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

1. Towards an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children Sriprapha Petcharamesree OHRSD, Mahidol University, Thailand www.humanrights-mu.org Presented at the 7th Workshop on the ASEAN Regional Mechanism on Human Rights Amara Sanctuary Resort, Sentosa, Singapore 12-13 June, 2008

3. ASEAN commitments 1988 Declaration on the Advancement of Women in ASEAN 2004 Declaration on the Elimination of Violence Against Women in the ASEAN Region 2004 ASEAN Declaration Against Trafficking in Persons Particularly Women and Children

4. ASEAN commitments Kuala Lumpur Agenda on ASEAN Youth Development (1997) Yangon Declaration on Preparing ASEAN Youth for the Challenges of Globalisation (2000) Declaration of Principles to Strengthening ASEAN Collaboration on Youth (1983) Manila Declaration on Strengthening Participation in Sustainable Youth Employment (2003)

5. ASEAN commitments ASEAN-UNICEF cooperation on Children ASEAN Plan of Action on Children (1993) ASEAN declaration on the Commitments for Children in ASEAN (2001) Declaration Against Trafficking in Persons Particularly Women and Children (2004)

6. Hanoi Action Plan (1997-2004) IV. Promote Social Development and address the Social Impact of the Financial and Economic Crisis 4.5 Strengthen ASEAN collaboration in combating the trafficking in, and crimes of violence against, women and children. 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.

7. Vientiane Action Programme (2004-2010) Programme Areas and Measures on Promote human rights 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 MOU to establish network among existing human rights mechanisms Formulation of work programme of the network Promote education and public awareness on human rights Establish a network of cooperation among existing human rights mechanisms Elaboration of an ASEAN instrument on the protection and promotion of the rights of migrant workers Establishment of an ASEAN commission on the promotion and protection of the rights of women and children.

8. ASEAN ratifications of intl.human rights instruments (as of March 2008)

9. Laws, policies, and mechanisms regarding the rights of women in ASEAN countries Most countries in ASEAN have not enshrined a clear legal definition of discrimination against women in their domestic laws. 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.

10. Laws, policies, and mechanisms regarding the rights of women in ASEAN countries Several ASEAN governments have developed new and comprehensive legislation to deal with some specific problems facing women, such as human trafficking and violence against women Efforts have been confirmed at the regional level by the 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.

11. Laws, policies, and mechanisms regarding the rights of women in ASEAN countries Violence against women, generally speaking, ASEAN governments have responded positively to the international call to combat this problem. 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 women�s 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 women�s actual enjoyment of human rights.

12. Laws, policies, and mechanisms regarding the rights of the child in ASEAN countries 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.

13. Laws, policies, and mechanisms regarding the rights of the child in ASEAN countries Non discrimination. 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. The best interest of the child. In most cases, this principle is not explicitly specified in the Constitution nor in the child-specific legislation, except in the case of The Philippines. Child survival, protection and child development are the most developed among the four principles. 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. Child participation. 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.

14. Values �added of the ACWC Pragmatic entry point to a broad-based regional human rights mechanism Nurture regional responses to issues pertaining women and children�s rights Platform for regional/international dialogue Bridging the gap in terms of reporting and monitoring Ability to address issues specific to women and children

15. Values � added (cont.) Assist the country to comply with international standards bridge the gap in the national and international levels upgrade the standards of compliance. existing environment is already conducive to establishing a commission

16. Designing the ACWC :Some recommendations In principle, the establishment of any human rights mechanism should be based on Paris Principles with the emphasis on its independence from the government, pluralistic composition and representativeness, having broad mandates with adequate powers, sufficient resources and accessibility

17. Recommendations (cont.) An inter-governmental and independent body with an established legal status The CEDAW and CRC should be used as a common legal standard under which ASEAN must not go below both promotional and protective mandates Based on Paris Principles

18. Recommendations (cont.) Founding document and process and contents A legal document (Convention or Intergovernmental Agreement) A High-Level Task Force with multiple representation Cover principles-standards, institutions, power and functioning, obligations and procedures Submit to ASEAN Secretariat by 2008

19. Recommendations (cont.) Rights to be covered Rights recognized by CEDAW and CRC as well as human rights instruments already ratified by member states ASEAN documents having bearing on the rights of women and children

20. Recommendations Structure Commissioner appointed by her/his respective government on her/his own capacity Equal number of experts on rights of women and children Gender balance Full time (at least Chair) with 3-4 year term renewable one time

21. Recommendations International qualifications with �high moral character�, �independence� and �expertise in human rights of women and children as well as knowledge of ASEAN process� Citizen of ASEAN member countries Part of ASEAN Structure having its own secretariat Include two separate entities under one umbrella Decide by consensus and non-consentual voting

22. Recommendations Mandates and Functions Protection and promotion as a bottom line No investigation power No individual complaints but open to state complaints with non legal binding recommendations No country report is require but Commission could conduct thematic reports on serious issues

23. Recommendations Equipped with a rapporteurship system Assess/review the human rights situation ("monitor") Access those affected vulnerable groups 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 (x minus y formula) Advocate/cooperate with key partners/stakeholders to protect those affected vulnerable groups Accountable to both the governments and people

24. Recommendations Advisory opinion and non-legal binding recommendations not supra-national authority Taking into consideration guiding principles of ASEAN Cooperation not confrontation Not a window dressing of the governments

25. Recommendations (cont.) Fundings Contribution of ASEAN members however, it will be allowed to accept external funding support through ASEAN Guidelines for funding to be established Civil society participation Engaging throughout the process Consultative partners

26. Recommendations (cont.) "mechanism" means to an end/ a development process "informed" by international standards, while capitalising upon wisdom of the ASEAN region; non-discrimination: covers both nationals and non-nationals; universality, indivisibility and interdependence of human rights; Linking with existing institutions and civil society

27. Final thoughts : Pending issues for decision Why two regional bodies? One or two separate commissions? Instrument or institution first? ACWC and existing regional machineries under ASEAN functional cooperation-overlap? All ten or minus-X formula