Dear colleagues and friends,
Draft as of 21 June 2012
[3] Including state
sanctioned plural legal systems.
We are happy to share
with you an addendum to the Women's Caucus submission on the AHRD. A doc
file can also be downloaded from out blog,
http://womenscaucusonasean.
We will be sharing some more in the coming days.
Thank
you,
Nina ---------- Draft as of 21 June 2012
The
Universal Declaration on Human Rights (UDHR) is an appropriate reference
for a
foundational regional human rights document. However more than half a
century
since the UDHR was written, different individual and collective
experiences
have challenged this framework, necessitating a deeper understanding and
broader recognition of human rights. In line with the evolutionary
approach
that the ASEAN Intergovernmental Commission on Human Rights (AICHR) has
adopted, we reiterate our position on specific areas which must be
included in
the ASEAN Human Rights Declaration (AHRD).
Due diligence and state
obligation
In the general principles of
the ASEAN
Human Rights Declaration (AHRD), emphasis must be placed on due
diligence and
state obligation. As the primary duty-bearers, states have the
obligation to
ensure an individual’s exercise of one’s human rights. Due diligence
must be
exercised by the state in four areas: prevention, protection, punishment
and
reparations. In fact, state obligation is one of the building blocks of
the
Convention on the Elimination of All Forms of Discrimination Against
Women
(CEDAW). Moreover, the CEDAW Committee’s General Comment 19 says that
“Under
general international law and specific human rights covenants, States
may also
be responsible for private acts if they fail to act with due diligence
to
prevent violations of rights or to investigate and punish acts of
violence, and
for providing compensation.” This should also include inter alia
the due diligence to a conceptual and policy framework
to anchor the business and human rights debate, and to help guide all
relevant
actors. The framework should consist of three pillars:
1.
The State’s duty to protect
against human rights
abuses by third parties, including business and international financial
institutions, through appropriate implementation of policies,
regulation, and
adjudication;
2.
The corporate responsibility
to respect human
rights, which means to act with due diligence and put in safeguards to
avoid
infringing on the rights of others; and
3. Greater
and direct access for victims to effective remedy, judicial and
non-judicial.
Further
clarifying the application of the principle the Special Rapporteur on
Violence
Against Women its Causes and Consequences in her Report to the
Commission on
Human Rights at its Sixty-second Session[1]
considered the application of due diligence standards in order to (a)
focus on
State Obligation to transform the societal values and institutions that
sustain
gender inequality while at the same time effectively respond to violence
against women when it occurs, and (b) examine the shared
responsibilities of
State and non-State actors with respect to preventing and responding to
violence and other violations of women’s human rights.
Non-derogation and
non-retrogression
of human rights
Although the AHRD is a
regional human
rights principle document that may take into account “national and
regional
particularities” (AICHR TOR 1.4), the AHRD must be at par with
international
human rights standards. The general principles of the AHRD must include a
provision that reiterates the non-derogation and non-retrogression of
human
rights. Once a particular level of enjoyment of rights has been
articulated and
realized in international, other regional and/or national context it
should be
maintained and not be undermined. Moreover national and regional
particularities must be used to strengthen rather than limit existing
human
rights.
Duties and limitation of
human rights
The primary duty-bearers are
states.
This was underscored in the Declaration on the Right and
Responsibility of Individuals, Groups and Organs of Society to Promote
and
Protect Universally Recognized Human Rights and Fundamental Freedoms. Citing
the
duties of individuals is unnecessary. The same declaration points out
that
human rights may only be limited based on the rights of others: “In the
exercise of the rights
and freedoms referred to in the present Declaration, everyone, acting
individually and in association with others, shall be subject only to
such
limitations as are in accordance with applicable international
obligations and
are determined by law solely for the purpose of securing due recognition
and
respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a
democratic
society” (Art. 17).
“Morality,” “Public Morality”
and
“Public Morals”
Although Article 29 of the
Universal
Declaration of Human Rights uses “morality” as a limitation of rights,
having
“morality” and other similar terms such as “public morality” and “public
morals” have proved to undermine women’s human rights because of their
subjectivity. “Morality” has not been defined but in practice has been
oriented
towards the interpretation of the dominant political and religious
hierarchies.
“Morality” can also render certain gender identities transgressive,
especially
for sexual minorities. It can also deflect attention from seeing sexual
violence,
for example as a crime against person, rather than honor. We propose
that the
term be dropped as in the case of the Charter of Fundamental Rights of
the
European Union.
Women as “marginalized”
rather than
“vulnerable” group
Describing women as a
“vulnerable”
group overlooks their own agency as individuals. Although the Vienna
Declaration uses the term “vulnerable” to groups which need more
protection,
the document takes into account the conditions which caused such
vulnerability.
Hence the wording “rendered vulnerable” (Para. 24). Moreover, there are
men and
boys who are also rendered vulnerable by crises especially conflicts. It
is
important to note that even UN Security Council Resolution 1820 which
prohibits
the use of rape and other sexual violence as weapons of war, while
placing
emphasis on women and children, does not mention the term “vulnerable.”
Right to citizenship
The CEDAW Convention (Article
9)
provides the right to nationality, underscoring that marriage must in no
way deprive
a woman of her nationality. However studies of women legal and human
rights
advocates and experts have found the term “citizenship” more precise in
denoting rights and entitlements than “nationality” which can be
essentialist.
This shift is suggested by the more recent CEDAW statement in 2011 on
the
anniversaries of the 1951 Convention Relating to the Status of Refugees
and the
1961 Convention on the Reduction of Statelessness: “The CEDAW Convention
promotes gender equality and sets out measures for the advancement of
all women
without distinction on the basis of their nationality/citizenship or
other
legal status, such as refugee, migration or marital status.” Hence for
language, we propose “the right to citizenship.”
Refugees, undocumented
migrants,
asylum seekers
As a region where there is
significant movement of peoples due
to political and economic crises, “freedom of movement” must be framed
broadly
and closely linked to related rights such as right to work and right to
citizenship. The specific context of refugees, undocumented migrants,
asylum
seekers and their children must be considered. It is also equally
important to
note that these groups of people should be recognized as an “individual
or
person” albeit considered “illegal” under certain state legislations to
ensure
their rights as a “person” is promoted and protected. In accordance with
CEDAW
and UN Security Council Resolution 1325, we propose the language,
“Gender-sensitive safeguards and practices must be institutionalized in
registration, reception, interview and adjudication processes to ensure
women’s
equal access to asylum.” This should also be strengthened by a call for
the
ratification of other international treaties, primarily the UN
Convention
Relating to the Status of Refugees and the Convention on the Rights of
Migrant
Workers and their Families, amongst others.
Responsibilities of
labor-receiving
countries
Since labor migration
prominently
marks the region’s economic activities, it is appropriate that the
responsibilities of labor-receiving countries be emphasized. The CEDAW
Committee in its General Recommendation 26 on Women Migrant Workers
emphasizes
that all categories of women migrants, including those who are
undocumented in
either in country of origin, transit or destination, fall within the
scope of
the obligations of State parties to the Convention and must be protected
against all forms of discrimination.We propose the following language,
“Labor-receiving governments must promote and protect the rights of
migrant
workers, be they document or undocumented and skilled or unskilled. It
must
extend such protection to migrant workers’ dependents.”
Sexual orientation and gender
identity
Sexual orientation and gender
identity
must be a ground for non-discrimination, along with
race, color, sex, political
or other
opinion, national or social origin, social and economic status, marital
status,
age, disability, ethnicity, religion, nationality, language, birth or
any other
condition. The CEDAW Committee in its General Recommendation 27 and 28
has
explicitly stated that there should not be any discrimination on the
basis of
sexual orientation and gender identity. Further, in 2011, Human Rights
Council issued a
resolution, “expressing grave concern at acts of violence and
discrimination,
in all regions of the world, committed against individuals because of
their
sexual orientation and gender identity.” Meanwhile, the Yogyakarta
Principles
also states that, “Human
beings of all sexual orientations and gender
identities are entitled to the full enjoyment of all human rights.”
Along this
line, it is important to ensure that the language of the AHRD must be
inclusive
of the different gender identities and not adopt a heteronormative
approach.
Right to found a family and
family as
a social unit
Aside from the equal rights
and roles
in marriage and family (See Women’s Caucus 31 October 2011 submission),
we
propose that “family” in the context of
“the right to found a family” be
interpreted in its broadest and most inclusive fashion so as to
encompass as
other forms of family that do not conform to the nuclear two-parent
family. The
family must be recognized as a social unit rather than a “natural” unit
--- and
the AHRD should include language that does not discriminate those
consisting of
unmarried and LGBT parents and does not stereotype any forms of non
heteronormative family arrangements.
Sexual and reproductive
health and
rights
Reproductive health must not
be
limited to procreation, maternal care or married women. It is part of
the right
to health and right to self-determination, as suggested by the
International
Conference on Population and Development and its Plan of Action, which
is
linked to the Millennium Development Goals. The ICPD reads,
“Reproductive
health care also includes sexual health, the purpose of which is the
enhancement of life and personal relations… Reproductive rights rest on
the
recognition of the basic right of all couples and individuals to decide
freely
and responsibly the number, spacing and timing of their children and to
have
the information and means to do so, and the right to attain the highest
standard of sexual and reproductive health. They also include the right
of all
to make decisions concerning reproduction free of discrimination,
coercion and
violence. Full attention should be given to promoting mutually
respectful and
equitable gender relations and particularly to meeting the educational
and
service needs of adolescents to enable them to deal in a positive and
responsible way with their sexuality.” There should not be any
distinction/discrimination
as well in terms of the recipients of social services related to SRHR.
Unmarried women and girls, along with men and boys equally have the
right to
have an informed choice and protection over their bodies and
relationships.
Rights related to work and
maternity
Right to work must cover
maternity
entitlements. Maternity benefits must be based not on mere reasonable
standards
but rather those set by the International Labor Organization (ILO) and
CEDAW.
CEDAW specifically prohibits dismissal on the
grounds of pregnancy or of maternity
leave and discrimination in dismissals on the basis of marital status.
It also stipulates the need
for states to introduce maternity
leave with pay or with comparable social benefits without loss of former
employment, seniority or
social allowances; Ensure that the Labour Law
expressly provides
for equal remuneration of women and men for work of equal value,
protects the
rights
of women employed on
fixed-term
contracts to paid maternity leave and to return to work after
childbirth, and
introduces special non-transferable paternity leave to promote the
active
participation of fathers in child-raising; and to encourage the
provision of the necessary supporting social services to
enable parents to combine family obligations with work responsibilities
and
participation in public life, in particular through promoting the
establishment
and development of a network of child-care
facilities; It further requires states to provide special protection to women during pregnancy
in types of work proved to be harmful to
them and their baby.
Access
to Justice
The
Secretary General of the UN has stated that the “United Nations has
learned
that the rule of law is not a luxury, and that justice is not a side
issue. And
we have seen that elections held when the rule of law is too fragile
seldom
lead to lasting democratic governance. We must take a comprehensive
approach to
justice and the rule of law. It should encompass the entire criminal
justice
chain – not just police, but lawyers, prosecutors, judges, and prison
officers
– as well as many issues beyond the criminal justice system. We must
make
better use of the resources we have. We have taken steps in-house to
help all
agencies work together, so that we can better identify justice and rule
of law
issues in our reports to this Council. But a one-size-fits-all approach
does
not work. Local actors must be involved from the start – local justice
sector
officials and experts from government, civil society, and the private
sector.
We have learned that the rule of law delayed is lasting peace denied,
and that
justice is a handmaiden of true peace[2].”
The CEDAW Committee has
repeatedly
made the case that de jure and de facto access to adequate and effective
judicial
remedies is essential towards advancing the rights of women in all
spheres,
including civil, political, economic, social and cultural. Access to
Justice is
a basic human right – it is an essential tool in ensuring the full
realization
of all human rights. Respect and protection of human rights can only be
guaranteed with the availability of effective judicial remedies. When a
right
is violated or damage is caused, access to justice is of fundamental
importance
for the injured individual and it is an essential component of the rule
of law.
Effective access to justice provides women a means to exercise choice
and
actively claim the entire range of rights without discrimination on any
grounds, including civil and political rights such as to participation,
to
protection of their rights to life, liberty and security of the person,
to
freedom from torture and economic, social and cultural rights such as to
health, education, work, social security, an adequate standard of
living, to
take part in cultural life etc. and the resources to realize all rights.
It
also empowers those who are disadvantaged to seek full, appropriate and
effective redress when their rights are violated.
As such the AHRD
should address very
specifically access to judicial justice[3],
administrative and quasi judicial justice, as well as informal
mechanisms of
justice, which decide on and create
jurisprudence on rights being violated and provide the required
remedies.
Access to this type of justice takes into consideration all the
substantive,
structural, economic, cultural, social or political obstacles to this
access,
and also includes in the remedies access to economic, cultural,
political,
social, civil rights that have been denied on grounds of discrimination
against
women based on sex and/or gender, inextricably linked with other factors
that
affect women, such as race, ethnicity, religion or belief, nationality,
health,
status, age, class, caste and sexual orientation and gender identity.
Right
to Development
Corporate social
responsibility must
be extended to international financial institutions and multilateral
development banks, whose social safeguards which address issues on
environment,
involuntary resettlement, indigenous peoples, health and gender as well
as
public communications (disclosure and consultation) let alone are not
always
implemented with the highest standards. In fact, these have been
circumvented
on different occasions even in the name
of development.
[1]
Integration of the Human Rights of Women and Gender Perspective:
Violence
Against Women, The Due Diligence Standard as a Tool for the Elimination
of
Violence Against Women, Report of the Special Rapporteur on Violence
Against
women, its causes, consequences, Yarin Erturk, E/CN.4/ 2006/61, 20
January
2006.
[2]Secretary-General's
remarks to the Ministerial Meeting of the Security Council on Justice
and the
Rule of Law: The United Nations Role, New
York, 24 September 2003
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