation, and comments made by the Committee of CRC definitely reflect the issue of image and expectations that adults and/or those in authority have on the child. The image of the child, though changing over time, has some elements which remain unchanged, at least in ASEAN countries. The
traditional attitudes that the Committee refers to so frequently, view children as irresponsible, irrational, emotional and incapable. The sense is that until he/she comes of age, a child is immature, and has to be aided and stimulated to become an adult. In this way children were gradually put in a position of not yet being; not yet knowing; not yet being able to; therefore not yet able to express themselves, not yet responsible. 73 Therefore, their views are not to be listened. These traditional
attitudes cannot easily be changed by legal or policy measures. However it is ironic that they are deemed mature and responsible enough to carry out criminal activities for which they might be jailed in much the same way as an adult.
Conclusions
This inexhaustive review of legislative and policy measures, as well as existing mechanisms on the protection and promotion of child rights, both at regional and national levels, reveals that legal and policy commitments are not entirely lacking in ASEAN as a region and in ASEAN members. Most if not all countries have tailored, or at least put efforts to tailor, their national legislations to the principles set forth in the CRC. ASEAN members have also established bureaucratic as well as specialized institutions to ensure the implementation of child protection and welfare. Programmes and policies have specially been designed to deal with different issues of the rights of children.
72 73
Concluding observations : Vietnam, CRC/C/15/Add.200, 18 March 2003. Eugeen Verhellen, Ibid, p.16.
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Some observations could be made in regards to the existing legislative and policy measures as well as institutions, at the national level in particular. Using the three P framework offered by Eugeen Verhellen, 74 the following has been shown;
Provision meaning laws, policies, and mechanisms which provide goods and services (such as food, health care, education, social security, etc) are rather well put in place in ASEAN countries. The implementation differs, though, according to the level of economic and social development in a given country.
Protection covers the right to be protected from certain actions, for instance, maltreatment and neglect, the right to be protected from all forms of exploitation, and rights in the justice system. As demonstrated above, to different degrees, there are a number of laws, policies and mechanisms in existence in most if not all countries in ASEAN. What is problematic is legislation relating to criminal justice and procedures which are not well aligned with international standards and the CRC.
Participation deals with the right of children to share in decisionmaking which affects them. Although there is scope for this in the legislation of some ASEAN countries, such as The Philippines, there remains much to be accomplished in this area.
While legislative and policy measures have been put in place in ASEAN countries, there is still a difference from one country to another, and in the non-compliance of laws and policies to international standards. Some concrete examples are as follows;
Definition of the child. Not all countries define a child as every human being below the age of 18 years. Myanmar defines a child in Section 2 of their Child Law as a person who has not attained the age of 16 years; and Youth means a person who has attained the age of 16 years but has not attained the age of 18 years. 75 No legal provision giving a general definition of the child and of the age of majority has been adopted in Cambodia. 76 Moreover, in most
74 75
Ibid., p.80-81. Second periodic reports of States parties, Myanmar, CRC/C/70/Add.21, 5 November 2003, para34. 76 Initial reports of State parties due in 1994 : Cambodia, CRC/C/11/Add.16, 24 June 1998, para. 22.
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if not all cases, even within one same country different laws offer different definitions of a child for different purposes, and this is the case of all countries without exception. 77 Corporal punishment is lawful in some countries such as Indonesia, Myanmar, Singapore but is prohibited in others like The Philippines and Thailand. One last example which might not seem important is the concept of a Childrens Day. Currently three countries in Indochina: Cambodia, Lao PDR and Vietnam, celebrate Childrens Day on June 1. A National Childrens day is observed on July 23 in Indonesia, while in Thailand the second Saturday of January is declared Childrens Day. It may well be that celebrating Childrens Day throughout ASEAN on the same day would be one indicator of an integrated ASEAN community.
This last example raises a question: if ASEAN wants to be an integrated organization it may need to come up with certain common platforms and build an identity in which all countries adhere to, such as having one common Childrens Day 78 , serving children in ASEAN sharing an ASEAN identity (if it could be considered as the most basic ASEAN identity). Another more important question here is whether or not it is necessary for ASEAN countries to harmonize their laws and policies in order to make them compatible with each other. Because of its strong principles of state sovereignty and non-interference, it would be unthinkable for ASEAN countries to compromise their national laws. It is more practical to make national laws compliant with some common standards, in this case the CRC, to which all ASEAN countries are party. For this purpose, ASEAN may need to accelerate the process of the establishment of an ASEAN Commission on the protection and the promotion of the rights of women and children to meet the commitment in VAP. Such a Commission would also act as a clearinghouse and assist in the promotion and protection of the rights of the child in the region.
See for example the case of Singapore in Initial report, Singapore, ibid, para. 81-104; Initial report of Brunei Darussalam, ibid, para 30-42. 78 July 5 is the ASEAN womens Day .
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CHAPTER IV Lessons Drawn from a Comparative Analysis of Existing Human Rights Machineries in Africa, the Americas and Europe *
Within a very short period, regional human rights mechanisms have evolved into an essential part of the international institutional structure in this field. They have come to provide critical infrastructures in which respect for and understanding of human rights can flourish. As outlined in the first chapter the Association of South East Asian Nations (ASEAN) is contemplating the creation of a regional mechanism to address human rights and an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children which would be established pursuant to their respective commitments contained in the ASEAN Charter adopted in 2007 and the Vientiane Action Programme (VAP) adopted in 2004. 1 Many organisations,
particularly the (United Nations) Office of the High Commissioner for Human Rights (UNOHCHR), have been arguing for the implementation of the two documents. Civil society groups have also been instrumental in promoting and fostering this agenda, particularly, the Working Group for an ASEAN Human Rights Mechanism (the Working Group). 2 This chapter sets out various models and considerations that might be taken into account as ASEAN determines the regional human rights mechanism that is most appropriate for the region. The rights of women and the rights of children will be a focus as they are specifically identified in the VAP. In order to assess the available models, the three existing regional human rights mechanisms will be evaluated for comparative purposes and in order to consider their strengths and
Maureen Maloney Q.C. is a Professor of Law at the University of Victoria, Victoria, British Columbia, Canada. She is also a SEARCH team member. The research team thanks her for allowing us to include her paper in this research with some modifications. The last part of the paper on Value of Regional Human Rights Mechanisms will be incorporated in Chapter V. 1 See Vientiane Action Programme (VAP) 2004-2010, online: ASEAN <http://www.aseansec.org/Publ-VAP.pdf>. 2 The Working Group holds annual meetings with senior officials from ASEAN to discuss progress on the main planks of the VAP. The sixth annual workshop was held in Manila, Philippines on July 14 and 15, 2007 ( The Sixth Annual Workshop) . http://www.aseanhrmech.org/conferences/index.html
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weaknesses. 3 In order to provide as broad idea as possible both the broad-mandated mechanisms and specialised ones shall be examined.
The Inter-American System
Instruments
The Inter-American system was created in 1945 under the organizational umbrella of the Pan American Union. As such, it is the oldest regional organisation in the world. With the formation of the United Nations, member nations were acutely attuned to the necessity of creating a culture of human rights within specific countries and regions. To fit within this new world order, the Organization of American States (OAS) was established and, six months before the adoption of the Universal Declaration of Human Rights 4 , it adopted the Charter of the OAS and the American Declaration on the Rights and Duties of Man 5 (The American Declaration).
The rights set out in the American Declaration are similar in scope to the UN Universal Declaration of Human Rights. They encompass political and civil rights (life, liberty, religious freedom, fair trial) and economic and social and cultural rights (leisure time, work and social security). The main difference with the American Declaration is that it delineates corresponding duties owed by the citizens of the Americas. The general duties imposed upon citizens range widely - from duties to pay taxes, to the support and protection of minor children, to the duty of civil or military service. Other duties correspond to particular rights. For example, the right to vote requires the duty to exercise that vote; the right to an education, connotes the duty for legal guardians to obtain an elementary education for children.
For more detailed information on the these regions see Rhona K. M. Smith, Textbook on International Human Rights, (Oxford University Press, 2003); Henry J. Steiner and Philip Alston, International Human Rights in Context (Oxford University Press, Third Edition, 2007). 4 Universal Declaration of Human Rights, UN GA Res. 217, U.N. Doc. A/811 (1948). 5 American Declaration on the Rights and Duties of Man, OAS Res. XXX, adopted at the 9th International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System (Basic Documents), OR OEA/Ser. L/V/I.4 rev.12 (2007).
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In 1969 the OAS signed the American Convention on Human Rights 6 (the American Convention) which was not adopted until 1978. The American Convention is more specific than the American Declaration. However the rights granted are more limited, concentrating primarily on civil and political rights 7 and the obligations on individuals are general and vague rather than specific. 8 Although the Convention is the most important statement with respect to Human Rights in the region, the American Declaration remains important for those states that have not ratified the Convention.
There are, of course, a number of other applicable human rights protocols and conventions, but for the purposes of this paper, the most important is the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence against Women 9 which entered into force in 1995. This Convention is very wide ranging. It deals with all forms of violence against women: physical, sexual and psychological. It addresses both the public and private realms of violence and expressly prohibits violence in the home. Emphasis is placed on the importance of education in changing cultural patterns of patriarchal domination, often expressed through violent means at every level of society. In addition to addressing violence in a protective manner, the Protocol also strives to empower women, granting them civil and political rights such as the right to life, liberty, integrity, and the right to a fair trial and legal protection. Importantly, duties are imposed on State Parties to take appropriate measures to prevent, punish and eradicate violence against women. In recognition of the deeply embedded culture and acceptance of inequality, State Parties are required to educate and promote different cultural patterns of conduct between men and women, again with a view to changing the patriarchal patterns of behaviour that have historically resulted in relationships of inequality between men and women. The enforcement of these rights and duties is dependent upon communications by
American Convention on Human Rights (American Convention), OAS Treaty Series No. 36, 1144 UNTS 123, signed Nov. 22 1969, entered into force 18 July 1978, reprinted in Basic Documents,ibid.. 7 Although article 26, American Convention, ibid., requires states to progressively adopt measures to achieve progressively economic, social and cultural rights, individuals are not given these specific rights. 8 Article 32, ibid, states that every person has responsibilities to his family, his community and mankind 9 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Convention of Belm do Par, signed June 9 1994, 33 I.L.M. 1534, entered into force March 5, 1995.This Convention was preceded by the United Nations Declaration on the Elimination of Violence Against Women (1993).
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individuals and NGOs to the Inter-American Commission. In addition, states are required to submit periodic reports as to how they are implementing the obligations placed upon them by this Convention.
Inter-American Commission on Human Rights The Inter-American Commission on Human Rights 10 was established in 1959 and given additional powers with the adoption of the American Convention. It is the institution that has the primary responsibility for educating and promoting the human rights and duties outlined in the Inter-American Convention. The Commission also conducts in-country investigations and organises thematic and country specific rapporteurships.
There are seven commissioners, appointed to one-time renewable term of four years, who must be persons of high moral character and recognised competence in the field of human rights. 11 Each commissioner also takes responsibility as a rapporteur on specific themes such as, gender, children, migrant workers and indigenous peoples.
The Commission has a mandate for education and also to receive complaints from individuals or State Parties. 12 Once an investigation into the complaint is completed, the Commission attempts to settle the matter diplomatically. If there is no resolution, the report and recommendations are passed on to the OAS for whatever action it deems appropriate. With the creation of the Inter-American Court of Human Rights, the Commission may now send unresolved matters for hearing and binding resolution with respect to states that have ratified the protocol. In effect, the Commission is now the investigatory and diplomatic enforcement arm, and also serves as the gatekeeper for complaints to proceed to the court for binding determination. As with all international human rights mechanisms, individuals must exhaust their domestic
Online: Inter-American Commission on Human Rights, <http://www.cidh.oas.org/>. Statute of the Inter-American Commission on Human Rights, OAS General Assembly, Res. 447 9th Sess. (1979), OR OEA/Ser.P/IX.0.2/80, Vol. 1 at 88, reprinted in Basic Documents, supra note 11, art 2. 12 American Convention, supra note 12, art.44.
11
10
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remedies before sending a communication to the Commission. The Commission may also request an advisory opinion from the court.
Finally, the Commission has developed a system of precautionary measures pursuant to Article 25 13 through which the Commission, at the request of a party or on its own initiative, may request a state to adopt precautionary measures to prevent irreparable harm to persons. These measures originally targeted the death penalty but have now been expanded to protective measures to ensure a party to a complaint is safe or that evidence related to the case is secured. In the event that a state does not abide by the requested precautionary or protective measures, the Commission may appeal to the court to impose provisional measures.
Inter-American Court on Human Rights
The Inter-American Court on Human Rights was established in 1979 to interpret and make decisions on cases arising from the American Convention and other relevant treaties. Although few cases were referred to it during its first ten years of operation, it has produced significant decisions.14 Cases may be referred by the Commission or a member state. An individual has no direct access to the court. In addition, the court only has jurisdiction over those states that have accepted contentious jurisdiction either on a blanket basis (for any case brought against it) or on a case by case basis. The court has heard cases involving the death penalty, the killing of street children and massacres during armed conflict in Colombia and Guatemala. Decisions of the court are binding. Although appeals are not allowed, parties may ask for interpretation within 90 days of receipt of a decision. 15 The court also issues advisory opinions on the request of the Commission or a state party. In terms of composition, there are seven judges, intended to be of the highest moral authority, who are elected from member states for a six-year, one time renewable, term.
Rules of Procedure of the Inter-American Commission on Human Rights, OAS Inter-Am. C.H.R.,109th Special Session (2001), reprinted in Basic Documents, supra note 11, art 25. 14 See for example one of the most widely cited and important regional human rights cases: VelsquezRodriguez v. Honduras, (1988), Inter-Am. Ct. H.R. (Ser. C.) No. 4, 28 I.L.M. 291 (1989). 15 Supra note 17, Art. 50.
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Specialised Institutions for Women
It was in the Americas, in 1928, that the first regional institution focusing exclusively on the rights and issues of women was established, namely, the Inter-American Commission of Women (CIM). The CIMs functions are wide-ranging, including identifying areas in the economic, social, political or cultural spheres that are important for fostering the equal treatment of women and men, and devising strategies aimed at rectifying discriminatory practices and procedures. Education is again recognised as an important tool by which the CIM may assist in ensuring that women participate as fully as men in all spheres of life. Furthermore, the CIM is given the mandate to recommend to member states education, training or other methods to support the full participation of women in society. Finally, the CIM recommends legal and other strategies to be employed by member states in an effort to achieve greater equality between men and women.
The CIM is composed of 34 delegates from OAS member countries who tend to be officials from the government departments dealing with issues of gender equality. The CIM meets bi-annually and therefore the vast majority of its work is achieved through its executive committee (consisting of its president, vice-president and five other members) that is elected at the bi-annual meeting
The CIM has a broad-ranging mandate and a commendably broad geographical representation. It also has the power to carry out in-country and comparative studies. However, it is clear that these are studies, not investigations. There is also a wide educational and promotional mandate. In effect, the CIM is a promotional, research and advocacy body; strategies of this sort have proven crucial in placing womens rights on the agenda in the region.
Another important institutional contributor to womens rights in the Americas was the creation of the Special Rapporteur on the Rights of Women in 1994. This has been an important institutional addition. The mandate has allowed the Special Rapporteur to carry out on-site country investigations and to produce thoughtful and practical thematic reports on areas of considerable interest and importance to women in the - 82 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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region: a status report 16 and more recently, a report on womens access to justice have emerged. 17
Nevertheless, there are also many weaknesses inherent in the design, mandate and functioning of the CIM. Regrettably, its delegates cannot be considered independent since many of them are government officials. Their broad mandate may also be a weakness since there are no specific mandates or expertise that are required: given the complexity of the issues and the size of the region, this may become overwhelming. The overly inclusive mandate may result in the CIM simply being stretched too thin. In addition, its meagre budget and resources mean that it may ultimately be able to accomplish very little. The CIM is primarily an institution designed to study and promote womens rights rather than one that protects and empowers women to exercise and advance their rights. The combination of the infrequency of its bi-annual meetings and the lack of staff and resources makes it extremely difficult for the CIM to take on large or complex projects. The lack of institutional capacity is compounded by the lack of enforcement capacity: their recommendations do not need to be taken seriously and implemented.
Childrens Rights
Childrens rights have not figured as significantly in the human rights system in the Americas. There is only the solitary article 19 of the American Convention that provides each child in the region the right to protection from the state. However, there are no specific entitlements to the type and areas for which protection is granted. An additional Protocol to the American Convention has given children the right to grow up under parental protection except in exceptional circumstances. 18 This Protocol also grants a right for every child to have a primary education. Furthermore, acting on pressure from NGOs, a Special Rapporteur on Children was appointed in
OAS, Inter-American Commission on Human Rights, Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, OR OEA Ser. L/V/II.100 Doc.17 (2007). 17 OAS, Inter-American Commission on Human Rights, Access to Justice for Women Victims of Violence In the Americas, OR OEA/Ser. L/V/II. Doc. 68 (2007). 18 OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador, 28 I.L.M. 156 (1989), signed Nov. 16, 1988, entered into force Nov. 16, 1999, reprinted in Basic Documents, supra note 7, Art. 16.
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1999. The current rapporteur has recently been appointed by the Secretary-General to prepare a study on violence against children
One can see that the Inter-American System for protecting human rights has grown over the years from a relatively weak system to a more robust one. The system commenced with a Commission which had a relatively weak mandate and no enforcement powers. As a recognition of the importance of human rights grew within the region, the Commission was given greater powers including the right to receive communications from individuals. A court was also established. For many years, the Commission was the most important organ, but more recently, the Inter-American Court has taken on some important cases concerning extrajudicial killing of street children, extrajudicial killings in times of social upheaval and police and state violence against political protestors. It must be acknowledged, however, that the region continues to face enormous human rights challenges.
The African System
Instruments
The African system of human rights exists under the umbrella of what was previously the Organization of African Unity and is now the African Union 19 . The main instrument governing human rights is the African Charter on Human and Peoples Rights 20 (the African Charter). The African Charter provides many of the same civil and political rights and social, economic and cultural rights provided for in other similar human rights instruments. It is distinctive in three main areas: its preoccupation with peoples rights, not human rights; its emphasis on obligations, rather than rights; and its emphasis on the indivisibility of rights.
19
For an excellent detailed overview of the African System, see: Fatsah Ouguergouz, The African Charter on Human and Peoples Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff Publishers, 2003). 20 African Charter on Human and Peoples Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). entered into force 21 October 1986
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The emphasis on peoples rights and on obligations results from a desire to make the African Charter distinctively African, representing the specific historical, economic, social and cultural context of the region. Replacing individual rights with collective rights reflects the African view that communities rather than individuals are the focal point for organising African societies. Individuals are considered as being rooted within their communities and, as such, should claim rights as members of that community rather than as isolated individuals. collective rights from within a particular society. obligations to their community and society. 22
21
Accordingly, individuals invoke Similar notions of an individuals
relationship to the collectivity or community imbue the emphasis on individuals
The final distinctly African vision is the concept of the indivisibility of rights: distinctions in importance or enforcement are not made between civil and political rights or economic, social and cultural rights as happens in the United Nations, Europe and, to a lesser extent, in the Americas. This recognises that meeting the social, economic and cultural needs is as important to the people of Africa as civil and political rights, given the level of deprivation and poverty that many Africans endure. The requirement that rights be indivisible also highlights the reticence of the United Nations (and particularly Western countries) to place social and economic rights on an equal footing with civil and political rights.
Womens Human Rights
More recently, in addition to the rights contained in the African Charter, there was recognition that women needed specific measures and rights if the inequalities between men and women in Africa were to be addressed. Even though both the Preamble and Article 2 of the African Charter specifically identified sex as a prohibited ground of discrimination, the plight of African women had not improved. Accordingly, the African Union Constitutive Act reaffirmed the critical importance of African nations to promote gender equality. 23 In an attempt to further promote gender
Ibid., Art. 20 & 21. See articles 27-29, African Charter, ibid. 23 See The Constitutive Act of the African Union, adopted 11 July 2000, OAU Doc. CAB/LEG/23.15 (2001), entered into force 26 May 2001Article 4(l).
22 21
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equality, the African Union adopted the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa 24 (African Womens Protocol) in 2005. 25
The Protocol covers a comprehensive array of rights for women. These include civil and political rights including the following: elimination of discrimination against women; life; liberty; integrity; security of the person; access to justice; and participation in political and decision-making processes. There are broad social and economic rights, including adequate housing, food security, economic and social welfare rights and health and reproductive rights. Furthermore, the African Womens Protocol deals with areas of specific concern to women including marriage, separation, divorce and annulment of marriage, inheritance and widows rights. And finally, it deals specifically with development rights including the right to a healthy and sustainable environment.
The Protocol is established under the auspices and mandate of the African Commission. In order to carry out this mandate, the African Commission has established a Special Rapporteur on Womens Rights who has been granted a very broad mandate to study womens rights in the region, to assist States to ratify and implement the Womens Protocol, to collaborate with NGOs, and to establish guidelines and make recommendations for the full implementation of the Womens Protocols throughout the African Union. 26
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Union, Maputo, CAB/LEG/66.6 (Sept. 13. 2000), 1 Afr. Hum. Rts. L. J. 40 (2001), entered into force Nov.25, 2005. 25 For an extremely good overview of the discussions and debates leading up to the adoption of this Protocol, see Fareda Banda, Women, Law and Human Rights: An African Perspective (Oxford: Hart Publishing, 2005) 26 Resolution on the Designation of the Special Rapporteur on the Rights of Women in Africa, ACHPR /Res.38(XXV)99, online: ACHPR <http://www.achpr.org/english/resolutions/resolution43_en.html>.
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African Charter on the Rights and Welfare of the Child
The African Charter on the Rights and Welfare of the Child (the Africa Childrens Charter) 27 was adopted in 1990. The emphasis in the African Childrens Charter is placed upon the best interests of the child through the provision of services and protection from abuse. It provides for a wide variety of services to which children are entitled. For example, children have a right to education, leisure, health services, parent care and protection. Children must be protected from harmful social and cultural practices, child abuse and torture, sexual exploitation, apartheid and discrimination. Finally, this Charter also deals with specific practices that affect African children and that need to be addressed including trafficking and abduction, the administration of juvenile justice, separation from parents and armed conflict. Notably, the African Childrens Charter places little emphasis on involving children in decisions that affect their lives, a feature prominent in the United Nations Convention on the Rights of the Child. 28
The African Childrens Charter is overseen by a Committee of Experts on the Rights and Welfare of the Child 29 whose mandate is to promote and protect the rights and welfare of the child. Despite its laudatory objectives, the Committee of experts has no enforcement mechanisms, country reporting requirements, monitoring or other similar types of powers.
African Commission on Human and Peoples Rights The African Commission on Human and Peoples Rights30 (the African Commission) is the body responsible for promoting, interpreting, and investigating breaches of the African Charter and the African Womens Protocol. There are eleven commissioners who are independent human rights experts. The African Commission meets only twice a year for fifteen days on each occasion. Despite this limited time commitment,
African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999. 28 Convention on the Rights of the Child, GA Res. 44/25, annex, 44 UN GAOR Supp. No.49 at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990. 29 Online: <http://www.africa-union.org/child/home.htm>. 30 Online: < http://www.achpr.org/>.
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the African Commission has attempted to make its meetings as public and productive as possible. The first seven days of each session are open to the public and allow for presentations and dialogue amongst the African Commissioners, governmental representatives and NGOs who have been granted observer status with the commission.
Unlike the other regional human rights mechanisms, the African Commission does review State reports every two to four years. After detailing how the State has or has not fulfilled its obligations under the African Charter and the African Womens Protocol, the African Commission enters into a dialogue with the States representatives. Following this dialogue, the African Commission will adopt concluding observations.
Similar to their Inter-American colleagues, the African Commissioners have established thematic rapporteurs who have delivered a variety of important reports on a wide array of issues including: The Rights of Women in Africa; Extrajudicial and Arbitrary Executions and Killings in Africa; Human Rights Defenders in Africa and the Working Group on Indigenous Peoples. Thematic reports are perceived as less threatening to individual State investigations since they only address single issues involving several, if not all, member states. In addition, the individual commissioners are given responsibility for several countries in the region. Individual members visit their respective countries throughout the year to meet with governmental officials, to remind them of their obligations and to meet with NGOs and to undertake other promotional presentations on human rights.
Finally, the African Commission also accepts individual and inter-state complaints which it investigates and attempts to mediate a settlement. In the event that the matter is not settled, the African Commission makes recommendations as to how to resolve the matter. The State is required to respond with a plan of action designed to implement the decision within ninety days. If the specific state refuses to comply, the recommendations are reviewed by the Executive Council (comprising the Ministers of Foreign Affairs) who may choose to put political pressure on the recalcitrant State to act. - 88 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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The African Court on Human and Peoples Rights
In 1998 the OAS (now African Union) adopted a Protocol that led to the establishment of the African Court on Human and Peoples Rights in 2007. 31 The court has eleven judges elected by the African Union Assembly, which is specifically directed in article 14 to: ensure adequate gender representation. 32 There is no direct access to the court by an individual (unless the State makes a specific Operational Declaration to that effect). The only direct access is for States or the Commission. Accordingly, the African Commission is the gatekeeper for determining which complaints will proceed to the Court. It is too early to say how the system is working in practice. It does enjoy broad jurisdiction, though Article 3(1) 33 of the Protocol provides that the court will hear cases concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights Instrument ratified by the State concerned (emphasis added). Accordingly the court will make binding determinations on any international treaty which a member state has ratified and is not constrained to those within the African system. The Commission will continue to play all of its current roles. However, unlike the recommendations made by the Commission, the Courts decisions will be binding.
The African approach to creating a regional human rights mechanism was a cautious one. It commenced in 1981 with a relatively weak Charter and even weaker institutional support. The Commissions mandate and powers were limited. In addition, the time allocated to meetings was sporadic and brief. Moreover, the staff and financial resources allocated to the Commission were very limited. Accordingly, Commission activities were limited at its commencement. Nevertheless, with the passage of time the African commissioners, by means of liberal interpretations of their role and powers, have been able to cultivate the groundwork for a more serious respect for human rights in Africa, slowly building a culture of human rights in the region.
Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights, 9 June 1998, OAU Doc OAU/LEG/EXP/AFCHPR/PROT (III), entered into force Jan. 25, 2004. 32 Ibid. Art. 14. 33 Ibid., Art. 3(1).
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In particular, the Commission has been remarkably open to civil society groups playing a major role in the system, both on reporting on the state of human rights in a particular country and on specific thematic reports. Such inclusion of NGOs has had a mutually beneficial symbiotic relationship: it has assisted the African Commission to remain informed on current issues in the region; it has also raised the profile and legitimated the important work being carried out by NGOs in the region. A major concern has been the lack of compliance by states with the recommendations of the Commission which has been rectified to some extent by the fact that the recommendations of the Commission are now considered by the Executive Council rather than the African Union Assembly. This has resulted in a more robust accountability system that has been bolstered by the establishment of a court with the power to make binding decisions on the state parties.
Europe
Instruments
Europe has several regional mechanisms for protecting human rights: the Council of Europe, the European Union and the Organisation for Security and Cooperation in Europe. The Council of Europe (the Council) is the most longstanding and influential and as such this paper will focus upon this mechanism.
In order to join the Council of Europe prospective members must accept the concepts of human rights and fundamental freedoms, as well as the rule of law. 34 Once a State has been admitted to the Council of Europe, violation of human rights and fundamental freedoms can result in suspension and, in extreme cases, expulsion from the Council. 35
34 35
Statute of the Council of Europe, Aug. 3 1949, CETS No.001, entered into force Aug. 3 1949, Art. 3. Ibid. Art. 8.
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The European Convention on Human Rights and Fundamental Freedoms
The governing instrument in the Council of Europe is the European Convention on Human Rights and Fundamental Freedoms 36 (the European Convention), which was modeled to a great extent on the United Nations Universal Declaration of Human Rights. The European Convention was drafted in 1950 and focuses primarily on civil and political rights. There is a three-tier hierarchy of these rights: those which are inviolate and non-derogable (such as rights against torture, slavery and the right to life); those rights subject to very specific limitations, such as the right to liberty and security of the person and the right to a fair hearing; and thirdly, those rights which are subject to competing rights or interests such as respect for private and family life, freedom of expression, peaceful assembly, and religion, which wants be weighed against public safety, the prevention of disorder and the protection of health or morals. Although the European Convention was drafted with several legal systems in mind, the court has ruled that it makes its decision autonomously (although the court has accepted a doctrine of a margin of appreciation to take into account particular cultural or moral imperatives of a specific country within limits). The European Court has also determined that the European Convention should be interpreted as a living document in the current context and environment and not remains frozen and limited to the historical meaning that may have existed at the time of adoption.
The European Court's decisions are binding on the State to which they are directed. However the Court does not have its own enforcement mechanism. The obligation rests with the individual state to execute the judgment of the European Court, which will not spell out precisely how a particular decision is to be implemented. The individual State may choose measures that are appropriate to its political, economic or legal system. The Committee of Ministers is the organ for supervising execution of the Courts judgment. The Committee will supervise measures which the State has taken to implement the Court decision; there will be a dialogue between the Committee and the State to assess the progress that has been made. The Committee of
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 11 1950, CETS No.005, 213 U.N.T.S. 222, entered into force Sept. 3 1953.
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Ministers will engage in diplomatic prodding and, if necessary, sterner critiques when the respondent state fails to implement the Court's decision in a timely manner.
The European Convention does not require country reports to be produced by States to report on how they are implementing the Treaty Obligations. However, there are reporting requirements for other Treaties such as the European Social Charter 37 and the Framework Convention for the Protection of National Minorities. 38
There is a clear distinction in the enforcement mechanisms available for civil and political rights and social, economic and cultural rights. In the case of the Social Charter, there is only a limited right to place complaints of violations by specified recognized organisations. 39 This distinction illustrates the emphasis and priority placed on civil and political rights rather than social, economic and cultural rights by State Parties. Clearly there is no indivisibility of rights in the European system; instead, there are clear priorities and ranking of the rights at issue.
Womens Rights
There are few specific rights regarding women in the European Convention. Article 14 is the only one that recognises the inequalities which exist between men and women. Article 14 outlaws discrimination on the basis of sex. This lacuna is mitigated somewhat by the addition of Protocol 12 40 which elaborates upon the prohibition against discrimination set out in article 5 of Protocol 7 which addresses the inequality between spouses. 41
European Social Charter, Oct. 18 1961, CETS No.035, 529 U.N.T.S. 89, entered into force Feb. 26 1965. 38 Framework Convention for the Protection of National Minorities, Feb. 1 1995, CETS No.157, entered into force Feb.1 1998. 39 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Nov. 9 1995, CETS No.158, reprinted in I.L.M. 1453 (1995), entered into force July 1 1998. For a complete list of the organisations entitled to lodge complaints see the Council of Europes website at <http://www.coe.int/t/e/human_rights/esc/4_collective_complaints/Organisations_entitled/default.asp# TopOfPage>. 40 Protocol No.12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4 2000, CETS No.177, entered into force April 1 2005. 41 Protocol No.7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 22 1984, CETS No.117, entered into force Nov. 1 1988.
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Despite the lack of a specific equality provision in the European Convention, the Council of Europe has undertaken a great deal of work to address the issue of gender equality. In 1979, the Council created a Committee on the Status of Women which, in 1981 evolved into the Committee on Equality between Women and Men. The name change reflected a change in approach, a recognition that the focus should not be solely upon women but also upon the social, economic, cultural and political relationships between women and men. This committee carried out work regarding a number of important issues including the following: political participation, violence against women in the home and the concept of positive action to bring about greater gender equality. 42
This committee ultimately became a permanent institutional structure, which is currently named the Steering Committee for Equality Between Women and Men. It has been assigned the task of analyzing the position of women and men in European countries and promoting women's equality. The committee has frequently published reports, held conferences and helped foster greater communication and co-operation between member states. It has also designed handbooks and promoted best practices as to how to promote and implement gender equality in a variety of areas. The overriding philosophy is that gender equality is a fundamental right and is a requirement for democracy. Within these broad criteria practical strategies and analysis have addressed key issues such as violence against women, which has been extended to combating trafficking in human beings for the purposes of sexual exploitation. In addition, free choice in matters of reproduction and lifestyles have also been tackled. The latest concerns revolve around migration, cultural diversity and gender equality, as well as the balanced representation between women and men in all walks of life. 43
Although the committee has undertaken important work, it should be noted that it has no enforcement or remedial powers in the event that countries fail to co-operate.
For a description of the work carried out by these committees see the Council of Europes website at <http://www.coe.int/t/e/human_rights/equality/01._overview/2._background_documents/093_EG(2002 )05.asp#TopOfPage>. 43 For a complete list of areas which have been covered see ibid.
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Childrens Rights
The Council of Europe adopted the European Convention on the Exercise of Childrens Rights in 1996. 44 This Convention has a broad mandate to include
children in decision-making processes affecting them, including legal decisions. The Convention also establishes a Standing Committee to assist States in implementation and to strengthen and promote the participation rights of children.
The European Court on Human Rights
The European Court on Human Rights is the most longstanding, respected and effective Regional Court for Human Rights. It comprises 47 justices, one from each member state. The European Court accepts both State and individual complaints, though there have been very few inter-state complaints. As in most systems, an individual complainant must have exhausted domestic remedies before submitting a complaint. At its inception, jurisdiction over states by the European Court was on an opt-in basis. In 1998, adjudication became compulsory when Protocol 11 came into force. 45
The Court acts more like an appeal court than a trial court, although it does have the power to call witnesses and to make on-site visits as it deems necessary. However, the latter powers are rarely utilised since the relevant facts are often not in dispute. Most cases involve the interpretation of the European Convention on the basis of a statement of agreed facts.
Although decisions of the European Court are binding on States, the rulings do not have any direct legal effect on legislation adopted by the respondent state unless its domestic law mandates this result. The European Convention asserts that the State Parties, undertake to abide by the judgment of the court in any case to which they are
Convention on the Exercise of Childrens Rights, Jan. 1 1996, CETS No. 160, entered into force Jan. 7 2000. 45 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, May 5 1994, CETS No.155, entered into force Nov. 1 1998.
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a party. 46 In effect, when the court determines that a state is in violation of its obligations to an individual or group, the state must take measures to put an end to the infringement or abuse and to prevent further such violations. Damages and costs may also be awarded. 47 The implementation of the rulings is monitored by the Committee of Ministers. The European Court may also issue advisory opinions on the interpretation of the European Convention.
European Commissioner on Human Rights
There is also a European Commissioner on Human Rights whose mandate is primarily educational, promotional and advisory to the 47 members of the Council of Europe.
The European system is the best financed and resourced system for dealing with regional human rights mechanisms. It is based largely on a legal system, relying upon a court with binding decision-making powers. While this is an enormous strength in that it can offer binding decisions, it also has its drawbacks. Courts are not always the best institutional mechanism for dealing with systemic or cultural forms of discrimination. The types of evidence introduced and rules of procedure may not allow for all the social, economic, and cultural information required for making broad-ranging public policy decisions of considerable importance to one or more States. Courts are also not well equipped to implement preventative measures or to address systemic issues.
Court processes are also time consuming and costly. The latter concern has been met to some extent with the provision of legal aid to complainants who are unable to afford to pay all or some of the legal costs. The workload of the court has increased greatly with the addition of new member states to the Council of Europe in recent years. There are increasing complaints over the time lag between the laying of a complaint and hearing, due to growing backlogs in the courts. The concern over the timeframes is exacerbated by the delay of several countries in implementing the decisions of the court. These issues highlight the need for adequate resources, the
46 47
Supra note 41, Art. 46. Ibid., Art. 41.
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political will to ensure enforcement of decisions and the importance of developing strong national human rights mechanisms to ease the burden on regional mechanisms.
The limits of legal mechanisms based on a complaint-driven process has increasingly been recognised by the Council of Europe. In particular, the cost and duration of such complaint systems are out of the reach of the poorest, most vulnerable people -precisely those who are most likely to be subjected to human rights abuses. One such example pertains to acts of torture and inhuman and degrading treatment. Although there is a prohibition on torture and inhuman and degrading treatment or punishment set out in the European Convention, it was felt necessary to establish an additional body, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). 48 The CPT visits places of detention throughout member states to observe living conditions and make recommendations for improvement where necessary. The Council of Europe also provides human rights training programmes for specific state actors such as the police and military.
Although there is no provision calling for the examination of country reports in the European Convention, the Secretary General of the Council of Europe may request information from a state concerning what measures are being or have been taken to implement the provisions of the European Convention. This may lead to a report. There are reporting requirement under other human rights mechanisms, such as the European Commission against Racism and Intolerance.
The Council of Europe initially adopted both a court and a commission. When the courts jurisdiction became binding on all State Parties in 1998, the commission was abolished. The European Court is considered by most human rights advocates to employ the most stringent enforcement mechanism. Similarly, its decisions have undoubtedly added greatly to the jurisprudence on human rights at both the international and national levels. Nonetheless, the Council of Europe has increasingly recognised a courts limitations and added more suitable human rights mechanisms to deal with specific human rights and the most vulnerable groups of people. As a result, additional human rights mechanisms have been added in specific areas that are more
48
Online: <http://www.cpt.coe.int/EN/about.htm>.
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suited to preventative activities or to addressing systemic or cultural discriminatory practices. Human rights mechanisms need to evolve within the growing understanding and acceptance of human rights and be culturally appropriate to a specific region or group of people. There is no one correct solution. Human rights issues are complex and sophisticated systems and processes are required to adapt to the changing climate and issues.
Lessons Learned from the Existing Regional Human Rights Mechanisms
Each one of the regional human rights mechanisms discussed above has unique features that reflect regional characteristics of a political, social, economic or cultural nature. Whenever a regional human rights mechanism is being established, it must be attentive to the particular characteristics of that region. Nevertheless, some lessons can be drawn from the experiences of these three regional systems when deciding upon the type of mechanism, the coverage and type of rights and obligations, the composition and mandate of the body, the enforcement procedures and the role of national human rights institutions and civil society groups. Accordingly, some generalised recommendations may be derived from the experiences of the existing regional human rights mechanisms.
The Type of Rights and Obligations
One of the threshold decisions that must be made revolves around the type of rights that are to be conferred, the limitations to be imposed upon such rights (if any), and on whom these rights are to be bestowed. The current debate in ASEAN is whether there will be a general human rights body for all the people of ASEAN, or a human rights body that focuses on the rights of women and the rights of children as a first step, or whether there will be both types of human rights bodies. The Vientiane Action Programme focused on the creation of the mechanism for the rights of children and the rights of women, partly due to the fact that all ASEAN countries had ratified the Convention on the Rights of the Child 49 and the Convention on the Elimination of
49
Supra note 32.
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all Forms of Discrimination Against Women. 50 More recently, in the context of discussions during the course of the adoption of the ASEAN Charter, there is a very real prospect of a general human rights mechanism. Indeed article 14 of the ASEAN Charter specifically refers to the creation of a human rights body in conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms.
All of the current systems commenced with a general human rights body that applied to all the people of that geographic region. However, it is important to recognise that all three regions have subsequently established specific bodies to deal with the rights of women, due to a failure of the general human rights body to make any significant progress towards gender equality generally and on the levels of violence against women in particular. There is also an increasing recognition that childrens rights have not received the attention that they deserve.
With respect to the types of rights that will be granted, the divisions of rights are generally between civil and political (the so-called first generation rights) and social, economic and cultural (second generation rights). The African system uniquely recognises development and environmental rights as well, which may have more traction in the future as the world grapples with such pressing environmental issues as climate change. In Europe and the Americas, the justiciable rights are civil and political whereas in Africa the two generations of rights are treated as being indivisible in nature. Furthermore, certain rights within a particular class of rights are given priority over others. Some rights are deemed inviolate regardless of the circumstances (e.g., torture) whereas other rights are derogable in times of national emergency (e.g., rights to freedom of speech and peaceful assembly). Finally, the types of rights may be protective or empowering. Often the rights of women and children in particular are framed in protective language. Although protections from abuse are of fundamental importance, it is equally important that those in the most vulnerable groups, particularly women and children, are able to utilise rights to further their social, economic, political and civil status in society. Certainly in the ASEAN
Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180, 34 UN GAOR Supp. No. 46 at 193, UN Doc. A/34/46, 1249 UNTS 13 (1979).
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region there is an acknowledgement that rights should be indivisible. For example, the minutes of the sixth workshop of the Working Group record that, The Workshop reaffirms the universality, indivisibility, interrelatedness, and interdependence of human rights and emphasizes the principle that the promotion and protection of human rights must go hand in hand with the narrowing of the development gap among the peoples of ASEAN. 51
One other tool to consider when determining which rights warrant protection is to take the precedent set in the jurisdiction given to the African Court. This would allow the human rights body to assist, advise and, if necessary, enforce all international treaties that have been ratified by a member state.
Finally, decisions will have to be made around which obligations, if any, will be imposed on the people of ASEAN. The African Charter is the only one that expressly imposes specific obligations in addition to rights on the people of Africa. The European and Inter-American Conventions do not do so. If obligations are imposed, they are more likely to be aspirational than legal requirements since it is difficult to foresee how they could be effectively enforced.
Type of Mechanism
There are a variety of mechanisms that can be utilised, ranging from a committee of experts dispensing policy advice and recommendations, to a full blown commission with investigative and enforcement powers, to a court with the jurisdiction to hear complaints from states and individuals and to issue rulings that are binding upon the parties. The Americas and Africa both chose to start with regional commissions and subsequently introduced a court with the ability to issue binding rulings where the member states opts to accept their jurisdiction. Europe started with a court and a commission (subsequently dropped) but has also recognised the limitations of this model in the case of specific systematic abuses of human rights in relation to vulnerable groups or populations. A court also has considerable limitations in respect
See summary of proceedings of the sixth workshop at http://www.aseanhrmech.org/conferences/index.html
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of its expertise and evidentiary requirements, which challenge its institutional competence for making broad public policy decisions in the social and economic arena. Accordingly, Europe has added more bodies to review and/or investigate in specific areas where the court has been found inadequate to the task of securing rights. Clearly there is no single correct or ideal model that all regional systems should universally adopt.
Given the cautious way in which ASEAN operates, such as its general requirement for consensus, it is unlikely that a court system would garner sufficient support as a first step in that region. Under the Vientiane Action Programme 52 (VAP), the most likely type of mechanisms to emerge is that of a Commission on the Promotion and Protection of the Rights of Women and Children. Also, as previously discussed, recent indications suggest that there may be both a Regional Human Rights Body and a separate Regional Human Rights Commission dealing with the rights of women and the rights of children.
A final comment on the requirement for ratification by member states of ASEAN is in order. It is clear that some ASEAN countries are more enthusiastic than others to establish a regional human rights mechanism. The human rights body will clearly have more credibility and legitimacy if all the member countries of ASEAN ratify it. However if this is not possible, it would seem prudent to establish the regional human rights body and then allow countries to accede to its jurisdiction when the time is right for a particular member to do so.
Composition of the Commission
Many variations also exist with respect to the composition of the committee. The examination of the existing regional mechanisms illustrates that there must be adequate attention paid to geographical considerations. For example, Europe appoints one judge from each member state. In Africa and the Americas there are fewer members, but with informal systems that ensure that positions are rotated on a geographic basis. Given the manner in which ASEAN operates it is likely that there
52
Supra note 1.
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would be one member for each State that ratifies the regional human rights instrument or mechanism.
All of the existing regional mechanisms have acknowledged the importance of appointing or electing commissioners who are independent from any of the member governments. Independence gives legitimacy, both to the regional mechanism and to the work, authority and recommendations of the Commissions. Legitimacy and authority are also enhanced by appointing persons who are renowned experts in human rights and who are respected for their moral authority and integrity. Other key lessons learned are that most systems allow only one renewal term in order to ensure that there are new people with new ideas and insights, thus invigorating the scope and protection of human rights over the years.
Finally, ASEAN should consider mandating gender parity in the composition of the Regional Human Rights Mechanism that is eventually adopted. Parity would further two important objectives. The first such objective is an affirmation that womens rights and childrens rights are not simply the concern of those two groups. Abuse of the rights of women and the rights of children are a concern for all people. Until this is fully accepted, these rights will not be granted the emphasis that they are due. Parity on the commission will also be an important symbolic representation of this reality. Second, every human rights mechanism, regardless of the specific rights of vulnerable individuals or groups who are being protected and empowered, should have courts and/or commissions that mirror gender parity in recognition of the equality sought across our world.
Mandate of Human Rights Body
Regional human rights bodies often have broad mandates. They are usually created to promote and assist a regional policy promoting social, political, economic and/or cultural objectives. In particular, they are created to assist a specific region to introduce, implement and have the capacity to implement international human rights obligations which most, if not all, countries in the region have undertaken to do by reason of ratifying one or more international human rights treaties. As such, an - 101 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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important role of any regional human rights mechanism is to promote, through education and training, a culture of human rights throughout that region. The education and training could be general, to alert citizens to their rights and how to vindicate them. It could also assist specific groups and human rights NGOs directly to build human rights capacity throughout the region. Government officials may also benefit from increased capacity in understanding how to implement human rights obligations. There would also be great value if a specific mandate were conferred to develop materials to educate and train certain pivotal state actors, who usually work on the front lines of human rights abuses: for example, the military, the police and corrections staff in both adult and juvenile detention centres.
Frequently the commission will be tasked to act as an advisor to member states and to make recommendations concerning the policies, practices and laws needed to implement the specified human rights. Monitoring member states progress in compliance with the instrument is another important function. Requiring member states to report may be duplicative of other systems both nationally and internationally, especially in the United Nations system. Smaller states in particular may be overburdened by meeting reporting requirements. Accordingly, it may be best that the regional human rights body be given reports prepared in areas that are covered by its mandate at the same time as they are submitted to the United Nations body. The commission could then choose to render its observations before or after the respective United Nations human rights committee or council has commented.
In view of the historical development of the regional mechanisms in Africa and the Americas, it is unlikely that individuals will be given direct access to communicate an infringement of her or his rights, at least initially. If this is the case in the ASEAN mechanism as well, the commission should have the power to investigate and report upon widespread abuses or systematic forms of discrimination against human rights generally and/or the specific rights of women and the rights of children in particular. The commissioners should also have the ability to undertake thematic investigations and generate related reports. As part of this power, the commission could investigate areas of overlapping concern in the region, such as human trafficking, migrant workers, internally displaced persons and/or issues of citizenship. Instituting a system - 102 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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of rapporteurs would also be of assistance in supporting these, and potentially other, mandates.
Enforcement and the Role of Political Institutions
Regional human rights mechanisms do not have inherent enforcement measures or bodies to ensure that their decisions, reports or recommendations are implemented by the respondent state. It is the political organs that must execute decisions or recommendations generated by the human rights mechanisms. Although independent institutions, each regional human rights mechanism relies heavily on political institutions and political actors to ensure that their decisions, reports and recommendations are implemented. This is most clearly illustrated by the specific mandate of the Committee of Ministers in Europe and of the Executive Council of the African Union. Their role is specifically to monitor performance and to ensure that the respondent state implements the outcome dictated by the courts or commission. Without this body, the decisions may not be implemented or implemented fully. International human rights mechanisms rely heavily upon the political institutions and actors to apply pressure, through diplomatic and other means, upon an erring state that is delinquent in, or simply delays fulfilling its obligations and/or implementing the findings and recommendations of the human rights body.
The human rights body must also have the authority, backed by ASEAN, to take precautionary measures to prevent or curtail a serious abuse of human rights in one, or more, states.
The Role of Human Rights National Institutions
The creation of regional mechanisms does not obviate the need for national human rights institutions. Indeed, the two are complementary. Human rights are still best vindicated at the national level and, accordingly, all regional human rights mechanisms require that domestic remedies be exhausted (subject to exceptional circumstances) prior to submitting a complaint to the regional mechanism. International and Regional Human Rights obligations are best implemented at the - 103 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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local level. National institutions must take a lead role in ensuring that international treaties and obligations undertaken by states are met. However, regional mechanisms also have a role to play in capacity building, educational and training programs and networking with and amongst the national institutions in the region. Regional human rights mechanisms will also assist in the creation of national human rights mechanism where none currently exist.
The regional mechanism adopted by ASEAN should also explore and promote best practices for ensuring easy access with creative and culturally appropriate dispute resolution mechanisms appropriate to the ASEAN region. A particular focus should be placed on the most marginalized and vulnerable of women and children in the region.
The Role of Civil Society
There are different levels of involvement by civil society in the three regional mechanisms. The African system has been the most active in reaching out to civil society in generating reports, receiving complaints and assessments and in allowing participation in their own deliberations and monitoring. Indeed, the utilisation of this expertise and knowledge has been crucial to the Commission in enhancing the knowledge of individual countries and in increasing the Commissions legitimacy. NGOs may also be of great assistance in educating, capacity-building and promoting human rights throughout the region. The European system has less need for the assistance of European NGOs (except those organisations specifically designated to do so under the Social and Economic Charter) as it is the best resourced, with qualified staff able to carry out some of these activities. However the Council of Europe recognises the importance of civil society who are involved in all aspects of planning and policy decision-making. Nonetheless, all regional mechanisms should attempt to include civil society as much as possible in order to promote a vibrant and healthy culture of human rights.
One way ASEAN might ensure continuing dialogue between the Commission and civil society would be to mandate and finance the Commission to hold an annual - 104 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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consultation with NGOs working in the field on specific areas of concentration for women and another similarly constructed forum for children. These consultations and workshops could assist in building and elaborating the annual work plan for the commission. Member states should also be given the opportunity to request that an investigatory or thematic report be undertaken by the commission.
Financial and Staffing Resources
As with all organizations, the extent and quality of the work undertaken and delivered is heavily dependent upon the resources allocated to it. Adequate funding is not a sufficient condition to ensure quality work, but it is a necessary one. Additionally, it is important to develop a funding formula which allows for independence of action, rather than fear that unpopular reports or activities could result in budget reductions.
Conclusion
As the above analysis illustrates, there are a number of influences and discrete decisions that combine to create appropriate human rights mechanisms for specific regions.
Some have suggested that the regional mechanism that ASEAN will develop is a women and childrens commission because it is seen as a soft option. This view does a disservice to the very important rights that women and children have been granted at the international level and fails to take into account the terrible abuses that both groups still suffer. Human rights advocates, NGOs and ASEAN itself should seize on the fact that women and children are the two most vulnerable of the three main groups in our society. There are also sub-groups that are more marginalised and vulnerable than others and who should be given priority attention.
While ASEAN is still working on the most appropriate ASEAN Human Rights Body to comply with the commitments in the ASEAN Charter, ASEAN should herald the fact that they could implement both a Commission on Women and Children and a Universal Human Rights Commission. Introducing a regional human rights system - 105 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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that concentrates on two of the world's most vulnerable groups, women and children in addition to a Universal Human Rights Commission would be ground breaking. This is not duplicative; rather, it is recognition that a universal human rights systems will not by itself adequately address the rights of women and the rights of children. This is illustrated by the fact that the three current regional systems have all had to set up specific additional bodies to address these rights. Accordingly, it is fitting that ASEAN is focussing on both types of human rights mechanisms: A Commission on Women and Children and a Universal Human Rights Commission.
There is great anticipation in South East Asia around the advent of the first regional human rights mechanisms in the region. There will be some disappointment if the model chosen is not the strongest one. There is a saying by Voltaire, loosely translated into English to the effect that the perfect is the enemy of the good. In this context, it means that, although progress has been slow, if human rights mechanisms are created it will represent progress. All the existing regional systems have developed over a period of many years. This will presumably be the path in South East Asia as well.
CHAPTER V Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children : Conclusions and Recommendations
Experience learned from other regions and the analysis on the existing legislative measures, policies and national machineries in ASEAN has demonstrated that ASEAN is poised to implement its commitments to establish both a regional human rights body and a specialized agency on the promotion and protection of the rights of women and children. There are, of course, pending conceptual and practical questions for concerned ASEAN leaders and ASEAN agencies, which require clarification ranging from justifying the value of having a regional human rights mechanisms and/or specialized agency, the types of mechanisms, powers and mandates it would involve, the funding of such mechanism, the role of civil society, and what the next steps are to be taken in order to move towards the establishment of such ASEAN Commissions. This last chapter attempts to deal with those challenges and come up with concrete recommendations.
The Value of Regional Human Rights Mechanisms
Some key figures in this debate, including senior ASEAN government officials, have questioned the value of regional human rights mechanisms. Their argument is that there are already a number of human rights mechanisms at the United Nations concerning both universal human rights and human rights of specific vulnerable groups (including women and children); therefore, they question the utility of a regional mechanism in this context. In addition, four ASEAN countries have national human rights commissions and/or courts to deal with the promotion and the protection of human rights at the domestic level.
There is considerable merit to these concerns, particularly in light of the additional staff and resources that would be required by the mostly less affluent states of the region in order to prepare the country reports called for pursuant to the regional human rights mechanism or to respond to the complaints that would be lodged with it.
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There are also the typical concerns over state sovereignty. Despite the legitimacy of these concerns, they should not overshadow the real benefits derived from the establishment of any appropriate regional human rights mechanisms.
Regional human rights mechanisms have played a crucial role in assisting regions to create a culture of respect for the human rights for their people and specifically for the vulnerable groups in their population. This unique role cannot be accomplished by national human rights institutions or international human rights institutions. A regional mechanism occupies a niche that cannot be filled out at the national level for a number of reasons. National human rights institutions, although crucial for individual nations, may have too narrow a mandate to investigate broad-ranging human rights abuses and infringements. Human rights education or investigations are viewed through a national lens only, and may or may not take into account how different remedies or recommendations may affect a bordering country. This is particularly true for cross-border and multi-country issues, such as human trafficking, migrant workers or terrorism. Consequently, the expertise of the various national commissions will be firmly focused on their nation state and will not be infused with a greater appreciation of the nuances and expertise required to understand the other countries in the region. Furthermore, national human rights institutions may be subject to the whims of a particular ruler or political party at any given time. Political elites would then be in a position to determine the agenda for the protection and promotion (or lack thereof), for human rights in that country.
A regional mechanism is ideally placed to understand the unique tensions and conflicts in the region and to best grasp the nature of the human rights infringements there. It can also effectively place recommendations within the appropriate economic, social, political and cultural context of the country or countries located within a particular geographic region. The creation of a regional mechanism will, therefore, be beneficial to national institutions. Regional mechanisms can be counted on to provide technical, and moral, support to national institutions. Joint training sessions throughout the region will enhance the "networking" of the national institutions and lead to the sharing of common concerns and opportunities.
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Regional mechanisms also play a useful role in creating the momentum for national human rights institutions to be established where none currently exist. The resulting benefits flow both ways: national human rights institutions assist in informing regional commissioners of the unique issues and concerns within one country and in building country expertise. National and regional institutions interrelate in a mutually reinforcing manner to assist in promoting and empowering nation states and their populations in creating a human rights culture.
International Universal systems, like the human rights mechanisms within the United Nations system, are often too broad and diverse in their concern and scope, for example to understand or effectively address regional nuances in language, culture, institutions, and ethnicity. Accordingly, the expertise of the United Nations Human Rights Council and Committee members may be spread too thinly to address in a coherent and cogent way the challenges and conditions that exist in a particular region of the world. Regional mechanisms are better placed to provide assistance to States in a particular region to meet their international human rights obligations through technical assistance, advice and training of crucial state actors on the forefront of human rights concerns, such as military, police and corrections officials.
Countries located within the same geographic region commonly share several geographic, cultural and social characteristics. Moreover, they often have specific concerns that are unique to, or much more prevalent, in that region. In Latin America, for example, there have been many cases of disappearances and widespread human rights violations against a prevailing backdrop of political instability. Africa is a region that has been beset by inter-country and civil wars on a regular and reoccurring basis. In Europe, there is a history of colonization combined with the trauma of the widespread human rights abuses and genocide of the Second World War. These are some, but clearly not all, of the shared historical, political, economic, cultural or conflict patterns of these regions. Shared traits allow countries within each particular region to more comprehensively understand the issues of another country within the same region; geographic proximity usually means that there is much more knowledge of one's neighbours than of countries located on the other side of the world. There will also usually be more linkages through trade and culture due to close proximity. - 109 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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Increased familiarity with ones neighbour will ordinarily lead to a more in-depth understanding of the issues, both past and present, facing that neighbour.
Countries in the region often share similar concerns for certain types of human rights and have a common sensitivity for the most appropriate way to inculcate a culture of human rights around that region. A regional mechanism enables neighbouring
countries to provide support and assistance to each other in an effort to meet their obligations to citizens within the region. Moreover, it provides an institution that will ordinarily be more attuned to the needs of the region. Most importantly, a regional mechanism allows and empowers ASEAN people to assert their human rights within the context of their unique social, economic and cultural preferences.
Finally, a regional human rights mechanism will further self-determination of the region since it would typically utilize reports derived from that region rather than relying upon external commentaries pertaining to the human rights situation in a specific country or in the region itself. For example, at a meeting of senior officials, The Honorable Franklin M. Ebdalin, Acting Secretary of Foreign Affairs and Undersecretary for Administration of the Department of Foreign Affairs, Philippines, stated that: The establishment of a regional human rights mechanism is an important component in the course of building an ASEAN Community and is most pertinent at this time when ASEAN is in the process of drafting a legally binding Charter. 1
The creation of a regional mechanism will increase the visibility and credibility of ASEAN in the international community. ASEAN would be recognized for proactively creating a culture of human rights in the region. The people of ASEAN would also recognise more clearly the benefits that flow to them with ASEAN membership. As the regional mechanism creates a culture of human rights, this may ultimately make an important contribution to peace and security in South East Asia.
Summary of Proceedings, Sixth Workshop on the ASEAN Regional Mechanism on Human Rights, Manila, Philippines, 16-17th July 2007, note 4,p.1, online: Working Group for an ASEAN Human Rights Mechanism http://www.aseanhrmech.org/downloads/6th%20WS%20Summary%20of%20Proceedings.Session.pdf.
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There are also certain logistical advantages to regional human rights mechanisms. These include less cumbersome geographic access and the ability to design culturallyappropriate procedures that better take into account the legal, linguistic and other cultural practices in the region. Since the commissioners will be people resident in the region, they are bound to have a more sophisticated knowledge of, and familiarity with, the social, economic, political and cultural characteristics of the region in question. Moreover, the commissions will have specialised local knowledge of the most pressing human rights issues in the region, especially those that are overlapping or common to one more than one country in the region, such as those affecting migrant workers, human trafficking and ethnic minorities and indigenous peoples. Finally, the decisions or recommendations of the commission may be more culturally appropriate and therefore more likely to achieve greater acceptance from the Member States to which they are directed. For this reason, in particular, such decisions may be easier to implement and compliance may be more readily monitored. It may be easier for States to take advice from neighbouring States than from countries on the other side of the world who may not fully comprehend the enormous challenges that many countries face, especially in the developing world.
What is the added value of an ASEAN Commission on the promotion and protection of women and children ?
While the value of a regional human rights mechanism, pointed out by Prof.Maureen Maloney, is clearly advantageous, there remains the question of whether another specialised body for women and children is necessary. It is true that ASEAN has already mandated through the Vientiane Action Programme to establish an ASEAN Commission on the protection and promotion of the rights of women and children. But, what is the value-added of having such mechanism amidst the existence of multinational and national mechanisms as detailed in the first four chapters. On this question Professor Vitit Muntarbhorn, a law professor and former UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography stressed that the value-added of an ASEAN commission on the rights of women and
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children is that it will nurture regional responses to issues pertaining to the rights of women and children and lift the standard of states behaviors in these areas. 2
How will an ASEAN Commission on Women and Children add value:
1. For a country that does not have an existing human rights mechanism, the proposed commission is clearly valuable. Considering that human rights are interrelated, the commission on the rights of women and children could serve as a pragmatic entry point to address human rights concerns.
2. The establishment of a commission could be used to strengthen ASEANs commitment to and pro-active implementation of the rights of women and children enshrined by CEDAW and CRC. The way in which the international human rights treaties address issues relating to children and women depends on the approach(es) adopted at the national level, and the same is also true of regional legal and institutional measures.
3. The results of the research analysis reveals that there were clearly certain areas of concern that are shared by ASEAN member countries. Some of these, like trafficking, migrant workers and migration, are transnational in nature, and national efforts to address the issues may not be sufficient or effective. A regional institution could assist in designing and applying appropriate transnational measures.
4. Based on the country reports, all governments in ASEAN have faced difficulties in complying with international human rights standards, and a regional mechanism may be able to assist them in terms of education and other technical needs. The Commission could help to bridge the gap between the national and international standard levels. Although both the Member States and the CEDAW/CRC committee members are already engaging particular issues in specific countries, there has been difficulties in meeting the reporting obligation, which the Commission could help address.
2
Vitit Muntarbhorn, presentation made in the Regional Expert Meeting organized by the OHRSD, Mahidol University , on 20 November, 2006, at Pathumwan Princess Hotel, Bangkok.
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5. The creation of a specialized Commission is a clear indicator of the political will and concrete commitment of the regional leaders of ASEAN to show the importance of the promotion and protection of the rights of women and children within the ASEAN region. . 6. In all countries, women and children are particularly vulnerable, and very often, their views are rarely taken into consideration. Both groups also encounter a range of problems when seeking remedies for violations. Moreover, they have limited access to institutions which are mandated to protect human rights. Establishing a specialized regional entity would provide better accessibility for recourse for these two particularly vulnerable groups.
7. Women and children have always been considered vulnerable groups. Although this image is rather general and may not always reflect the reality in a number of cases, it is recognized that both groups do have special needs which require special measures and mechanisms to address. The general regional human rights mechanism, even with the comprehensive coverage does not, in many instances, succeed to respond to the particular needs of children and women as the review of the existing regional mechanisms clearly demonstrates. A specialized mechanism such as the Commission on the protection and promotion of the rights of women and children can play a role in filling gaps which cannot be tackled by a general human rights mechanism, and in doing so, aid in empowering women and children. This is particularly important in a region where women and children tend to be disempowered
In order for the Commission to add value to existing machineries, the key function of the proposed commission will not just be in creating programs or cooperation, but in putting a legal framework in place. There needs to be an enabling environment for this rights-based approach, while also providing opportunities. By establishing a legal framework, the proposed commission will be able to make a difference without replicating the work of existing institution.
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Recommendations
The general issues that encompass the institutional design of a regional human rights mechanism includes its mandate, legal status, functions and powers. The establishment of any human rights mechanism should be based on the Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (Paris Principles) with the emphasis on: its independence from the government, its pluralistic composition and representativeness, having broad mandates with adequate powers, and sufficient resources and accessibility. The mandate of a commission should be derived from legislation and include a wide spectrum of functions and generic obligations to respect, protect and fulfill prescribed rights. It should have a mandate of assessing the human rights situation in the region and, where appropriate, adjudicating as well as enforcing human rights laws. In order to effectively perform its functions a mechanism should have powers to educate, recommend, mediate, adjudicate, enforce, and even censure and provide remedies. For a regional human rights mechanism to be effective it should also 3; Be conferred with official status recognized by states parties of ASEAN. This requires legislation which clearly defines its powers; Display high standards of competence and performance; Be impartial and independent. Both impartiality and independence should be ensured by appointment procedures, financial guarantees and sufficient staff to perform its functions; Be accountable to states parties to ASEAN, ASEAN itself and its stakeholders; Be approachable and open. Every sector should have the right to approach the institution in both informal and formal manners. It should be a friendly institution not another regional bureaucracy; Have broad powers of both promotion and protection activities; Not work on the assumption that its actions are necessarily in the best interests of the target groups. Women and children must be able to participate actively throughout the process so their views and concerns are heard;
Points appeared above were adapted from Eugeen Verhellen, Ibid, pp.101-105.
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Be realistic in the sense that any recommendations or solutions should be attainable.
It is essential that the proposed ASEAN commission on women and children not be of a lower standard than existing international mechanisms if it is to have legitimacy. The CEDAW and the CRC should be used as a common minimum legal standards for ASEAN as these are the minimum standards which all ASEAN members have ratified.
Based on the documentary reviews and two regional consultations, as well as through the collection of views of experts and ASEAN officials, the study team currently recommends the following;
Proposals for the Founding Document Establishing the Commission
The ASEAN Commission shall be an inter-governmental and independent body with an established legal status. The creation of the commission on women and children will be covered by a legal document. An intergovernmental agreement or a Convention should be drafted. This draft will lay the ground for the establishment of this regional mechanism for the rights of women and children. The process and contents could be as follows: The drafting process of the convention could follow the modality of the ASEAN Charter in that an EPG or expert group should be convened that is composed of representatives from each ASEAN country and from civil society. Alternatively, a HLTF could be set up to draft the instrument, with representation of members appointed by their respective government, experts on human rights of women and children, and civil society. The drafting process of this convention should be inclusive. Different actors/ groups could take on different roles, e.g. providing policy suggestions, raising awareness of the document among their stakeholders, conducting
consultations at different levels.
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The document should have the following key elements: the preamble, definitions, standards, institutions, mechanisms, obligations, procedures, amendment, process of ratification, entry into force, etc.
All countries must agree to the instrument but each country may decide when the instrument takes effect through ratification, in so far as that specific country is concerned.
The instrument should contain separate sections dealing with womens rights and childrens rights and with the common provision on the establishment of the Commission, with equal number of Commissioners dealing with issues pertaining to women and children.
The draft instrument should be ready by 2008 and it should take effect by 2009 at the latest. The proposed convention should then be submitted to the ASEAN Secretariat for appropriate action that would lead to the adoption of this document by ASEAN leaders.
Types of rights to be covered
The rights of women and children to be covered in this regional document at a minimum meet, and if possible exceed, the international standards set out in the CEDAW and the CRC. Although the two documents could serve as a basis, different rights stipulated in generally accepted human rights instruments could also be included. Direct references could be made to CEDAW and the CRC without having to elaborate the core provisions of the two conventions. The framework on social welfare and development of 2006, agreements on trafficking in persons, and the ILO conventions that ASEAN countries have signed, and all other relevant agreements and frameworks, should also be considered. It would also be useful to examine other ASEAN documents that might have any bearing on the rights of women and children, and in particular to look at other human rights treaties that have been signed by ASEAN countries.
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Proposed Structure and Functions of the Commission
The Commission should have the following structure:. There will be one (1) representative per ASEAN member country who has ratified the agreement appointed by its respective government. The Commissioners will be independent experts in the human rights of women and/or children. The commissioners should be nominated by each member state following an internal selection process at the national level. The principle of transparency, inclusiveness and civil societys participation should be reflected and practiced throughout the selection process. There will be a Chair of the Commission who will have a non-renewable term of three (3) years. The first set of Commissioners will have a staggered term of six (6) years. The succeeding Commissions will have a term of three (3) years, renewable for a maximum period of two (2) terms. The Commissioners, or at least the Chair, should work full-time. The total number of Commissioners should be an odd number. In order to achieve this, the ASEAN Secretariat may have a representative as an exofficio member of the Commission, and Timor Leste may be provided with a special observer status with the understanding that ex-officio members and always observers do not have a vote. The Commission will make decisions by consensus. The Commission will likewise identify non-substantive matters or issues that may be decided by non-consensual voting The Commission should be gender balanced, with 50 percent of the commissioners being women and 50 percent being men. With respect to qualifications of the commissioners, the types of qualifications used by other regional and international mechanisms should be utilized. Qualifications should include, for example, high moral character, independence and expertise in human rights. The guiding qualifications of the commissioners should include: knowledge of human rights and international humanitarian law, and knowledge of ASEAN processes. - 117 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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The Commission should include separate entities - one dealing with womens rights and another with childrens rights and have an equal number of Commissioners dealing with each issue.
To ensure the independence of the Commission, the Commission should be given security of tenure and competitive salaries that are not sourced from specific governments but from general ASEAN resources. The Commission should also be supported with highly competent staff who also have security of tenure
The Commissioners will be citizens of ASEAN member countries The Commissioners will have the same diplomatic immunities and privileges that have been granted by ASEAN to ASEAN diplomats. The Commission will, for administrative purposes, form part of the ASEAN structure but not be part of the ASEAN secretariat. One unit within the ASEAN Secretariat should be created to provide administrative support to the Commission, including the handling of documentation and provision of language support.
The Commission may be based in a country different from the base of ASEAN secretariat. English should be the official language of the Commission. However, there should be provisions for language support and translation of documents into Southeast Asian languages.
In situations which call for on-site or country visits, for example, where there are allegations of gross and widespread violation of rights, the Commission may appoint rapportuers to investigate with the consent of the specified country.
Proposed mandates and functioning procedures of the Commission
Based on ideas proposed by Prof. Vitit Muntarbhorn, the 5 As formula should be reiterated here for the mandate of the Commission. The 5 As are: Assess/review the human rights situation ("monitor"); Access those affected vulnerable groups;
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Advise on needed actions to prevent and remedy situations, and to protect rights; Act where national remedies have been exhausted and where states have agreed to become party to the ASEAN commission (ASEAN minus X formula); and
Advocate/cooperate with key partners/stakeholders to protect those affected vulnerable groups.
Another A could be added here, Accountability of the Commission to both state members and people.
As a minimum, the mandates of the proposed Commission on Women and Children will be both promotional and protective. The promotional mandate will cover the conduct of activities that directly contribute to the empowerment of women and children through awareness-raising, skills-training, capacity-building, consultations, dialogues, research studies, case studies, sharing of best practices etc. The protective mandate is, at the very beginning, to be limited to an advisory or recommendatory function only. It is nevertheless open to the Commission to study situations of widespread and gross violation of womens and childrens rights in the region, and request the submission of reports/explanations from relevant countries and issue (nonbinding) recommendations. However it is recommended that:
In terms of access to the Commission, at the initial phase, only states should be allowed to file complaints. However, there should be an enabling provision in the convention that would provide flexibility to allow for the filing of individual complaints, in particular from countries where national human rights institutions do not exist. It is noted, nevertheless, that it may be premature at this point to allow for individual complaints. Individual complaint procedures might be acceptable at some point in the future.
The procedures for filing complaints with the Commission should follow the principle of the exhaustion of domestic processes and remedies.
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The mandate of the Commission should entail active coordination with existing international and national mechanisms in order to complement the functions of these existing mechanisms.
Regarding the obligations of states to the Commission, it was generally agreed that states should not be required to submit periodic reports to the Commission. While periodic reports by member states are not required, the Commission should initiate the conduct of thematic reports on specific issues, or regional summary or outlook reports.
Though the Commission will not require reports similar to those requested from the State parties by the UN bodies, reports may be requested in situations where there is a finding of gross and widespread violation of rights of women and children.
The Commission should establish a rapporteurship system on a thematic basis. The Commission should be mandated to conduct on-site visits that are not subject to state restrictions in a specific country or countries.
The Commission will be able to issue advisory opinions in cases of gross and widespread violation of rights of women and children. In line with the protective mandate, the Commission will have the power to issue (nonbinding) recommendations.
Civil society could provide consultative functions in the functioning of the Commission. It is proposed that the term consultative partner be used for accredited civil society organizations. Space should also be available to nonorganized individuals to participate in the functioning of the Commission. Accredited civil society organizations should have access to financial support from the Commission in carrying out related projects.
Education and training should be identified as an integral part or function (perhaps even the ability to mandate it of certain sectors, for example, senior governmental policy makers, military, police or corrections officials).
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Important issues to be taken into consideration The Commission should not exist and function as a supra-national authority. It would only issue advisory opinions that are recommendatory in nature, with the bearing of a moral sanction. The implementation of the recommendations depends on the voluntary actions of the member states. Since these powers are closely related to investigatory and adjudicatory functions that the Commission might not have, the Commission can only issue non-legally binding measures. The mandate of the Commission should follow existing guiding principles of ASEAN, namely, respect for state sovereignty, non-interference in internal affairs and consensus-making. However this should not hinder the effective functioning of the Commission. One of the working principles in ASEAN is cooperation not confrontation. Any institution to be established should not challenge the government. It should not, however, be used by the governments as window dressing to improve their image on human rights without corresponding action.
Funding
The Commission will be mainly financed through the contribution of ASEAN members; however, it should also be allowed to accept external funding support. The issue of funding is considered by and large in relation to the issue of independence of the Commission. The Commission, and its staff, should be adequately funded by ASEAN. The Convention should provide enabling provisions supporting the
allotment of funds for the Commission through the creation of a special fund. External and voluntary contributions from ASEAN member states would be allowed as long as they come from multilateral sources and allow for flexible modalities. Receipt of external funding support will be bound by guidelines to be enacted. These sources of fund should be channelled through and managed by the ASEAN Secretariat. Funding from external sources or voluntary governmental contributions
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may be accepted on the condition that this would not compromise the independence and integrity of the Commission.
Civil society participation
The issue of civil society participation has been raised throughout the research process. Participation is anticipated both during the stage of the establishment of the Commission and during the functioning of the Commission once it has been established. The Commission should at least have the commitment, provided for in its instrument, that it should consult or work in partnership with civil society. A system that gives the status of consultative partner to accredited civil society organizations should be considered.
It is further recommended that there is active involvement of women and childrens rights groups, and women and children themselves. There should be ongoing efforts to engage as many groups as possible in the process. Sectoral groups have very important roles to play in ensuring that the commissioners continue to carry out their tasks.
Final Thoughts
There are some basic principles to be kept in mind while developing an ASEAN commission on the protection and promotion of women and children. These basic principles are proposed by Prof. Vitit Muntarbhorn as follows: Be a "mechanism" a means to an end; "Informed" by international standards, while capitalizing upon the wisdom of the ASEAN region; Be non-discriminatory: covering both nationals and non-nationals; Uphold the universality, indivisibility and interdependence of human rights; and Uphold all rights (and obligations) consistent with international law;
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There are also a number of elements which should be taken into consideration: a) The establishment of a regional human rights mechanism in Asia has been a long-standing concern of the United Nations as this region is the only one in the world without such a mechanism. It is also important to stress the importance of having a regional human rights mechanism in order to hold human rights violators accountable for their acts at regional levels especially when there is no adequate domestic remedy. b) At the moment, the idea of an ASEAN mechanism for the rights of women and children is viewed as an entry point to engage ASEAN in human rights promotion and protection. However, it has been always clear that advocating for the establishment of a specialized Commission is a step towards the ultimate goal of the establishment of an appropriate ASEAN human rights mechanism with broad mandates. The present arrangement is not, therefore, an end in itself but rather a step in the process of moving forward. c) There is a general understanding within ASEAN that human rights are still a sensitive topic in ASEAN. It is noted, however, that the ASEAN governments have seemed comfortable with the issues of the rights of women and children because they are considered soft issues. Although subject to debate, there is at least a consensus that the issues may not be politically threatening to ASEAN and its Governments, but this depends, however, on what type of ASEAN Commission is created. A Commission with an investigative mandate and legally binding decisions, and/or the practice of naming and shaming might not be acceptable to ASEAN. Options are open as to whether the Commission would be merely a promotional mechanism, or a protective entity or some sort of hybrid body. This remains to be seen. Although it seems that ASEAN might be more comfortable with an entity which only focuses on promotional activities, such as awareness raising, reporting and human rights education, the intended Commission should have both promotional and protection mandates as already provided by the VAP. d) Although the issue of the rights of women and children is not generally perceived as a sensitive topic, not all ASEAN members may be ready to abide by a regional human rights arrangement, therefore it is recommended that ASEAN adopt an ASEAN minus X formula whereby some countries will be - 123 OHRSD, Mahidol University and Working Group for an ASEAN Human Rights Mechanism
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encouraged to join upon readiness. Accordingly, there should be an appropriate timeframe with stated qualifying conditions set out for countries who do not agree to join at the outset. e) Even though human rights language is not explicitly used by ASEAN, there are already policies, programs and institutions relating to the promotion and protection of the rights of women and children in existence in ASEAN. We are of the opinion that ASEAN does not need to re-invent the wheel but instead should build on existing organizations. The issue is how to harmonize with and capitalize on what has already been put in place within the organizational structure. f) It is interesting to see that the question of creating either one ASEAN Commission or two commissions - one on women and another on children has been raised in most, if not all, meetings. Given that the issues concerning rights of women and children as well as the nature and complexities of these rights are by far different, it is possible that there could be two separate institutions. There is, of course, no clear answer as to which option would be preferable. What is clear is that so far ASEAN has only committed to a combined ASEAN Commission on the promotion and protection of rights of women and children. g) There is a real need for ASEAN to engage civil society from different groups in the process of the establishment of an ASEAN Commission. Engagements range from the identification of issues and concerns on through the process of selecting commissioners or members of the Commission. It is suggested that dialogues and means of communications be established between ASEAN governments and civil society as well as among different groups. These groups should include women and children themselves. In so doing, it will help in enlarging constituencies within the region. h) In addition to different legal norms existing in ASEAN countries, sociocultural diversities as well as political and economic gaps exist in the Southeast Asian region. As such, the contextual particularities should be taken into consideration throughout the process of establishing a regional mechanism. Concrete measures and programs should be formulated in order to
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ease the process and bridge the existing gaps. Sharing national experiences and best practices and mutual learning is highly recommended. i) The establishment of any human rights mechanisms is in itself a development process. A perfect institution cannot be established overnight especially when different political, economic, social and cultural contexts are to be taken into account. j) The regional institution should not only link with existing national machineries but also promote the creation of national human rights institutions to deal specifically with women and childrens rights. k) The promotion of easy and inexpensive access to ways of resolving human rights disputes (for example, the creation of innovative dispute resolution mechanisms) will be necessary.
The current environment is already conducive to establishing such a commission. There are also a number of national laws dealing with the issues and concerns of women and children. Rather than spending effort to harmonize the laws, the focus should be on making national laws compliant with State obligations under international human rights instruments, like CEDAW and the CRC. It has already taken ASEAN a long time to put priority on the advancement of women and the elimination of discrimination against women, the well-being and the protection as well as development of children. It is now time for ASEAN leaders to transform the many existing policy documents and statements into a legally binding instrument with a monitoring body.
As we draw closer to the end of the Vientiane Action Programme, it is now necessary to accelerate the process of creating a Commission. The Commission should be seen as both an end in itself as well as a means to something greater. The rights of women and children have been left behind in all areas of the world, including ASEAN. The proposed Commission has the potential of being the most powerful body that will focus specifically on the concerns of women and children. The question remains of whether we want a process based on incremental steps or whether we want to try to achieve the maximum desired. To reiterate what Voltaire said centuries ago the
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perfect is the enemy of the good. It might be more helpful to take meaningful steps right now while the time is ripe, than aim for perfection.
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Initial reports of States parties due in 1994, Cambodia, (CRC/C/11/Add.16), 24 June 1998. Initial reports of States parties due in 1997 Malaysia, (CRC/C/MYS/1), 22 December 2006. Initial reports of States parties due in 1997, Singapore., (CRC/C/51/Add.8), 17 March 2003. Initial Reports of States Parties due in 1998, Brunei Darussalam, (CRC/C/61/Add.5), 13 March 2003. Initial reports of States parties due in 1998, Myanmar, (CRC/C/70/Add.21), 5 November 2003. Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Convention of Belm do Par, signed June 9 1994, 33 I.L.M. 1534, entered into force March 5, 1995.This Convention was preceded by the United Nations Declaration on the Elimination of Violence Against Women (1993). International Bureau for Childrens Rights, Making Childrens Rights Work : Country profiles on Cambodia, Indonesia, Sri Lanka, Timor Leste, and Viet Nam, Canada, 2006. OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador, 28 I.L.M. 156 (1989), signed Nov. 16, 1988, entered into force Nov. 16, 1999, reprinted in Basic Documents, supra note 7, Art. 16. OAS, Inter-American Commission on Human Rights, Access to Justice for Women Victims of Violence In the Americas, OR OEA/Ser. L/V/II. Doc. 68 (2007). OAS, Inter-American Commission on Human Rights, Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, OR OEA Ser. L/V/II.100 Doc.17 (2007). Periodic reports of States parties due in 1997, Viet Nam, CRC/C/65/Add.20, 5 July 2002. Protocol No.7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 22 1984, CETS No.117, entered into force Nov. 1 1988. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, May 5 1994, CETS No.155, entered into force Nov. 1 1998.
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Protocol No.12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4 2000, CETS No.177, entered into force April 1 2005. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights, 9 June 1998, OAU Doc OAU/LEG/EXP/AFCHPR/PROT (III), entered into force Jan. 25, 2004. Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Union, Maputo, CAB/LEG/66.6 (Sept. 13. 2000), 1 Afr. Hum. Rts. L. J. 40 (2001), entered into force Nov.25, 2005. Resolution on the Designation of the Special Rapporteur on the Rights of Women in Africa, ACHPR /Res.38(XXV)99, [online] http://www.achpr.org/english/resolutions/resolution43_en.html. Rhona K. M. Smith, Textbook on International Human Rights, Oxford University Press, 2003. Rules of Procedure of the Inter-American Commission on Human Rights, OAS InterAm. C.H.R.,109th Special Session (2001), reprinted in Basic Documents. Second periodic reports of States parties due in 1997, Indonesia, CRC/C/65/Add.23, 7 July 2003. Second periodic reports of States parties due in 1997, Philippines, CRC/C/65/Add.31, 5 November 2004. Second periodic reports of States parties, Myanmar, CRC/C/70/Add.21, 5 November 2003. Statute of the Council of Europe, Aug. 3 1949, CETS No.001, entered into force Aug. 3 1949. Statute of the Inter-American Commission on Human Rights, OAS General Assembly, Res. 447 9th Sess. (1979), OR OEA/Ser.P/IX.0.2/80, Vol. 1 at 88, reprinted in Basic Documents. Summary of Proceedings, the Sixth Workshop on the ASEAN Regional Mechanism on Human Rights, Manila, Philippines, 16-17th July 2007, [online] Working Group for an ASEAN Human Rights Mechanism, http://www.aseanhrmech.org/conferences/index.html. Sunsanee Sutthisunsanee, Response of ASEAN to Human Rights Violations in Southeast Asia : Case Studies of Cambodia and East Timor, MA.Thesis in Human Rights, Mahidol University, 2006.
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The Constitutive Act of the African Union, adopted 11 July 2000, OAU Doc. CAB/LEG/23.15 (2001), entered into force 26 May 2001Article 4(l). The Human Trafficking.org Project, Academy for Educational Development, Burma, http://www.humantrafficking.org/countries/burma, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Cambodia, [online] http://www.humantrafficking.org/uploads/publications/Coordination_Structure _-_Diagram1.pdf, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Indonesia, [online] http://www.humantrafficking.org/countries/indonesia, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Lao P.D.R., [online] http://www.humantrafficking.org/government_law/69, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Malaysia, [online] http://www.humantrafficking.org/countries/malaysia, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Recent Updates, [online] http://www.humantrafficking.org/countries/cambodia, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Singapore, [online] http://www.humantrafficking.org/countries/singapore, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Thailand, [online] http://www.humantrafficking.org/countries/thailand, accessed on 20 March 2008. The Human Trafficking.org Project, Academy for Educational Development, Viet Nam, [online] http://www.humantrafficking.org/countries/Viet Nam, accessed on 20 March 2008. Third periodic report of Singapore, submitted to the CEDAW Committee (CEDAW/C/SGP/3), 2004. UNICEF, Situation Review of Children in ASEAN, UNICEF East Asia and Pacific Regional Office, Bangkok, December 2007. UNIFEM, Shining a Bright Light: Monitoring Domestic Violence Law in Malaysia, [online]
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ASEANs Documents ASEAN Cooperation on Women: An Overview, [online] www.aseansec.org, accessed on 21 March 2008. ASEAN Declaration Against Trafficking in Persons Particularly Women and Children, 29 November 2004, Vientiane, Lao P.D.R. ASEAN Statistical Pocketbook 2006. ASEAN Vision 2020, Second ASEAN Informal Summit, 14-16 December 1997, Kuala Lumpur. ASEAN Youth Cooperation Overview, [online] www.aseansec.org, accessed on 1 August 2007. Declaration of ASEAN Concord, 24 February 1976, Bali, Indonesia. Declaration of the Advancement of Women in the ASEAN Region, 5 July 1988, Bangkok, Thailand. Declaration on Preparing ASEAN Youth for the Challenges of Globalisation, 2 November 2000, Yangon, Myanmar. Declaration on Strengthening Participation in Sustainable Youth Employment, 3-4 September 2003, Manila, Philippines. Declaration on the Commitments for Children in ASEAN, 2 August 2001, Singapore. Declaration on the Elimination of Violence Against Women in the ASEAN Region, 30 June 2004, Jakarta, Indonesia. Hanoi Plan of Action, adopted at the Sixth ASEAN Summit, 15-16 December 1998, Hanoi, Viet Nam. Joint Communiqu of the 6th ASEAN Ministerial Meeting for Social Welfare and Development, 6 December 2007, Hanoi, Viet Nam.
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ANNEX
ANNEX I
LIST OF PARTICIPANTS
The Expert Group Meeting on the Establishment of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children
20 November 2006, Pathumwan Princess Hotel, Bangkok
No.
1
Name
BRUNEI DARUSSALAM Ms. Datin Hajah Masni Binti Haji Mohd Ali Ms. Datin Hajah Adinah binti Othman
Position / Organization
Vice-President III / Council of Women of Brunei Darussalam
Director / Department of Community Development, Ministry of Culture, Youth and Sports
CAMBODIA Dr. Kek Galabru
President / Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
CANADA Assoc. Prof. Dr. Maureen Malony
Faculty of Law, University of Victoria
5 6
INDONESIA Ms. Kamala Chandrakirana Mr. Muhammad Joni, SH, MH
Chair / National Commission on Violence Against Women Chair of Legal & Advocacy Commission / National Commission for Child Protection
LAOS PDR Mr. Bounnheuang Songnavong
Deputy Director-General / Institute of Foreign Affairs, Ministry of Foreign Affairs Deputy Director General / ASEAN Department, Ministry of Foreign Affairs Desk Officer / ASEAN Department, Ministry of Foreign Affairs
Mr. Prasith Sayasith
Mr. Heuankeo Sangsomsak
10
MALAYSIA Dato' Param Cumaraswamy
Chairperson / Malaysian Working Group for an ASEAN Human Rights Mechanism Executive Director / Women's Development Collective
11
Ms. Maria Chin Abdullah
Annex I
No.
12 MYANMAR Mr. Myint Thein
Name
Director of DSW, Secretary of National Working Committee on the Rights of the Child, Department of Social Welfare
13 14
PHILIPPINES Prof. Dr. Aurora Javate de Dios Mr. Carlos P. Medina, Jr.
Executive Director / Women and Gender Institute Secretary General / Working Group for an ASEAN Human Rights Mechanism
15
SINGAPORE Prof. Dr. Thio Li-Ann
Faculty of Law National University of Singapore
16
THAILAND Dr.Saisuree Chutikul
CEDAW Committee Member and Former Member of the Committee on the Rights of the Child Faculty of Law, Chulalongkorn University Director / Division IV, Department of ASEAN Affairs, Ministry of Foreign Affairs Counsellor / Division IV, Department of ASEAN Affairs, Ministry of Foreign Affairs Counsellor / Head of HRs and Human Security Section, Ministry of Foreign Affairs Officer / Division IV, Department of ASEAN Affairs, Ministry of Foreign Affairs
17 18
Prof.Vitit Muntarbhorn Mr. Chowarit Salitula
19
Mr. Phanpob plangprayoon
20
Ms. Phantipha Iamsudha
21
Ms. Monpakawan prusmetikul
22
VIETNAM Ms. Nguyen Thi Thu Huong
Executive Director / Center for Research of Gender, Law and Community Development Program Manager / CEDAW South-East Asia Programme, UNIFEM
23
Mr. Vu Ngoc Binh
1 2 3
OBSERVERS
Ms. Amarsanaa Darisuren Ms. Isabel A. Lloyd Mr. Michael Miner Deputy Programme Manager / UNIFEM Consultant / CIDA- UNIFEM Regional Director / Southeast Asia Regional Cooperation in Human Development (SEARCH) Senior Program Officer / Southeast Asia Regional Cooperation in Human Development (SEARCH)
Ms. Melinda MacDonald
Annex I
No.
5 Ms. Rebecca Lee
Name
Project Officer / Southeast Asia Regional Cooperation in Human Development (SEARCH)
RESEARCH AND SECRETARIAT TEAM

Dr. Sriprapha Petcharamesree Director / Researcher leader Office of Human Rights Studies and Social Development Faculty of Graduate Studies, Mahidol University Lecturer / Researcher Office of Human Rights Studies and Social Development Faculty of Graduate Studies, Mahidol University Research Assistant / Member of Thai Working Group for an ASEAN Human Rights Mechanism Coordinator Volunteer / Master Student in Human Rights, Mahidol University
Ms. Varaporn Chamsanit
Ms. Sunsanee Sutthisunsanee
4 5
Ms. Pawadee Seeharaj Mr. Ryan Silverio
ANNEX II
LIST OF PARTICIPANTS
The Regional Consultative Meeting on the Establishment of an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children
3-4 April 2007, Siam City Hotel, Bangkok, Thailand
No.
1
Name
BRUNEI DARUSSALAM Ms. Datin Hajah Masni Binti Haji Mohd Ali CAMBODIA Ms. San Arun INDONESIA Ms. Magdalena Sitorus Mr. Bresman Sianipar
Vice-President III / Council of Women of Brunei Darussalam
Under Secretary of State / Ministry of Womens Affairs
3 4
Commissioner / National Commission for Child Protection Director-General for the Protection of Human Rights,/ Ministry of Justice and Human Rights Deputy Director for Law and Human Rights / Ministry of Foreign Affairs Deputy Directore for ASEAN Foundation and Human Resources Development, Directorate of ASEAN Functional Cooperation / Ministry of Foreign Affairs Vice Dean for Academic Affairs / Faculty of Law Padjaran University Indonesian Working Group for an ASEAN Human Rights Mechanism
Mr. Jehezkiel Lantu
Ms. S. Hartanti Kustiningsih
Mr. Rudi Rizki
Ms. Gregoria Ira
LAOS PDR Ms. Chansoda Phonethip
National Commission on the Advancement of Women (NCAW) / Lao Womens Union Deputy Director / Legal Division, Department of Treaties and Legal Affairs, Ministry of Foreign Affairs Deputy Director General / International Organization Department, Head of the Secretariat of the National Commission for Mothers and Children, Ministry of Foreign Affairs ASEAN Department, Ministry of Foreign Affairs
10
Mr. Bounpheng Saykanya
11
Ms. Khanthalasy Southichack
12
Mr. Heuankeo Sangsomsak
Annex II
No.
13 14
Name
MALAYSIA Dr. Chiam Heng Keng Dato Param Cumaraswamy
Commissioner / Human Rights Commission of Malaysia Chairperson / Malaysian Working Group for an ASEAN Human Rights Mechanism
15
MYANMAR Mr. Hla Myint
Director-General / Department of International Organization and Economic, Ministry of Foreign Affairs
16
PHILIPPINES Atty. Evelyn S. Dunuan
Commissioner / Office of the President National Commission on the Role of Pilipino Women (NCRFW) Commissioner / Commission on Human Rights of the Philippines Deputy Executive Director / Council for the Welfare of Children Assistant Director / Office of ASEAN Affairs, Department of Foreign Affairs
17
Atty. Quintin B.Cueto III
18 19
Ms. Ma. Elena Caraballo Mr. Jason Anasarias
20 21
TIMOR LESTE Mr. Joaquim Fonseca Mr. Aniceto Guro-Berteni Neves
Advisor on Human Rights / Office of the Prime-Minister Manager for Law and human Rights Programme / Association for Law, Human Rights and Justice
22
THAILAND Mr. Chowarit Salitula
Director / Division IV, Department of ASEAN Affairs, Ministry of Foreign Affairs First Secretary / Department of ASEAN Affairs, Ministry of Foreign Affairs, Counsellor / Social Division, Department of International Organizations, Ministry of Foreign Affairs Counsellor / Division IV, Department of ASEAN Affairs Department of International Organizations, Ministry of Foreign Affairs, Director of Child Protection Division / Office of Welfare Promotion, Protection and Empowerment of Vulnerable Groups Director of Womens Rights Protection Division, Office of Womens Affairs and Family Development
23
Mr. Siravich Paichayanont
24
Ms. Phantipha Iamsudha
25 26
Ms. Usana Berananda Ms. Pichayada Poomlaochaeng
27
Ms. Kannika Ratanamanee
28
Ms. Porsom Paopramot
Annex II
No.
29 30
Name
Ms. Naiyana Supapung Ms. Noppawan Sukchavan
Commissioner / Office of National Human Rights Commission Office of National Human Rights Commission
31
VIETNAM Mr. Tran Thi Mai Huong
First Vice-Chairperson / National Committee for the Advancement of Women in Vietnam (NCFAW) ASEAN Department, Ministry of Foreign Affairs
32
Ms. Hoang Thi Ha
33
REGIONAL AND INTERNATIONAL ORGANIZATIONS

Dr. IR. Azmi Mat Akhir Special Assistant to the Secretary-General of ASEAN / Institutional Affairs and Special Duties Chair, Board of Directors / Institute for Strategic and Development Studies, ASEAN-ISIS Regional Representative OHCHR Regional Office for SouthEast Asia, UNHCHR Programme Manager / CEDAW Southeast Asia Programme, UNIFEM Deputy Programme Manager / UNIFEM
34
Dr. Carolina G. Hernandez
35
Mr. Homayoun Alizadeh
36
Ms. Shoko Ishikawa
37
Ms. Amarsanaa Darisuren
OBSERVERS
Mr. Michael Miner Regional Director / Southeast Asia Regional Cooperation in Human Development (SEARCH) Senior Program Officer / Southeast Asia Regional Cooperation in Human Development (SEARCH)
Ms. Melinda MacDonald
1 2
SPEAKERS
Prof.Vitit Muntarbhorn Prof. Dr. Maureen Maloney Faculty of Law, Chulalongkorn University Professor of Law, Director / Institute for Dispute Resolution, University of Victoria Secretary General / Working Group for an ASEAN Human Rights Mechanism
Mr. Carlos P. Medina, Jr.
Annex II
No.
1
Name RESEARCH AND SECRETARIAT TEAM

Dr. Sriprapha Petcharamesree
Director / Researcher leader Office of Human Rights Studies and Social Development Faculty of Graduate Studies, Mahidol University Lecturer / Researcher Office of Human Rights Studies and Social Development Faculty of Graduate Studies, Mahidol University Research Assistant / Member of Thai Working Group for an ASEAN Human Rights Mechanism Coordinator
Dr. Varaporn Chamsanit
Ms. Sunsanee Sutthisunsanee
Ms. Pawadee Seeharaj
Ms. Ma. Ngina Chan-Gonzaga
Programme Officer / Working Group for an ASEAN Human Rights Mechanism Volunteer / Master Student in Human Rights, Faculty of Graduate Studies, Mahidol University Volunteer / Master Student in Human Rights, Faculty of Graduate Studies, Mahidol University
Mr. Ryan Silverio
Ms. Melizel Fojas Asuncion
ANNEX III
Law, Policies and Mechanisms Pertaining to Children in ASEAN Countries
Country
Brunei Darussalam
Laws
Childrens Order 2000
Policies
National Education Policy
Mechanism
Ministry of Culture, Youth and Sports (Social Affairs Unit) National Childrens Council 2001 A Working Group on CRC Report/Monitoring Domestic Violence and Child Abuse Unit (now the AntiVice Unit) under Dept. of the Royal Brunei Police Forces Child Protection Team Ministry of Health An Action Team on Child Abuse The National Advisory and Coordinating Committee for Children with Special Needs
Women and Girls protection Act Emergency (Education) Order 2000 Islamic Adoption of Childrens Order 2001/ Adoption of Children Order 2001 (for Non-Muslim) Emergency Islamic Family Order 1999 Unlawful Carnal Knowledge Act Penal Code/ The Criminal Procedure Code The Labour Act Emergency (Married Women) Order 1999 Births and Deaths Registration Act Cambodia Constitution 1993 Domestic Violence Law 2005 National Action Plan on Children Priority Action Program
Cambodian National Council for Children Ministry of Social Welfare
Law on Suppression of Kidnapping, Trafficking and Exploitation of Human Persons 1996 Labour Act 1992
National Plan Against Sexual Exploitation of Children
Department of Anti-Human trafficking and Juvenile Protection, Ministry of Interior Administrative Council for Children, Ministry of Education, Youth and Sports
Law on Prohibition of Child Labour and Minimum Age for Employment Law on Prohibition of Forced or Compulsory Labour Marriage and Family Act 1989 Immigration Act Nationality Law 1996
Annex III
Country
Indonesia
Laws
Policies
National Plan of Action of Human Rights 2004
Mechanism
National Human Rights Commission of Indonesia Ministry of Law and Human Rights
Human Rights Act.1999
National Program of Action for Children Continuity of Life, Development and Protection of the Mother and Child Jakarta Declaration on Birth Registration Guidelines for Management of Child Workers National Action Plan to Combat the Worst Forms of Child labour 2002 National Plan of Action for the Elimination of Commercial Sexual Exploitation of Children 2002 National Plan of Action for the Elimination of Trafficking in Women and children 2002 Indonesian Commission for Child Protection Department of Social Welfare -National Commission on the Elimination of Child Labour -National Commission on the elimination of Worst Forms of Child Labour
Child Protection Act 2002
Civil Registration Act Employment 1995
Marriage Act 1974
Nationality Act 1958
Law on national Education System Lao PDR. Constitution Law on Protection of Childrens Rights and Interests 2007 Labour Law
Nationality Law
National Action Plan for Children Project for Prevention of Trade in Women and Children, Ministry of Social Welfare National Plan of Action on Anti-Commercial Sexual Exploitation of Children
National Commission for Mother and Child National Supervising Committee on the Abolition of the Use of Child Labour Institute for Mother and Child Health
Family Registration Law Family Law Education Law
Annex III
Country
Malaysia
Laws
Human Rights Commission of Malaysia Act 1999
Policies
National Plan of Action for Children Survival, Protection and Development National Child Policy in 2007 National Family Policy and its Plan of Action
Mechanism
Human Rights Commission of Malaysia
Child Act 2001 [Act 611]
Ministry of Women, Family and Community Development. National Advisory and Consultative Council for Children
Education Act 1996 Guardianship of Infants Act 1961, Births and Deaths Registration Act 1957, Registration of Birth and Death Ordinance of Sabah, Registration of Birth and Death Ordinance of Sarawak Married Women and Children (Maintenance) Act 1950 Law Reform (Marriage and Divorce) Act 1976 Penal Code [Act 574] Children and Young Persons (Employment) Act 1966 [Act 350] Domestic Violence Act 1994 [Act 521] Children and Young Persons (Employment) Act 1966 (Revised 1988) [Act 350] Adoption Act 1952, Adoption Ordinance Sabah 1960 and the Adoption Ordinance Sarawak 1958, Registration of Adoption Act 1952 and the Islamic Family Law (Federal Territory) Act 1984. Shariah law Islamic Family Law (Federal Territory) Act 1984 (IFLA) [Act 303] Child Protection Teams and Child Activity Centres The Child Welfare Committee
Coordinating Council for the Protection of Children Malaysian Youth Council Board. Court for Children
Child Division, Department of Social Welfare
Annex III
Country
Myanmar
Laws
Child Law 1993 Rules and Regulations relating to Child Law 2001
Policies
National Program of Action (NPA) and the National Health Plans
Mechanism
Ministry of Social Welfare, Relief and Resettlement, The Social Welfare Department Myanmar Human Rights Committee (renamed Myanmar Human Rights Group in Nov.2007) Myanmar Education Committee Committee for the Prevention of Recruitmentof Child Soldier National Committee on the Rights of the Child (NCRC) Monitoring and Evaluation Sub-committee
Citizenship Act
National Education for All (EFA)
The Registration of Kittima Adoption Act: The Maternal and Child Welfare Association Law (Law No. 21/ 90) Philippines (selected) Philippines Constitution Bill of Rights National Human Rights Commission Act Presidential Decree (PD) 603, The Child and Youth Welfare Code
Child Rights Center, National Human Rights Commission
Philippine Plan of Action for Children The Philippine National Strategic Framework for Plan on Children: (2000-2025) or CHILD 21
Council for the Welfare of Children (CWC) CRC National Monitoring System Department of Social Welfare and Development (DSWD), The Special Committee for the Protection of Children, cochaired by the Secretary of the Department of Justice (DOJ) and Secretary of the Department of Social Welfare and Development (DSWD) National Task Force for Children in Need of Special Protection (CNSP
RA 7610, Special Protection of Children Against Child Abuse, Exploitation and Discrimination Implementing Rules and Regulations of RA 7610
Framework of Action against the Commercial Sexual Exploitation of Children
Barangay Level Total Development and Protection of Children Act (Republic Act 6972)
Local Development Plans for Children
Barangay Human Rights Action Centers (BHRAC) The Barangay Councils for the Protection of Children
Annex III
Country
Philippines (selected) (continued)
Laws
RA 8044 creating the National Youth Commission
Policies
Mechanism
Children Basic Sector Council National Child Commissioner National Anti-Poverty Commission (NAPC) National Youth Parliament Special Committee for the Protection of Children, the Philippine Judicial Academy Task Force on Child Protection of the DOJ;
RA 8369, Family Courts Act of 1997
Family Code (Related Provisional Executive Order 209) RA 8371, Indigenous Peoples Rights Act, 1997 RA 7658 - An Act Prohibiting the Employment of Children Below 15 years of Age in Public and Private Undertakings Anti-Violence against Women and Their Children Act (Republic Act No. 9262), 2004 Republic Act 8353 Anti Rape Law of 1997 Magna Carta for Disabled Persons
The National Programme against Child Labour (NPACL)
National Commission on Indigenous Peoples (NCIP) Bureau of Women and Young Workers
Violence against Women and Children Division of National Bureau of Investigation The National AIDS Prevention The National Council on the Welfare of Disabled Persons (NCWDP) The Child Watch Hotline
Domestic Adoption Act of 1998 (RA 8552) Memorandum of Agreement on the Handling and Treatment of Children Involved in Armed Conflict was issued on March 21, 2000 Anti-Trafficking in Persons Act (Republic Act 9208), 2003 Republic Act No. 8972, Solo Parents Welfare Act of 2000 Rooming-In and Breastfeeding Act (RA 7600) Executive Order 51 on the National Code on Marketing of Breastmilk Substitutes (Milk Code) Free Secondary Education Act Republic Act 8370, The Childrens Television Act
The National Disaster Coordinating Council (NDCC)
The National Nutrition Council (NNC), and the National Early Childhood Care and Development Coordinating Council (NECCDC)
Annex III
Country
Singapore Constitution
Laws
Policies
Mechanism
Inter-Ministry Committee on the Convention on the Rights of the Child The Child Abuse Protection Team and the Family Protection Unit The Ministry of Community Development and Sports Inter-Ministry Working Group on Child Abuse The National Youth Council Child Abuse Committee (Ministry of Health) The National Council of Social Services
Children and Young Persons Act 1949 (amended in 1993 and 2001) is only applicable to persons under the age of 16 and that the minimum age of criminal responsibility (7 years) and the minimum age of employment (12 years) are too low Compulsory Education Act, 2003 Adoption of Children Act Guardianship of Infants Act The Womens Charter 1961 The Employment of Children and Young Persons Regulations Child Care Centers Act and Child Care Regulations Registration of Birth and Deaths Act Thailand Constitution 2007 National human Rights Commission Act, 1999 Child Protection Act 2003 National Strategy and Plan of Action (2005-2015)
The National Child and Youth Development Plan
The National Human Rights Commission and its SubCommittee on Children, Youth and Families National Committee for Child Protection Office of Welfare Promotion, Protection and Empowerment of Vulnerable Groups (OPP), Ministry of Social Development and Human Security Sub-Committee for Monitoring and Evaluation of the Core Action Plan of the Declaration for Thai Children
The Act Instituting the Juvenile and Family Courts and Juvenile and Family Procedures of 199????? The Prevention and Suppression of Prostitution Act 1996
Long-Term Plan for the Development of Children and Youth The Plan of Action on Preventing and Combating Commercial Sexual Exploitation Plan for the Protection of the Rights of Children, Youth and Family for 1997-2006
Sub-Committee on Adaptation of National Legislation on Children The National Youth Commission
The Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997
Sub-Committee on Combating Trafficking in Children and Women
Annex III
Country
Thailand (Continued)
Laws
The Boxing Sport Act of 1999
Policies
National Plan of Action for the Elimination of the Worst Forms of Child Labour (2004-2009)
Mechanism
Sub-Committee on the Rights of the Child
The Modification of Criminal Procedure Code Act (No. 20) of 1999 on Investigation of Child Witness National Education Act of 1999 Ministry of Educations Regulations, 2000. The School Lunch Fund Act of 1992 Labour Protection Act 1998 The Civil Registration Act of 1991 Nationality Act of 1992 (amended in 2008) Vietnam The 1992 Constitution National Programme of Action for Children 20012010 (NPA)
National Council for Child and Youth Development
The National Institute for Child and Family Development, Mahidol University
Law on Protection, Care and Education, of Children 1991 (revised 2004)
Programme of Protection of Children in Especially Difficult Circumstances 1999-2002 National Programme of Special Protection for Children 1999-2002.
Vietnam Committee for the Protection and Care of Children (CPCC) (merged in 2002 with the National Committee on Population, Family and Children Central Council of Youth Union Ministry of Labour, Invalids and Social Affairs Committee on Culture, Education, Youth and Children of the National Assembly Research Centre for Human Rights, Ho Chi Minh Academy Committee for Ethnic Minorities and Mountainous Areas
Government Decree 83/1998/NDCP of 1998, on civil registration
Plans of Action for Children
The 1998 Law on Education (revised 2004)
National Target Programme on Hunger Eradication, Poverty Reduction and Jobs Prevention and Resolution of the problems of Street Children, Sex-abused Children and Children being overworked and working in poisonous and dangerous conditions
Law on Education of 1998
Annex III
Country
Vietnam (Continued)
Laws
Prime Minsters Decision No. 766/TTg
Policies
Action Program on Prevention and Struggle Against the Crimes of Trafficking in Women and Children for the period 2004-2010 Programme on the Prevention of Prostitution in the period 2004-2010.
Mechanism
The Ordinance on Marriage and Family between Vietnamese and Foreign Citizens of 1993 1998 Law on nationality The Labour Code of 1994 (amended 2002) Prime Ministers Directive No. 766/TTg of 1997 which defines the responsibilities of ministries to take measures to prevent the illicit trafficking of women and children abroad. The 2000 Law on Marriage and Family, Chapter VIII

Towards and ASEAN Commission On The Promotion and Protection of The Rights of Women and Children

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Towards and ASEAN Commission On The Promotion and Protection of The Rights of Women and Children

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Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children

The Working Group for an ASEAN Human Rights Mechanism

To The Working Group for an ASEAN Human Rights Mechanism

The Research Team June 2008, Bangkok, Thailand

135-137 138-141 142-149

SOMY TAC UDHR UN UNIAP UNICEF UNOHRC VAP

This chapter points out that there are a number

Introduction : ASEAN and Human Rights in Key Documents

Indonesia, Malaysia, The Philippines, Singapore and Thailand.

mechanism on human rights. 6

The scholar Dino Patti Djala commented that

13/10/1958 den.: 10/01/1990

Myanmar Philippines Singapore

04/03/1955 29/12/1953 29/12/1953 25/10/1965

Thailand Viet Nam Total of 10 4 5

08/02/1999 07/10/1997 07/10/1997 4

International developments in the three areas of womens human rights

ASEANs involvement in womens issues

2001 (sign.) 2000 (sign.) 2003 2000 -

2004 1986 2003 2004 1999 1982 1999 1987 1983

National machinery on women

Legislative measures related to womens human rights in ASEAN countries

Discrimination against women

Trafficking in women and girls

trafficking in persons is not specifically criminalized in Malaysia. 50

The Committee also urged that Malaysia consider

provides a comprehensive legal framework to deal with different aspects of

Violence against women

Violence Against Women in the ASEAN Region was adopted in 2004.

However, the CEDAW

Commitment to the Rights of the Child of ASEAN

. A rights-based perspective has not been, in any instance,

ASEAN Members and the Convention on the Rights of the Child

Table 5. Status of Ratifications of CRC/OP1 and OP2 (as of March 2008)

Blanket reservations including Art.1,14,16,17,21,22,29 -

Declarations on Art.12-17,19 and 39 /Reservations to Art.7,9,10,12,22,28 and 32 Art.7,22

Initial report of State parties due in 1994 :Cambodia.24/06/98. CRC/C/11/Add.16, para.33

Singapore, although lacking a national plan and

Concluding observations : Singapore, CRC/C/15/Add.220, 27 October, 2003, para. 3.

In Vietnam, the Committee for the Protection and Care

The Committee thus recommends these States to establish an independent and

In most, if not all

Legislative Measures, Policies and Mechanisms on Child Rights : An Assessment.

The Constitution of Lao PDR prescribes in Art.22 that

The Constitutions of the three

adoption of an effective strategy to combat against discrimination, seems indispensable.

The Best Interests of the Child

Child Survival, Protection and Child Development

It should be noted that although

. Myanmar, fixes the age of criminal responsibility

Respect for the View of the Child or Child Participation

Concluding observations, Indonesia, ibid, para. 75-77. UNICEF, Ibid, p.25.

However, the Committee further notes that despite these

The Inter-American System

Inter-American Court on Human Rights

Specialised Institutions for Women

The African System

Accordingly, individuals invoke Similar notions of an individuals

relationship to the collectivity or community imbue the emphasis on individuals

Womens Human Rights

African Charter on the Rights and Welfare of the Child

The African Court on Human and Peoples Rights

The European Convention on Human Rights and Fundamental Freedoms