Letter to ASEAN Secretary General Ong Keng Yong

The ASEAN Charter

November 15, 2007

H.E. Ong Keng Yong
Secretary General
The ASEAN Secretariat
70A, Jalan Sisingamangaraja
Jakarta 12110
Indonesia

Re: ASEAN Charter

Dear Secretary General:

Congratulations on the impending signing of the new ASEAN Charter at the 13th ASEAN Summit in Singapore from November 18-22. We are hopeful that the long-awaited signing of the Charter may lead to a commitment among ASEAN members to protect human rights. We especially welcome the provisions of the Charter pledging all signatories to abide by international law and enacting a regional human rights mechanism. We urge you and other ASEAN Foreign Ministers to establish specific deadlines for implementing a binding human rights mechanism as part of the new Charter.

We also urge ASEAN members to use the opportunity of signing the Charter to pressure the military junta of Burma to end abuses and to embark on serious, structured, and time-bound negotiations with opposition parties and ethnic groups to create democratic, civilian rule as soon as possible. We welcome ASEAN’s strong statement delivered on September 27 in New York on the crackdown upon peaceful protestors that “expressed their revulsion… over reports that the demonstrations in Myanmar are being suppressed by violent force.” It is now time to turn these words into action.

Human Rights and the New Charter

One of the purposes of ASEAN set out in the draft Charter is to strengthen democracy, enhance good governance and the rule of law and to protect and promote human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN. Another purpose is to ensure that the peoples and Member States of ASEAN live in peace in a just, democratic, and harmonious environment. Substantively for ASEAN to achieve these purposes, the draft Charter establishes a series of principles to which each State must adhere to. These include respect for fundamental freedoms, the promotion and protection of human rights and social justice as well as the renunciation of aggression and of the threat or use of force or any actions in any manner inconsistent with international law, and upholding international law.

You have stated that the Charter will make “ASEAN a more rules-based organization and… will put in place a system of compliance monitoring and, most importantly, a system of compulsory dispute settlement for noncompliance that will apply to all ASEAN agreements.” We welcome this vision, yet are concerned that there is no clear mechanism to take action against states, such as Burma, that simply ignore the Charter’s human rights provisions.

The Charter lacks any procedures to implement its principles and contains weak compliance provisions. Violations of the Charter’s principles are simply referred to the next ASEAN summit for discussion, suggesting a slow deliberation process that will become entwined in politics and national vetoes.

We are also concerned that the terms of reference for the proposed regional human rights body in the Charter is to be decided at a separate meeting of foreign ministers, a process which could drag on for years given that ASEAN has been deliberating on a regional human rights mechanism since 1993.

While we see the Charter as a step in the right direction, much more is needed if the Charter’s aims of protecting and promoting human rights are to be achieved. The Charter’s list of principles are quite vague, and only commit ASEAN Member States very broadly to do what they are already bound to do under international law and the UN Charter. The ASEAN Charter sets out the principles; what is needed is fast action to create a mechanism to turn these principles into reality for ASEAN’s people.

ASEAN should reach agreement on a timeframe for an independent and transparent mechanism to enforce the Charter’s commitments by the time it enters into force, which is 30 days after the Charter is signed.

For the human rights provisions of the new Charter to function effectively, ASEAN should:

* Ask all Member States to sign and ratify the core human rights conventions such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture, the Convention on the Elimination of all forms of Racial Discrimination, the Convention Against Enforced Disappearances and their optional Protocols where they exist;
* Adopt regional human rights institutions, with committees assigned to address specific issues such as those protected under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;
* Review the human rights records of all Member States on a regular basis.

Burma

On July 24 2007, you told reporters that the Charter will help ASEAN’s relationship with Burma, adding that it would “stress responsibility and obligation of the membership,” compared to current discussions on compliance which are “more persuasive, more informal.” The draft Charter states that the ASEAN Summit shall address emergency situations affecting ASEAN by taking appropriate action. We strongly urge ASEAN Member States to act on the Charter by addressing the emergency situation is Burma as a test case.

Indeed, recent events in Burma show the need for a strong Charter to deal with grave human rights violations, such as the killings of monks and peaceful protestors and the detention of thousands. ASEAN’s welcome expression of “revulsion” should act as a guide for its future dealings with the Burmese State Peace and Development Council (SPDC). Since its admission in 1997, Burma has continuously embarrassed ASEAN by breaking one pledge after another to make progress on national reconciliation and the transition to a civilian government. In the absence of a functional regional human rights mechanism, when Burma signs the ASEAN Charter at this Summit, we urge all ASEAN Member states to take immediate action against Burma for its violation of human rights. We call on ASEAN to do more to urgently protect the rights of Burmese people as citizens of ASEAN.

In particular, we urge you to convey a strong message to the Burmese junta on behalf of ASEAN to outline the steps the SPDC must take immediately, including:

* Release all political detainees and prisoners and account for all “disappeared” persons;
* Embark on serious, structured, and time-bound negotiations with opposition parties and ethnic groups to create democratic, civilian rule as soon as possible;
* Cease all violations of international humanitarian law in the conflict with ethnic minorities;
*
Cease restrictions on humanitarian aid and the activities of UN agencies and international NGOs in Burma.

In addition, ASEAN itself should take firm action to encourage needed reforms in Burma and improve human rights protection, including as follows:

* Support UN Security Council resolutions calling for sanctions or other collective action to address the crisis in Burma;
* In the absence of Security Council-imposed sanctions, ASEAN (along with its member countries) should act to impose targeted sanctions to encourage an end to ongoing repression:
o Ban new investment and prohibit the importation of select products, such as gems and timber, from Burma;
o Prohibit business partnerships with or payments to entities owned or controlled by the Burmese military, or whose revenues are largely used to finance military operations (as opposed to social spending).
* Implement an ASEAN arms embargo on Burma;
* Support the work of the UN Special Rapporteur on the situation of human rights in Burma to investigate human rights abuses committed during and after the August and September protests;
* In line with the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers ensure the protection and fundamental rights of migrant workers from Burma, particularly in Thailand, Malaysia, and Singapore.

For too long, ASEAN Summits have been viewed merely as “talk shops” at which little is done substantively to resolve the urgent human rights and other issues affecting ASEAN’s people.

ASEAN now has a real opportunity to set an example for other regions of the world on how a human rights mechanism can function effectively to protect human rights. We would hope ASEAN can provide a model in implementing an effective regional human rights mechanism.

Yours sincerely,

Brad Adams
Executive Director
Asia Division

Cc: Foreign Ministers, ASEAN Member States

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{FOI} – A civil rebuttal

CSOs plan to send united response to secretariat

TODAY, 16 Nov 2007

Ansley Ng
ansley@mediacorp.com.sg

WHILE the stage has been set for Association of South-east Asian Nations (Asean) leaders to ink their historic charter next Tuesday, civil society organisations (CSOs) are working on a point-by-point rebuttal of the charter.

Today has learnt that a coalition of about 100 CSOs from around the region is drafting a united response, and it plans to release details at a press conference next week — when the Asean Summit is in full swing.

Addressing many of the 55 articles in the charter, the rebuttal will be handed to the Asean Secretariat after the charter is signed by all 10 member-states.

In a draft copy of their comments obtained by Today, the Solidarity for Asian People’s Advocacy (Sapa) Working Group on Asean criticises the fuzzy nature of the charter and its “motherhood statements”.

“Much is left to further interpretation and how it is going to be concretely operationalised in Asean,” the draft read.

CSOs have been dissatisfied with how the charter — the final draft of which was leaked last week — did not delve into technical details of issues they have been fighting for, such as migrant workers’ rights.

The original plan had been to submit their rebuttal to the Asean Secretariat before the start of the summit. But, with many in the coalition wanting to have a say, the process was delayed, Today understands.

Sapa, however, does not intend to take its protests to another level — so, there will not likely be a repeat of the demonstrations by activists seen here at last year’s World Bank-International Monetary Fund meets.

“We are engaging Asean and its members. We are in a dialogue now and confrontation won’t be of any help,” said Mr Sinapan Samydorai, president of the Singapore-based Think Centre, which is coordinating the group effort.

The Asean Charter is a milestone in the regional grouping’s 40-year history that marks its evolution from a loose, informal body to a rules-based organisation.

In August, when he delivered the Asean Day lecture, Prime Minister Lee Hsien Loong had said the charter had to be a document all member countries could realistically agree to sign.

Responding to one activist’s remarks that key recommendations by civil society and an advisory group on the protection of human rights had been watered down or left out of the draft charter, Mr Lee had pointed out: “It cannot compel the countries to do things which they do not want to agree to in the first place.”

Nevertheless, some CSOs are vexed that despite having given their feedback over the past year as the charter was being drawn up, their suggestions were not taken.

Two of the grouses: The document does not mention CSO involvement and is vague on human rights. Under Article 14, two paragraphs state the setting up of a human rights body that will operate in accordance with terms of references to be determined at the Asean Foreign Ministers meeting.

Mr Sinapan said while the charter’s first two articles — spelling out Asean’s principles and purpose — were satisfactory, many parts were “loose and left to the future”.

“They should mention the mechanism within which civil societies would operate … There should be a chapter saying that civil societies would be consulted when it comes to issues of human rights, migration and labour,” he added.

Mr Anselmo Lee, the executive director of Forum Asia, a Bangkok-based CSO, noted: “They should say the human rights body should be independent and effective. But the wording is very general.”

Are CSOs being unrealistic in some of their expectations?

Political watcher Bilveer Singh, of the department of political science at the National University of Singapore, thinks so.

“To expect the Asean Charter to work around the CSOs of some countries is being unrealistic. Asean is already burdened with the need to reach a consensus acceptable to all the countries,” he said.

“Now comes an external body … already the two paragraphs on human rights are a concession.”

What CSOs can do now, said Dr Singh, is to continue working on the Asean People’s Charter that they are drawing up as a symbolic alternative to the official one. According to Mr Sinapan, it will be ready by the end of next year.

Dr Singh said this should be accompanied by continued lobbying in their respective countries without making themselves out to be a “parallel authority”.

“The role of a CSO is to be a pressure group. The legitimacy will only be successful if they can play a constructive role,” he added.