NTS Alert June 2010 (Issue 1)

RESERVING THE RIGHT NOT TO COMPLY: ASEAN LEGAL RESERVATIONS TO CRC AND CEDAW

Contents: Introduction ASEAN and CEDAW ASEAN and CRC Conclusion The NTS Alert Team Mely Caballero-Anthony and Priyanka Bhalla. Consortium of NTS Studies in Asia Centre for NTS Studies

Introduction

The ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) was formally inaugurated on 7 April 2010. Its inception has generated interest and measured expectations among the international community, ASEAN member states and civil society organisations working on issues related to the protection of women and children. It is viewed by some as a more effective regional protection mechanism compared to the ASEAN Intergovernmental Commission on Human Rights (AICHR), which was inaugurated amidst greater attention in October 2009. The AICHR has already received criticism for being a ‘toothless’ commission thanks to its mandate of not including a formal complaint mechanism or a direct link to international treaty bodies. The ACWC does not have a formal complaint mechanism either, but it does have a Terms Of Reference (TOR) which is more explicitly linked to the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). However, before asking the question as to whether ACWC will be an effective body for the protection of women and children in the region or contemplating how ACWC and AICHR may work together, it is important to analyse the current state of women’s and children’s protection frameworks in the Southeast Asia region.

This Alert aims to analyse and provide an overview of the status of individual ASEAN member states’ commitments and reservations to the CRC and CEDAW. It will highlight these legal developments in an effort to improve the protection framework for women and children in the region.

Table 1: ASEAN commitments to women and children

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ASEAN and CEDAW

The 1975 World Conference of International Women’s Year, in Mexico City, called for a convention on the elimination of discrimination against women. Organised lobbying and activism for such an international legal treatise had been ongoing since the creation of the Commission on the Status of Women since 1946. However, the cause gained significant momentum, at an international level, in the 1970s. The successful result was CEDAW, which came into force on 3 September 1981, with 20 state parties ratifiying it at the time. Today, CEDAW has 186 state parties.

However, simply being a party to the Convention does not provide the whole picture. States are sometimes signatories to legal treatises but they have not ratified them. In addition, they can also hold reservations on certain articles of the legal treatise. When a state party has ratified a convention, rather than just signing onto it, it means the state party officially confirms and approves of the document. When a state party places reservations on certain articles of CEDAW it means that the state is ‘excluding or modifying’ the legal effect of the article it is placing a reservation on. In Article 2 (1d) of the 1969 Vienna Convention on the Law of Treaties, it is stated:

Reservation means a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect or certain provisions of their treaty in their application to that state.

According to CEDAW Article 2, any state party that ratifies the Convention commits to implement the following measures:

• To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle
• To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women
• To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination
• To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation
• To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise
• To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women
• To repeal all national penal provisions which constitute discrimination against women

In the case of ASEAN member states, all ten countries have ratified CEDAW; however, seven of them hold reservations, of which, four of them, Brunei Darussalam, Malaysia, Singapore and Thailand, hold reservations on substantive articles.

Article 17 of CEDAW established the Committee on the Elimination of Discrimination Against Women, which examines the progress of the Convention’s implementation. This Committee is allowed to make recommendations based on the reports it receives from state parties. In 1998, the Committee stressed that Article 2, which describes how discrimination against women is to be eliminated and Article 16, which talks about discrimination within marriage and the family structure, are two of CEDAW’s core provisions.

Table 2: Status of ratification and reservation for CEDAW among ASEAN member states

*a: Formal acceptance of a treaty, international convention or formal agreement between states
Source: UNIFEM chart dated 29 April 2010 ‘CEDAW and its Optional Protocol Ratification in the ASEAN’ and Office of the High Commissioner for Human Rights (OHCHR)

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It is important to outline substantive reservations made by ASEAN member states, as it has a significant impact on national legislation related to women’s human rights and protection concerns. Brunei Darussalam and Malaysia have largely made their reservations for religious reasons, citing that there should not be conflict with the implementation of Sharia law in their countries. Brunei Darussalam states:

The Government of Brunei Darussalam expresses its reservations regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the official religion of Brunei Darussalam.

Malaysia has the most reservations in CEDAW, compared to all other ASEAN member states. It currently has reservations on the following articles:

Article 5a, which speaks of modifying ‘social and cultural patterns of conduct of men and women’ in order to reduce prejudice, discrimination and any ideas related to ‘inferiority or superiority of either of the sexes’ or stereotypes on men and women

Article 7b, which expresses that states should do everything in their means to encourage equal participation of women in the political and public policy arena

Article 9(2) which grants women equal rights to men in regard to the nationality of their children

Article 11(1) describes measures states should take to eliminate discrimination against women in the field of employment. Article 11(2) spells out measures in order to prevent discrimination against women ‘on the grounds of marriage and maternity and to ensure their effective right to work’.

Article 16(a) says that state parties should take appropriate measures to ensure that women have the same right to enter into a marriage as men. Article 16(c) says that the same should apply in the rights and responsibilities during marriage and its dissolution. Article 16(f) applies to having the same rights and responsibilities ‘with regard to guardianship, wardship, trusteeship and adoption of children’. Article 16(g) says that women should have the same personal rights as men, including ‘the right to choose a family name, a profession and an occupation’. Article 16(2) states that all state parties shall take all necessary action to develop and implement legislation, which specifies a minimum age for marriage and makes the registration of marriages in an official registry obligatory.

In 1998, Malaysia partially withdrew some of its reservations, including Article 2(f), which says that states should take all necessary measures to modify or abolish all existing legislation, customs and practices which reflect discrimination against women; Article 9(1) which states that women and men have equal rights to acquire, change or retain their nationality; Article 16(b) stating that men and women should decide freely on who his/her spouse will be; Article 16(d), that men and women have the same parental rights when raising children; 16(e) which says that women and men should decide freely on the number of children they choose to have; and 16(h) according to which men and women have the same rights in regard to property ownership.

Since then it has not withdrawn any other reservations, but like Brunei Darussalam, Malaysia stated in its original reservations:

The Government of Malaysia declares that Malaysia’s accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Sharia law and the Federal Constitution of Malaysia.

Singapore has made an effort to withdraw some of its reservations and did report a partial withdrawal in 2007 (please click here for the full text). However, like in Brunei Darussalam and Malaysia, Singapore cites religious freedom as a reason for reservations. The only difference is that Singapore does not practise Sharia law and is specifically referring to religious freedom among its minority groups. It states:

In the context of Singapore’s multi-racial and multi-religious society and the need to respect the freedom of minorities to practice their religious and personal laws, the Republic of Singapore reserves the right not to apply the provisions of articles 2 and 16 where compliance with these provisions would be contrary to their religious and personal laws.

Thailand cites slightly different reasons for its reservations, when compared to Brunei Darussalam, Malaysia and Singapore. ‘National security’ rather than religious concerns is of utmost concern to Thailand. Thailand states

In all matters which concern national security, maintenance of public order and service or employment in the military or paramilitary forces, the Royal Thai Government reserves its right to apply the provisions of the Convention on the Elimination of all forms of Discrimination against Women, in particular articles 7 and 10, only within the limits established by national laws, regulations and practices.

It should be noted that reservations do not reflect the breadth of legal commitments, or lack thereof, made by an ASEAN member state. For instance, Thailand may have substantive reservations, but it has also signed and ratified the optional protocol to CEDAW, which entered into force on 22 December 2000. The optional protocol recognises the CEDAW committee as a legal body which can receive and process complaints from individuals and groups. According to the UN Division for the Advancement of Women, the protocol contains two procedures for the CEDAW committee:

(1) A communications procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the Committee. The Protocol establishes that in order for individual communications to be admitted for consideration by the Committee, a number of criteria must be met, including those domestic remedies must have been exhausted. (2) The Protocol also creates an inquiry procedure enabling the Committee to initiate inquiries into situations of grave or systematic violations of women’s rights. In either case, States must be party to the Convention and the Protocol. The Protocol includes an "opt-out clause", allowing States upon ratification or accession to declare that they do not accept the inquiry procedure. Article 17 of the Protocol explicitly provides that no reservations may be entered to its terms.

Indonesia and Cambodia have also signed on to the optional protocol, whereas the Philippines has signed and ratified it.

Similarly, Myanmar may have no substantive reservations, but it has also not signed and ratified the optional protocol. In addition, in the latest concluding observations of the CEDAW committee on Myanmar’ s progress report (7 November 2008), the committee remarked:

The Committee expressed its deep concern at the high prevalence of sexual and other forms of violence, including rape, perpetrated by members of the armed forces against rural ethnic women, including Shan, Mon, Karen, Palaung and Chin women. The Committee is also concerned at the apparent impunity of the perpetrators of such violence – although few cases have been prosecuted – and at the reports of threats against and intimidation and punishment of the victims.

Of the ASEAN member states, Laos presented its progress report before the CEDAW Committee in August 2009. Vietnam has started writing its progress report at the request of the Committee, whereas Thailand, the Philippines and Singapore are scheduled to submit their reports soon. Cambodia and Indonesia have already submitted their reports (OHCHR and UNIFEM). Besides CEDAW, the other international treaty ratified by all ASEAN member states is the CRC. How does this reflect upon the implementation effectiveness of regional protection mechanisms for children?

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ASEAN and CRC

The CRC is the most widely ratified international treaty but also one with the most reservations. It came into force in 1989 and was the first legally binding Convention to ‘affirm human rights for all children’ (United Nations Children Fund or UNICEF).  According to Dan Seymour, Chief of the Gender and Rights Unit of UNICEF’s Policy and Practice Division, CRC’s three fundamental strengths (UNICEF, June 2009, http://www.unicef.org/rightsite/237.htm) are:

• First, it is a legal instrument, defining unequivocally the responsibilities of governments to children within their jurisdiction.
• Second, it is a framework for the duties borne by different actors at different levels of society to respond to the rights of children, and it helps us understand the knowledge, skills, resources or authority needed to fulfil those duties.
• Third, it is an ethical statement, both reflecting and building upon core human values about our commitment to collectively provide the world’s children with the best we have to give.

As in the case of CEDAW, all ASEAN member states have ratified CRC. However, the same four ASEAN states, Brunei Darussalam, Malaysia, Singapore and Thailand, which hold substantive reservations on CEDAW articles, also hold substantive reservations on CRC articles. Associate Professor Suzannah Linton writes: ‘The effect of these catch-all reservations is to allow each of these states a fall-back whenever they do not wish to comply with a CRC obligation to amend laws or practices that are incompatible’ (Human Rights Quarterly, 2008).

The CRC also has two optional protocols, the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), which came into force on 18 January 2002, and the Optional Protocol on Children in Armed Conflict (OPAC), which came into force on 12 February 2002. All ASEAN member states have signed on to OPAC, except Malaysia and Brunei Darussalam. Only Thailand, Cambodia, Indonesia, Lao People’s Democratic Republic, Indonesia and Thailand have signed onto the OPSC.

Table 3: Status of ratification and reservation for CRC among ASEAN member states

*a: Formal acceptance of a treaty, international convention or formal agreement between states
Source:  ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed ASEAN Commission on Women and Children’ by Suzannah Linton (Human Rights Quarterly 2008); Office of the High Commissioner for Human Rights (OHCHR); Presentation by East Asia and Pacific UNICEF Regional Office (April 2009)

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In the case of Brunei Darussalam, its reservations are largely due to its ‘Constitution, Islam, State and Religion’ (Linton 2008). For Malaysia the reasons are similar and are related to its ‘Constitution, National laws, National Policies’ (Linton 2008). For Singapore, it is connected to its ‘Existing Socio-Political Situation, Domestic Law, State’ (Linton 2008).

Despite the reservations these ASEAN states have placed on CRC articles, it does not mean that they have not been working towards withdrawing these reservations or improving the implementation of certain articles domestically. For example, the UNICEF East Asia and Pacific Regional Office stated in a presentation on April 29, 2009 that Singapore had made good progress. According to Singapore’s second and third periodic report to the Committee on the Rights of the Child (established by Article 43 in CRC) on 6 January 2009, it has established Children Care Courts in 2008 and made amendments to its Penal Code (Chapter 224) to enhance protection of young persons against exploitation for commercial sex in Singapore. Singapore’s Penal Code (Chapter 224) has 511 sections and is the country’s main document for criminal legislation (for more information, please see point number 20 in this document).  In addition, Singapore’s Children and Young Persons Act (January 2009) is currently under review in order to add further protective and rehabilitative measures.

Similarly, when Malaysia presented its report to the Committee on the Rights of the Child on 25 January 2007, the Malaysian delegate expressed that Malaysia would be working on the withdrawal of its reservation from Article 37, outlawing caning and whipping. In addition the delegate said that Malaysia does have an internal time frame for the removal of reservations and that ‘it was not for lack of interest or lack of concern about the issues raised in the various human rights conventions, but the difficulty of preparing Malaysian law to be in conformity with them’ (Linton 2008).

In a recent interview with Dr Saisuree Chutikul (13 May 2010), Thai ACWC Commissioner, Dr Chutikul stated that Thailand was working further on better implementing CRC Article 7 (right to name and nationality) within its national context. The meaning of the word ‘nationality’ has recently been discussed between the National Security Council and the Ministry of Foreign Affairs. The conclusions shall soon be presented to the National CRC Committee, where talks on Thailand’s potential removal of its reservation to Article 7, can continue. Journalist Nattha Keenapan reported last year: ‘The current Nationality Act grants Thai nationality to those born to non-Thai parents in Thailand before 26 February 1992. Children born after the date can also apply for Thai nationality, but it is granted on a case-by-case basis’ (Bangkok Post, 2009). If the Thai Nationality Act is amended in such a way that all children born in Thailand after February 1992 are eligible for nationality, it will reduce statelessness and make birth registration more effective.

In Thailand we have seen some efforts, the Child Protection Act of 2003 and the Domestic Violence Act of 2007. The combination of these two acts is quite strong. However, the real problem lies in developing plans for implementation. In the case of the Child Protection Act, there are not enough trained competent officials, lawyers do not know the Act very well and children do not know their rights. The same can be said for the Domestic Violence Act. The police are not being trained adequately and the inclusion of female police personnel has been sidelined.  In the Domestic Violence Act itself, there is a strong focus on mediation, which would continue contact between the perpetrator and the victim and not address the power dynamics, placing the child in a difficult position. Ms Amanda Bissex, Chief, Child Protection Unit, UNICEF Thailand

Despite a regional lack of implementation, there is evidence of ASEAN member states signing national legislations into force and creating bodies that address protection related cases for women and children. In addition there have been efforts among a myriad of actors, such as national NGOs and international organisations, working in collaboration with national governments, to raise awareness and conduct training for individuals both at the policy level and on the ground, with police personnel, social workers, healthcare workers, lawyers and counsellors. What are the positive aspects of these efforts at the national level? The next issue of this Alert shall examine some of these domestic efforts, particularly in the context of Indonesia and the Philippines.

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Conclusion

It is well-known among policy, academic, think tank and civil society sectors that all ASEAN members have ratified CEDAW and CRC. However, it is less well-known that some of the states have substantive reservations. While it is easy to complain about the lack of implementation, it is much more difficult to consistently raise awareness, provide training and institutionalise behaviour change, which in this case, will positively impact protection measures for women and children.

At the regional level, aside from bilateral agreements between states…there are also a variety of ASEAN mechanisms which are relevant and could be used to address the above concerns such as the ASEAN Summit, the ASEAN Coordinating Council (ACC), the three Community Councils, the ASEAN Secretariat and the three human rights mechanisms including the AICHR, ACWC, and ACMW. The ASEAN Declaration on Migrant Workers, the Declaration of Elimination of Violence Against Women, the Declaration against Trafficking and the Mekong Memorandum of Understanding on Natural Resource Management and Trafficking are all relevant mechanisms in the region which should be implemented effectively. Ms Wathshlah G Naidu, Programme Officer, International Women’s Rights Action Watch Asia-Pacific (IWRAW)

Could this be an agenda that AICHR and ACWC could pursue together – raising awareness on CEDAW and CRC reservations, encouraging a concerted regional effort to withdraw reservations, and creating a common regional stance on protection frameworks for women and children? Besides AICHR and ACWC, there may be other regional entry points to improve the level of implementation of legal frameworks for women’s and children’s protection. An upcoming NTS Insight will examine the terms of reference of both AICHR and ACWC and make recommendations for areas where both bodies can effectively work together.

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References

Concluding observations of CEDAW Committee on Myanmar, 7 November 2008. Available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/603/49/PDF/N0860349.pdf?OpenElement

Consultation Paper on the Proposed Penal Code Amendments, Singapore Ministry of Home Affairs, 8 November 2006. Available at http://app.reach.gov.sg/Data/adm05%5Cc276%5Cp3683%5CPenal%20Code%20-%20Consultation%20Paper.pdf

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Available at http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

Convention on the Rights of the Child (CRC). Available at http://www2.ohchr.org/english/law/crc.htm

Hwa Song, Jung, ‘ASEAN’s New Human Rights Commission: “Toothless Tiger” or Catalyst for Change’, Foreign Policy Digest, January 2010.

‘International Standards on Domestic Violence Legislation and a Review of ASEAN Laws’, UNIFEM Southeast Asia Regional Office, 2010.

Keenapan, Nattha, ‘The stateless classroom’, Bangkok Post, 23 June 2009.

Linton, Suzannah, ‘ASEAN States, Their Reservations to Human Rights Treaties and the Proposed Commission on Women and Children, Human Rights Quarterly 30, pp. 436–493, 2008.

Office of the High Commissioner for Human Rights (OHCHR), Status of Ratifications and Declarations. Available at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en

Singapore 2nd and 3rd Periodic Report to the Committee on the Rights of the Child, 6 January 2009. Available at www2.ohchr.org/english/bodies/crc/docs/CRC.C.SGP.3.doc

Telephone interview with Ms Amanda Bissex, Chief, Child Protection Unit, UNICEF Thailand, May 2010.

Telephone interview with Dr Saisuree Chutikul, ACWC Commissioner, Thailand, May 2010.

Written communication with Ms Wathshlah Naidu, Programme Officer, International Women’s Rights Action Watch Asia-Pacific (IWRAW), May 2010.

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