Nukht Statement 2006

(Northeast Asian Human Rights Defenders Statement 2006)

First Human Rights Defenders� Forum in Northeast Asia
(HRDF-NEA)
Nukht, Mongolia, 16-20 August 2006

"Promoting Economic, Social and Cultural Rights and the Right to Development - Strengthening the Role of Human Rights Defenders in Northeast Asia"

(final draft, 28 Aug 2006)

Introduction
Human Rights Challenges in Mongolia
Revisiting ESC Rights in the Changing Socio-Economic Context of Northeast Asia
Promoting a Human Right-based Approach to Official Development Assistance (ODA)
Strengthening the Role of Human Rights Defenders
Recommendations
 To All Governments in Northeast Asia
 To the UN Human Rights Council
 To the UN Office of High-Commissioner for Human Rights (OHCHR)
 To National Human Rights Institutions (NHRIs)
 To Human Rights Defenders and Civil Society Actors

Introduction

1. We, more than 55 participants from the Northeast Asia sub-region gathered at the first Northeast Asia Human Rights Defenders� Forum (NEA-HRDF) jointly organised by FORUM-ASIA and CHRD ; in Nukht, suburb of Ulaanbaatar, in Mongolia, from 16 to 20 August 2006, to conduct comparative reviews of the human right situation in these countries and to reflect on the role of civil society and human rights organizations, under the theme of �Promoting Economic, Social and Cultural Rights and the Right to Development: Strengthening the Role of Human Rights Defenders in Northeast Asia�.

2. The participants of this Forum come from various backgrounds- civil society organizations, NGOs, community-based organisations, academia, national human rights institutions, UN Agencies, and the government. This multi-stakeholder dialogue is seen by us as an important process in understanding and strategising on the human rights agenda.

3. The Forum was an agenda-setting and coalition-building process for human rights defenders in NEA; to enable them to build a common platform for the promotion and protection of human rights. It provided an opportunity for human rights defenders (HRDs) in Northeast Asia to share their experiences and struggles and to learn lessons from each other. This also helped to strengthen the role of the HRDs in the spirit of Asian solidarity in the face of crosscutting challenges to human rights, peace, development and democracy in the region.

4. The Forum aimed to develop common perspectives and strategies on protecting and promoting human rights, including economic, social and cultural (ESC) rights, through the human rights-based approach to development (RBA) where relevant. Participants also stressed the importance of peace as the foundation of the promotion and protection of human rights and the realization of human development in the context of the escalating political tensions among countries in the region.

5. The double anniversaries which will take place in 2008 � 60th anniversary of Universal Declaration of Human Rights (UDHR) and the 10th anniversary of the UN Declaration on Human Rights Defenders will represent both a challenge and an opportunity for HRDs in Northeast Asia to advance human rights within the civil society as well as among governments in the region.

Human Rights Challenges in Mongolia

6. We welcome the National Human Rights Action Plan (NHRAP) approved by the Mongolian Parliament in October 2003. We further welcome the fact that the Mongolian government has become the first in the world to adopt a new Millennium Development Goal (MDG) Nine to �strengthen human rights and foster democratic governance�.

7. There is great need for such high level commitments. However, they will be meaningful only if they are accompanied by concrete actions on the ground. There is a striking gap between the rhetorical promise of the government and the human rights situation on the ground. Many human rights challenges are intrinsically linked to the free market-oriented economic reforms pursued since the beginning of the 1990s such as the privatisation of public enterprises and land, the liberalisation of trade and investment, and structural adjustment programmes.

8. It is evident from their results that such reforms were pursued with little consideration for human rights. We note with concern the poor living conditions of the most vulnerable, with 36% of the total population now living under the official poverty line. Income disparity has widened. The number of the unemployed, homeless, working and street children continue to grow, despite the large amount of foreign aid received (Mongolia ranks among the top 5 countries in the world in the amount of foreign aid received per capita).

9. We have noted that foreign aid has so far been virtually ineffective in combating poverty and other violations of ESC rights, due to the lack of transparency in aid coordination, official development assistance (ODA) and the programmes of international financial institutions (IFIs), deficiencies in the public administration system and widespread abuse of public office, which results in very little aid reaching target communities.

10. In particular, we are deeply concerned by the serious damage to the environment and the livelihoods of many herding families caused by the mining activities of foreign and domestic companies. The damage caused includes: the drying up of water resources; the creation of large-scale excavation sites which leave many toxic substances exposed following the termination of mining activities; the creation of a shadow industry of informal mining in which dangerous work is performed, among others, by children; and degraded pastureland, which threatens the economic livelihoods, traditional lifestyles and culture and values of herding communities. Herding families are forced to migrate to cities and join the informal sectors which lead to expanding urban poverty. In the cities, denial of city registration severely impairs their enjoyment of their economic and social rights including their right to housing, food/water, education, and health.

11. Negative impacts of market-driven economic reform are not confined to ESC rights. Access to justice is increasingly limited due to expensive private legal services, misuse of government-allocated funds for legal aid services for the poor and lack of judiciary independence as well as the absence of a practice in public interest litigation.

12. We also note that high incidence of extreme poverty and lack of adequately-paid jobs has forced many to leave the country in search of work opportunities in other countries. These documented and undocumented migrant workers are vulnerable to various forms of human rights violations and discrimination. They are also the targets of human traffickers. Yet, the Mongolian government does not protect the fundamental rights of its citizens who have migrated abroad, or those who are victims of human traffickers. We call on the Mongolian government, and all other governments in Northeast Asia to ratify and implement the provisions of the Migrant Workers� Convention as well as ratify the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women And Children in order to be able to get support from other countries in the prosecution of traffickers and protection of victims. All victims of human traffickers should have access to effective protection.

13. Despite all, civil society in Mongolia is determined to respond to those human rights challenges and urges the government to ensure transparency and accountability by adopting RBA in its development planning.

Revisiting ESC Rights in the Changing Socio-economic Context of Northeast Asia

14. In relation to ESC rights, we affirm that �the dignity of an individual cannot be divided into two spheres � that of civil and political and of economic, social and cultural rights. The individual must be able to enjoy freedom from want as well as freedom from fear. The ultimate goal of ensuring respect for the dignity of an individual cannot be achieved without that person enjoying all of his or her rights�.

15. We recognize that transborder and internal migration is prevalent in most countries of NEA region and often, the rights of migrant workers are abused. Many migrant workers, particularly those who are in an undocumented or irregular situation, are vulnerable to exploitation; many do not even enjoy the minimum rights guaranteed in the Migrant Workers� Convention. This can and often does lead to serious human rights abuses in the context of trafficking and to the existence of forced labour practices akin to slavery.

16. In Mainland China, Hong Kong SAR and Mongolia, undue restriction of the right to freedom of movement is another major challenge that undermines human rights. People are caught in the bureaucratic hurdles of deregistration from one place to registration in another or lack of consistency and coordination within government�s internal policies and legislations. This can lead to people being subject to discrimination and lacking a secure legal status in the place of their residence and employment, and to the human rights violations that flow from such an insecure status.

17. Poverty remains one of the biggest challenges in Northeast Asia. As well as qualifying in some circumstances as a human rights violation on its own, extreme poverty can also lead to other human rights violations such as denial of equal access to justice. The poor in both rural and urban areas lack access to health, adequate housing, education and social security; this is exacerbated when the individual is also a member of a further vulnerable or marginalized group such as women, children or ethnic minorities. In particular, violations of the right to housing are especially acute across sub region and lead in addition to serious violations of other human rights.

18. Ongoing food shortages in North Korea as well as the lack of accurate data on the conditions across the country seriously hamper efforts to protect and promote ESC rights of North Koreans including the right to food, especially of the most vulnerable populations. The rights-based approach, with its emphasis on participation, empowerment and accountability, can be used as an effective tool for collaboration among civil society actors in the human rights, humanitarian aid and development communities who are working to alleviate the current situation of the prolonged crisis and persistent violations of human rights in North Korea.

19. We note with concern that conflicts or humanitarian crisis have also created refugees and internally displaced persons (IDPs) in the region. In particular, we are concerned that individuals and communities are being forcibly evicted from their land, whether for reasons of conflict or development, into a situation of internal displacement. Many IDPs are poor and otherwise vulnerable to abuse and exploitation. Lack of recognition and specific government policies to promote and protect the rights of IDPs and refugees are a serious concern in Northeast Asia and are an obstacle to the promotion and protection of all human rights of these groups, including their ESC rights.

20. We regret that the implementation of international human rights standards, particularly on ESC rights, are seen as purely �promotional� and �aspirational� in many national jurisdictions in Northeast Asia. We note that many courts in the sub-region are reluctant to apply international human rights standards in the administration of justice. Equal access to justice is restricted in Northeast Asia, including because of the lack of sufficient and effective legal aid to those in need.

21. There is need to establish a regular and sustainable international forum or process in Northeast Asia through which governments can address collectively common human rights challenges, in consultation with civil society, exchange lessons and good practices, and support the key institutions that protect human rights, such as the judiciary national human rights commissions, and national development planning authorities. In this regard, we call on the three new member states of the Human Rights Council (HRC) � China, Japan and South Korea � to uphold their commitments to human rights protection, and to implement the pledges that they made in advance of their election to this body. As members of the HRC, these states have a particular responsibility to uphold the highest standards of human rights protection within their own countries and promote human rights in the region and globally.

Promoting a Human Right-based Approach to Official Development Assistance (ODA)

22. The human rights-based approach to development (RBA) is based on the Universal Declaration of Human Rights (UDHR), with its focus on �human dignity�, and the 1986 UN Declaration on the Right to Development, which affirms that �the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development�. The objective of the RBA is the realisation of human rights as laid down in the UDHR and other international human rights instruments through participatory processes.

23. Recognizing the primacy of the human person, therefore, the RBA means that all programmes of development cooperation, policies and technical assistance should further the realisation of human rights. It highlights the importance of protecting the right of all persons to information and to effective participation at all stages of the development process. In this way, the human rights framework gives specificity to the concept of empowerment.

24. Applying the framework of human rights to the concept and delivery of aid, in particular, official development assistance (ODA) is useful and effective because that framework provides for legally enforceable rights (claims that rights-holders can make of duty-bearers), that are holistic, people-centred, non-discriminatory and focus on vulnerable and marginalised groups.

25. The delivery of aid should aim therefore to enable the individual enjoyment and exercise of all human rights, particularly but not limited to the rights to adequate food and water, housing, healthcare, and education. We believe that, as the central subject of development, the individual beneficiary is the primary entity to whom accountability is owed in the process and delivery of ODA. While economic growth is one facet of development, we do not believe that it should be privileged over the human rights and human dignity of the beneficiary population.

26. We urge that states should integrate binding human rights standards in their international relations; including in trade and investment, ODA and in their participation in multilateral fora.

27. The human rights community in Asia is increasingly interested in issues of development, including foreign aid assistance provided to countries either bilaterally or multilaterally. Now, more than ever, we see the negative effects of ill conceived development projects and the misallocation and misuse of aid. These include forced evictions, environmental degradation, and growing inequalities within countries as a result of corruption and the leakage of development aid for the unknown uses. The human rights implications of this are stark, and are felt most forcefully by vulnerable or disadvantaged groups such as children, women, indigenous communities, ethnic minorities, and communities of non-citizens such as migrant workers and refugees.

28. In relation to countries in Northeast Asia that are donor countries or emerging donor countries, we are concerned that ODA is being used by donors primarily as just another facet of their international relations, aimed strategically for instance at enhancing international influence or influencing policies of the recipient state, rather than ensuring that aid is used to protect human rights and alleviate the situation of poverty in which so many vulnerable individuals live in Asia but also in other parts of the world. Further, we are concerned that some of the development aid granted by donor countries may even exacerbate poverty and widen disparities in recipient countries. The recent trend of aid diversion to the �counter-terrorist measures� after the events of September 11 remains an issue of concern

29. ODA is misallocated by donor countries in many cases because of unclear priorities within the government and limited or inadequate consultation with NGOs and civil society. As a consequence, much of the aid allocated and applied is seen as overly donor driven, and does not fulfill the criteria of the RBA, most importantly because of a critical lack of participation of the beneficiaries of this aid.

30. In relation to recipient countries, we are concerned at high levels of corruption within governments that leads to leakage of aid, and the misuse of aid itself (such as inappropriate procurement or projects being targeted for political gains). Unclear and overlapping mandates within and between ministries of the recipient government leads to misdirection of aid. In addition, repeated failures to consult adequately with the beneficiary population also leads to ODA being misdirected or being unsustainable in its effects and in some cases even leads to human rights violations.

31. We are also concerned that recipient states appear to believe that their only responsibility in terms of accountability is to the donor country; to provide financial accounting for fund and aid received in kind. Very little accountability is provided to the beneficiaries themselves, either directly or through consultation with NGOs and community-based organizations who are mandated to represent the beneficiaries of this aid. In this regard, it is important that NGOs and communities in both donor and recipient countries strengthen their common networks so that they are able to look at the human rights impact of ODA holistically.

32. States are not the only actors involved in policy formulation and implementation related to development and human rights. Non-state actors such as international financial institutions (IFIs) have a significant impact on the development policies of states. However we note with concern that the policies of IFIs can lead directly or indirectly to human rights violations, and create an enabling environment for the state to construct abusive policies. For instance we are particularly concerned about forced evictions and displacement as a result of large scale infrastructure projects such as dams, roads, football stadiums, etc.

33. Finally, we urge all actors involved in human development to remember that they all retain obligations to promote, protect, respect and fulfill human rights. They are all accountable at some level to the individual beneficiaries for ensuring that rights are not violated during any phase of development - conceptualization, programming, implementation and evaluation. This net of accountability also extends to the civil society community. We reiterate that international human rights standards provide a set of minimum standards against which to hold duty-bearers to account.

Strengthening the Role of Human Rights Defenders (HRDs)

34. We reviewed the concept of HRDs, UN Declaration on HRDs and the specific mandate of the UN Special Representative of Secretary General on the situation of the HRDs (SRSG on HRDs). We believe that the Declaration and special mechanism can be an effective tool to advance ESC rights in the region if it is fully understood and utilised.

35. We also regret that no legislative or administrative measures have been taken to incorporate the Declaration of participants� countries under domestic law as States are obliged to do under Article 3 of the Declaration.

36. We note with concern that no government in the sub-region has extended an invitation to the SRSG on HRDs to visit its country except Mongolia which has issued a standing invitation to all special procedures. We were also concerned with the delay or lack of timely response of our governments to communications sent by the SRSG. on HRDs

37. The newly established Human Rights Council (HRC) poses challenges and opportunities for HRDs in the region. China, Japan, and South Korea, together with other Asian members of the HRC, have a collective obligation to promote the UN Declaration on HRDs and have an important role to play in creating an effective regional human rights mechanism in accordance with international human rights standards. In order to make them accountable to their pledges and this obligation, HRDs must engage strategically with them through vigilant monitoring and advocacy at home and at the HRC..

38. Like other countries in Asia, many HRDs in the sub-region have been working at very great risks to their personal safety and security. HRDs at the forefront of the struggle to achieve ESC rights in Northeast Asia have often experienced arbitrary detention, torture, enforced or involuntary disappearance and even extra-judiciary killing.

39. Women human rights defenders (WHRD) deserve special attention in terms of protection and empowerment as they suffer severe multiple exclusion and discrimination under oppressive cultures of patriarchy in the sub-region. Women�s rights and the inter-sectionality of women�s human rights violations should be given due regard in dealing with issues of disempowerment of vulnerable groups including women in Northeast Asia as highlighted in the international consultation on WHRD in Colombo from 29 November to 2 December 2005.

40. We affirm the role of national human rights institutions (NHRIs) as �Defenders of HRDs.� NHRIs can and should be a strategic partner for cooperation in protecting and advancing ESC rights as well as capacity-building in areas of monitoring, investigation and redress. While enhancing cooperation between NHRIs in Mongolia and South Korea, the early establishment of NHRIs that meet the �Paris Principles� on NHRIs adopted by the UN General Assembly in 1993 in the other countries should be a priority in the sub-region.

Recommendations:

41. In view of the above reflections and findings,

To Governments in Northeast Asia:

We urge all governments in Northeast Asia to:

a) Create a conducive peaceful environment for the further promotion of human rights by resolving the issues related to nuclear weapons and remilitarization, and to establish a collective security and peace building mechanism in the sub-region;
b) Initiate the establishment of a regular inter-governmental forum where common human rights issues can be addressed in consultation with civil society organizations and that can be a step toward a regional human rights mechanism;
c) Support the creation of a sub-regional office of OHCHR to facilitate coordination among governments in their efforts to improve human rights situation in accordance with their international human rights obligations and to promote a RBA;
d) Ratify, without reservations and as soon as possible all the core human rights treaties and their optional protocols, the Rome Statutes of the International Criminal Court, and other relevant human rights conventions to which they are not already a party, especially the UN Migrant Workers� Convention;
e) Implement the relevant concluding observations of human rights treaty bodies, in particular, Committee on Economic, Social and Cultural Rights (CESCR) and recommendations of special procedures including the SRSG on HRDs and Special Rapporteur on North Korea;
f) Develop, in consultation with civil society, and implement effectively a national human rights action plan if they have not already done so;
g) (For China, Japan and South Korea) Extend a standing invitation to all special procedures mandate holders and to visit them, in particular, SRSG on HRDs and all special procedures relating to ESC rights;
h) Promote cooperation within the sub-region in the full realization of the Millennium Declaration, in particular Goal 8 of the MDGs, and other commitments made at UN world conferences and (for Mongolia) vigorously implement MDG 9 on human rights and democratic governance;
i) Collaborate actively in promoting the development of legally-binding corporate accountability agreements based on international human rights standards and principles with appropriate monitoring mechanisms for transnational corporations;
j) Implement the �Basic Principles and Guidelines on Development-based Evictions and Displacement� developed by UN Special Rapporteur on Adequate Housing in dealing with eviction issues;
k) Ensure independence of the judiciary and NHRIs, in particular the appointment of office bearers, and to establish NHRIs if they have not done so;
l) Develop a genuine partnership with civil society and HRDs in realizing human rights and the right to development.

In relation to ODA,
m) Fully integrate the human rights-based approach to development (RBA) in all relevant laws, policies and programmes;
n) (Japan, Korea as well as China as donors and Mongolia as recipient countries) Review their foreign aid policies with a view to fully integrating RBA in all their aid policies and practices;
o) Make more efforts to integrate a gender perspective at all levels from ODA policy from formulation, budgeting, implementation to monitoring and evaluation.

In relation to Human Rights Defenders(HRDs)
a) Undertake public awareness and education programmes on the UN Declaration on HRDs including publication of the Declaration in local languages;
b) Undertake all necessary measures to ensure conformity of national laws/decrees/rules/orders pursuant to Article 3 and other relevant articles of the Declaration at national level;
c) Ensure respect for the opinions/directions/orders/advises of the national human rights institutions (NHRIs) for the protection of HRDs;
d) respond to the communications of the SRSG on HRDs as well as other special procedures as promptly as possible.

To the United Nations Human Rights Council

We call upon the Human Rights Council (HRC), particularly the Asian Member States, to:

a) Strengthen the special procedure mechanisms, in particular, mandate of SRSG on HRDs and provide all necessary political support and material assistance for the full implementation of the UN Declaration on HRDs;
b) Take concrete actions to fulfill their often repeated pledges to establish a regional mechanism for the protection of human rights;
c) Move expeditiously to establish the modalities for the Universal Periodic Review, which should complement the conclusions and recommendations of the human rights treaty bodies and special procedures without duplicating them, and ensure strong civil society participation;
d) Ensure the protection of the rights and freedoms of human rights defenders, wherever they are, as guaranteed under various international law instruments, and regardless of political demarcations.

To the United Nations Office of the High Commissioner on Human Rights

We call upon the Office of the High Commissioner on Human Rights (OHCHR) to

e) Strengthen its presence and role both through country presences as well as through a sub-regional office in Northeast Asia;
f) Improve its capacity to respond effectively to communications about human rights violations, especially of HRDs;
g) Undertake public awareness, education programmes and capacity-building programmes for governments and HRDs about international human rights standards, especially the UN Declaration on HRDs, the standards on the right to adequate housing, trafficking, the rights of migrant workers, and corresponding protection mechanisms;
h) Actively encourage the Governments of the region to comply with their reporting obligations under the human rights treaties, particularly International Covenant on Economic, Social and Cultural Rights (ICESCR), and help them to better understand and implement the concluding observations of the corresponding Committees;
i) (OHCHR in cooperation with UNDP and other relevant agencies) promote RBA more actively in the region;
j) Study the implications of the collapse of the Doha Development Round, engage WTO in consideration of future steps to be taken in this regard, and continue to examine and act upon the human rights implications of free trade agreements (FTA) both bilateral and regional in Asia;
k) Identify the safeguards necessary to protect the specific rights provided under the treaties, and only then proceed to consider the possible unification of the treaty bodies;
l) (particularly through its field presences) Actively assist states in the protection of ESC rights, in the light of increasing trends towards privatization of social services and liberalization of trade and investment. It should also actively encourage compliance with reporting obligations under the human rights treaties particularly CESCR.

To National Human Rights Institutions:

We call upon the national human rights institutions (NHRIs) to:

a) Undertake awareness-raising and education programmes on the UN Declaration on HRDs, nationally and internationally in the region;
b) Recognise the role of HRDs by institutionalising a mechanism which will facilitate regular consultations with HRDs on NHRIs programmes, as well as promote the Declaration on HRDs in regional and international platforms;
c) Set up special desks or task forces for the protection of HRDs and the implementation of the UN Declaration on HRDs at the national level; NHRIs should develop mechanisms for greater cooperation with SRSG on HRDs including automatic referrals of complaint cases from HRDs to the SRSG on HRDs;
d) Monitor and support state authorities to implement the recommendations made by the SRSG on HRDs, and other special procedures and UN Treaty monitoring bodies;
e) Encourage governments to ensure that national laws relating to NGOs and civil society organizations comply with the UN Declaration on HRDs;
f) Investigate effectively all violations of economic, social and cultural rights and intervene with the courts where possible to provide legal protection of these rights;
g) Play a role in promoting RBA and strengthen sub regional and international cooperation;
h) (For the existing NHRIs in Mongolia and South Korea) Assist the creation of NHRIs in other countries in Northeast Asia in cooperation with the Asia-Pacific Forum of National Human Rights Institutions (APF).

To Human Rights Defenders and Civil Society Actors:

We commit ourselves in partnership with all human rights defenders and civil society actors in Northeast Asia to:

a) Develop partnerships with the UN and governments in the realization of the Millennium Declaration, based on mutual respect and with a common commitment to upholding human rights;
b) Utilize UN instruments and mechanisms in advocating the cause of human rights, human dignity, sustainable development and gender equality;
c) Promote dialogue for mutual understanding and cooperation between human rights and development NGO community nationally and internationally in advancing ESC rights and promoting RBA;
d) Engage with SRSG on HRDs in protecting the HRDs and promote the effective implementation of the UN Declaration on HRDs at the national and regional levels;
e) Monitor proactively the performance of three Northeast Asian member states of the Human Rights Council - China, Japan and South Korea;
f) Promote women�s rights and their inter-sectionality as well as gender-sensitivity and take up human rights issues which are not adequately addressed by the government, NHRIs and the wider community such as human rights violations based on sexual orientation and gender identity;
g) Be more vigilant about our own values, practices and behaviour, and our independence from governments and the corporate sector, in order to internalize RBA to our work, ensuring accountability in our organizations and to the people whom we serve.

Contact Persons
� Anselmo Lee, Executive Director, FORUM-ASIA / anselmo@forum-asia.org
� Uranstooj Gombosuren, Director, CHRD/ uranstooj@mongolnet.mn

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