Foreign Ministers from ten countries of the Association of Southeast Asian Nations (ASEAN) will meet in New York on September 27 to review the ASEAN Human Rights Declaration (AHRD), which is currently the controversial second draft.
On September 25, the Asian Forum for Human Rights and Development (Forum Asia) and Solidarity for Asian People's Advocacy Task Force on ASEAN and Human Rights delivered a statement before the Human Rights Council in Geneva, which called the draft version of the ASEAN Declaration seriously flawed for being discriminatory and in violation of the commonly held principle of human rights being inalienable.
Throughout the drafting of the Declaration, the ASEAN Intergovernmental Commission on Human Rights (AICHR) has been sharply criticized for several reasons: limiting civil society participation by rushing the drafting process, curbing the diversity of civil society voices by excluding many groups denied official registration and legal recognition by their governments for work as human rights defenders, lacking transparency by not sharing drafts of the Declaration with civil society groups or indicating if civil society recommendations were being incorporated into the drafts, and excluding marginalized groups requiring human rights protections, including LGBT people.
AICHR which comprises representatives from each of the ten ASEAN countries was mandated in 2008 under the ASEAN Human Rights Charter to develop a "framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights." Among AICHR's members, tasked with giving the region its first set of guidelines for ensuring human rights, are high level government officials including Vietnam's director of foreign affairs, Brunei's chief justice of the sharia high court, the Philippines ambassador to Japan, Singapore's senior district judge for subordinate courts, as well as two activists from Thailand and Indonesia, and a lawyer from the Malaysia Human Rights Commission.
The ASEAN Intergovernmental Commission on Human Rights makes decisions by consensus, which has created stalemates on decisions about excluding "public morality" as a caveat for suspending human rights and including LGBT people's rights. According to the summary record of the Commission's convening in the Philippines on September 12, Sriprapha Petcharamesree, Thailand's representative gave assurances that if consensus was not possible, they would use the formulation of the Universal Declaration of Human Rights (UDHR). " We will not go lower than the Universal Declaration," she said. In contrast, Bounkeut Sangsomsak, the representative from Lao, insisted that they "should not simply be a copy the Universal Declaration but take into consideration the diversity and realities of the ten ASEAN member countries."
LGBT rights advocates in the region , working to make the Declaration truly "people-centric" are concerned that in the absence of explicit reference to sexual orientation and gender identity (SOGI) in the Universal Declaration, the drafters of the ASEAN Declaration will omit LGBT rights. The activists are urging that the AHRD also be based on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), which include sexual orientation and gender identity as protected categories. All ASEAN countries, have signed these two treaties and are obligated to promote the principles of equality they mandate.
The drafters of the AICHR are out of step with developments in the broader human rights arena. They have missed the opportunity to adopt a progressive vision of human rights. Instead, they have blamed religion and culture for holding back its commitment to recognizing that all human beings have human rights and that LGBT rights are human rights.
The decision to omit sexual orientation and gender identity from the ASEAN Declaration signals lack of concern for marginalized communities who suffer horrendous violence because of their sexual orientation and gender identity and have no avenues of legal recourse for widespread and institutionalized discrimination. Those individuals from religious minority groups that have noisily demonized LGBT people and spread intolerance in the name of religion do not represent the majority in their countries, nor do they represent the majority point of view of all religions. Most people in the ASEAN countries do not want LGBT people to suffer from violence, discrimination, hatred and intolerance.
The meeting of the ASEAN Ministers precedes a convening of Commonwealth Foreign Ministers on September 29 in New York. Four ASEAN countries are part of the Commonwealth (formerly colonized by Britain) -- Brunei, Malaysia and Singapore, the strongest opponents to including sexual orientation and gender identity in the ASEAN Declaration. Burma, also a Commonwealth nation is silent on the rights of lesbian, gay, bisexual and transgender (LGBT) people.
There is still time to right a wrong. And now is the time to do it. Non-discrimination, non-violence, and equal protection of the law are critical for the well being of all people in Asia including LGBT people. The Foreign Ministers of the ASEAN need to reject the current draft of the Declaration and insist that it be inclusive and truly representative of the diversity of ASEAN societies. It needs to reflect the voices of hundreds of civil society groups who have asked for the inclusion of sexual orientation and gender identity as a protected category in the ASEAN Human Rights Declaration before it is adopted in November 2012.
Grace Poore is Regional Program coordinator for Asia and Pacific Islands, International Gay and Lesbian Human Rights Commission. She may be reached at gpoore@IGLHRC.org