On June 22-23, 2012, the ASEAN Inter-Governmental Commission on Human Rights (AICHR) consulted civil society organizations from the 10 ASEAN Member-State to comment on and provide recommendations for the ASEAN Human Rights Declaration (AHRD). Accordingly, DAWN has signed onto a statement initiated by LGBT activists in the ASEAN region. It is endorsed by LGBT groups, human rights and women’s rights groups across the region.

To Sign-On to this statement, please click the Sign-On button below this article.

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

The ASEAN Inter-Governmental Commission on Human Rights (AICHR) has worked hard to draft an ASEAN Human Rights Declaration (AHRD) that reflects the true commitment among Member States to upholding human rights, promotes adherence to recognized international human rights standards and meets ASEAN’s main goal: “strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the Rights and Responsibilities of the Member States of ASEAN .”

Under the ASEAN Charter, Member States reaffirm their adherence “to the fundamental principles contained in the declarations, agreements . . . and other instruments of ASEAN .” Member States undertake to“[Uphold] the United Nations (UN) Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States .” In addition, Member States must comply with those rights, which now form part of customary international law and which are universally applicable.

The ASEAN Charter commits Member States to upholding the Charter of the United Nations, of which all ASEAN countries are members. Under the UN Charter, Member States pledge to maintain international peace and security, reaffirm their faith in the “dignity and worth of the human person,” and promote respect for human rights for all without distinction as to race, sex, language, or religion .” The ASEAN Charter and ASEAN human rights bodies and declarations reinforce these principles.

Being one of ASEAN’s human rights bodies, AICHR must be guided by “respect for international human rights principles, including universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, as well as impartiality, objectivity, non-selectivity, non-discrimination, and avoidance of double standards and politicization .”

The recommendations listed in this submission have been formulated by groups and activists from the LGBT, women’s rights and human rights sectors, representing regions from across Asia. They have participated in local and regional workshops and consultations concerning the AHRD, including The Women’s Caucus, the ASEAN Civil Society Conference/ASEAN People’s Forum and PhilWomen on ASEAN Workshop.
We believe that LGBT persons in Asia have the right to be included in the consultation process and have their recommendations scrutinized with non-biased and non-prejudiced eyes, free from discrimination and religious bigotry. As the UN High Commissioner for Human Rights, Navanethem Pillay, has noted: “no discussion of human rights can be complete or credible without significant input from civil society and national human rights institutions ”.

Seeing the value of the AHRD as a legal human rights document, lesbian, gay, bisexual and transgender (LGBT) individuals across Southeast Asia aspire that the final document will recognize ASEAN’s obligations under the UN Charter and protect the rights of all people, regardless of sexual orientation and gender identity (SOGI) We believe that this will only be achieved with the cooperation of AICHR, and its willingness to include the human rights of LGBT individuals.

RATIONALE FOR THE INCLUSION OF SEXUAL ORIENTATION AND GENDER IDENTITY IN THE AHRD

Every ASEAN Member State is a party to the UN Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). They are therefore bound by the terms of each of these treaties.

During the 32nd Session of CRC (March 2003), the Committee on the Rights of the Child adopted sexual orientation in its General Comments No. 3 , which focuses on HIV/AIDS and the rights of the child. Similarly, during the 33rd Session of the CRC (July 2003), the Committee on the Rights of the Child made explicit reference to sexual orientation in its General Comment No. 4, which focuses on the Adolescent health and development in the context of the Convention on the Rights of the Child .

The CRC is universally ratified within ASEAN and no ASEAN Member-State made any reservations on the non-discrimination provision of the CRC, which specifically mentioned sexual orientation as one of the protected categories under the CRC’s non-discrimination principle.

During the 47th Session of CEDAW (October 2010), the Committee on the Elimination of Discrimination Against Women (“the CEDAW Committee”) adopted sexual orientation and gender identity in its General recommendation No. 27 , which focuses on older women and the protection of their human rights. Similarly, in General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW , the CEDAW Committee made explicit reference to SOGI. The CEDAW Committee practice in the past has strongly urged states parties through its Concluding Observations for decriminalization where sexual orientation and related behavior is criminalized in the law .

Both General Recommendations clearly identify that discrimination on the basis of sexual orientation and gender identity is inextricably linked with discrimination against women on the basis of sex or gender and that it must be prohibited and addressed under States’ CEDAW obligations.

Therefore, we propose that sexual orientation and gender identity be included in the AHRD:

GENERAL PRINCIPLE

Everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, sexual orientation, gender identity, language, religion, political or other opinions, national or social origin, property, birth, disability or other status. No one shall be discriminated against by any public authority or any third parties on any grounds. The State shall take action to eliminate both discrimination de jure (in law) and de facto (in fact).

The human rights of women, children, the elderly, persons with disabilities, migrant workers, migrants, victims of natural calamities, internally displaced persons, ethnic groups, indigenous peoples, and other vulnerable groups regardless of sexual orientation and gender identity, are inalienable, integral and indivisible part of universal human rights.

STATE RESPONSIBILITIES OF THE ASEAN MEMBER STATES

We propose this provision be included in the AHRD:

ASEAN Member States shall undertake to prohibit and to eliminate all forms of discrimination of any kind, including race, colour, national or ethnic origin, sex, gender, sexual orientation, gender identity, age, social and legal status.

DUTIES AND RESPONSIBILITIES

We propose this provision be included in the AHRD:

Everyone regardless of gender, ethnic origin, social status, political opinion, language, age, nationality, or religion, sexual orientation and gender identity has a responsibility to treat all people in a humane way.

CIVIL AND POLITICAL RIGHTS

We propose this provision be included in the AHRD:

Within the ambit of the law, no one shall be forcibly returned or transferred extradited to a place where he or she may face persecution on grounds of race, religion, ethnicity, nationality, social status, sexual orientation and gender identity.

The promotion and protection of religious freedom, indigenous culture shall not prejudice nor be used to discriminate and/or violate the inherent human rights of person or people not in conformity with the religion and culture such as but not limited to those with diverse sexual orientation and/or gender identity.

Every person has a right to form a family. The family is the basic unit of society (in lieu of “natural and fundamental unit of the society). ASEAN Member States shall recognize and protect the rights of all forms of families, without distinction on nationality or citizenship, sexual orientation and gender identity. This includes the right of migrants, lesbian, gay, bisexual and transgender families to social services, co-own properties, and be recognized as rightful beneficiaries of the partners, with custody of their children.

All ASEAN Member States shall ensure that no religious beliefs or teachings should influence laws, and State policies nor it be imposed to all citizens in any ASEAN member state.

RIGHTS OF WOMEN, CHILDREN AND OTHER VULNERABLE GROUPS

We propose this provision be included in the AHRD:

The human rights of vulnerable groups including women, children, persons with disabilities and elderly regardless of sexual orientation and gender identity are inalienable, integral, and indivisible part of universal human rights.

Migrant workers and members of their families within the territory or subject to the jurisdiction of any ASEAN member State shall enjoy their human rights and fundamental freedoms without distinction of any kind such as to sex, gender, sexual orientation, gender identity, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, material status, disability, birth or other status

ENDNOTES:

Charter of the Association of Southeast Asian Nations (ASEAN Charter), art. 1(7) (2007)
ASEAN Charter, art. 2(1)
ASEAN Charter, art. 2(2)(j).
UN Charter, art. 1(3).
AICHR TOR, art. 2(2).
Civil society must play bigger role in human rights in South-East Asia – UN official, http://www.un.org/apps/news/story.asp?NewsID=40546
CRC/GC/2003/3 page 3
CRC/GC/2003/4 page 2
CEDAW/C/2010/47/GC.1
CEDAW/C/2010/47/GC.2
Concluding Observations to Kyrgyzstan CEDAW A/54/38 page 4 para 127-128