Monthly Archives: September 2019

Press Release Bincang ASEAN: “Challenges for Civil Society Advocacy on Human Rights in the Next Decade”

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Yogyakarta, 30th September 2019
Written by Robbaita Zahra

Yogyakarta – On Friday, 27th of September 2019, ASEAN Studies Center Universitas Gadjah Mada held Bincang ASEAN with the theme of “Challenges for Civil Society Advocacy on Human Rights in the Next Decade”, bringing Ms. Yuyun Wahyuningrum, the Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR) as the speaker.

The discussion started with the elaboration of human rights regime analysis by Donnelly, which consists of: Declaratory, Promotional, Implementation, and Enforcement. Declaratory regime is when a state declare whether or not it acknowledges human rights. Promotional regime refers to the engagement of states in activities such as exchange of information, technical assistance, and other processes where human rights are discussed. A state can be said to be in implementation regime if it has concluded legally binding documents on human rights.  Enforcement is when a State has enforced human rights accordingly. Ms. Yuyun stated that Indonesia is currently in promotional regime going to implementation regime.

Further, the discussion continued with discussing international law. It is important to discuss international law when talking about human rights as it puts state as the main actor of human rights (produce, enforce, monitor). In this context, State has 2 identities: as the offender and protector of human rights. The balance between these identities have to be seen to determine whether or not a State is respecting human rights. However, this dual identity makes the relation between State and international human rights law complicated.

Moving to the discussion about the context and regionalism in ASEAN. Ms. Yuyun explained that ASEAN countries, which previously only discussed about politics and economy, are forced to discuss about human rights within this new regionalism context. There are 3 reasons of State creating regional human rights mechanisms: 1) As the expression of modernity; 2) Compared to international mechanism, regional mechanism is more likely to discuss issues within Southeast Asia; and 3) As the intermediary between national and international system.

 After the Universal Declaration of Human Rights, all countries in the world domesticate human rights into their constitutions, including ASEAN countries. Despite this fact, human rights are not included in the establishment of ASEAN. The reasoning behind this is because countries in Southeast Asia do not want to be disturbed by the competition that is happening within the Cold War. However, this does not mean that human rights are not discussed at all in ASEAN. It has to be noted that ASEAN is home for diversities, different from for example EU – which is supranational. Therefore, in talking about human rights, ASEAN has to be careful because it cannot replace the state’s role as the protector of human rights.

With regard to ASEAN human rights system, one of the main part of this is ASEAN Intergovernmental Commission on Human Rights (AICHR), which has the function to protect and promote human rights. Ms. Yuyun then proceed to discuss the challenges for civil society. Regional human rights framework in ASEAN is the product of the combination between ASEAN Way, international human rights law, and national interest of ASEAN member states. With this context in mind, the challenges for civil society are: 1) Lack of independency of the AICHR Representatives; 2) Lack of transparency of AICHR’s work; 3) Lack of interest of AICHR Representatives to engage with CSOs; 4) Lack of recognition from AICHR on the role of CSOs/Stakeholders; 5) Lack of member states’ political will to integrate human rights fully in ASEAN regionalism project; 5) Lack of ability and capacity to protect human rights; and 6) Lack of people awareness about its role.

Despite these challenges, AICHR has obtained several achievements during Ms. Yuyun’s period, such as the adoption of ‘Minus X Formula’, meaning that which countries are ready to participate in any scheme, they can go ahead while members who are not ready could join in later. This has opened several discussions which are not being able to be held before due to the difficulty to reach consensus from all member states. Another achievement is the agreement to conclude ‘Recommendation on the Implementation of ASEAN Human Rights Declaration’, successful briefing on Rakhine Crisis, and other various achievements. However, none of these achievements are coming from the request of the people, which is aiming at the protection of human rights. Nonetheless, this can be the starting point of doing so.

Lastly, the discussion ended with a question and answer session. Within this session, Ms. Yuyun explained that the deficit of democracy within countries in Southeast Asia has influenced the development and the dynamic of AICHR. She also explained that knowledge regarding the dynamic of culture and tradition are essential in ASEAN. However, many institutions are not aware of this fact. Therefore, AICHR tries to respond with this by establishing practice, concluding internal documents as future references, and engaging with civil society and students in various countries in ASEAN. This Bincang ASEAN is one of the manifestations of this practice.

ASEAN Agreement on E-Commerce: What It Tries to Tackle

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By Robbaita Zahra

The OECD defines e-commerce as “the sale or purchase of goods or services, conducted over computer networks by methods specifically designed for the purpose of receiving or placing orders. The goods and services are ordered by those methods, but the payment and ultimate delivery of the goods or services do not have to be conducted online”. It is no doubt that this area serves as a strong interest in ASEAN as it holds much economic promise. Through technology, the costs of production can be reduced, which later encourages the growth of new business and advances communication. ASEAN has been a platform for Southeast Asia countries to integrate efforts and efficiency in terms of economic cooperation as embodied in one of the three pillars of ASEAN which is ASEAN Economic Community. To reach its vision of a regionally integrated economy, electronic commerce can be viewed as one of an instrumental component in this matter. With the rapid growth of technology and industry, e-commerce in ASEAN countries has grown rapidly and significantly within these past few years. In Indonesia, Malaysia, the Philippines, Singapore, Thailand and Vietnam, retail e-commerce has a total market size of US$7 billion. Countries in the ASEAN region also are the fastest-growing internet markets, with approximately 330 million internet users.According to research conducted by Google and Temasek, the size of the Internet-based economy of ASEAN could reach a size of $240 billion by 2025.

In line with this development, the ASEAN Agreement on Electronic Commerce was signed on 12 November 2018, on the sidelines of the 33rd ASEAN Summit and Related Meetings, making ASEAN as the first region in the world to have an e-commerce agreement. This agreement is part of the implementation of the ASEAN Work Programme on Electronic Commerce 2017-2025. The objectives of this agreement are to facilitate cross-border e-commerce transactions, contribute to creating an environment of trust and confidence in the use of e-commerce, and deepen cooperation among ASEAN member states to further develop and intensify the use of e-commerce to drive economic growth and social development in the region.

 Why Is It Necessary?

This agreement comprises of member states’ commitment to cooperate and collaborate with regards to electronic commerce, so that businesses–especially small and medium-sized enterprises–in the ASEAN countries can be enhanced more efficiently. Each country shall have the commitment to maintain or adopt as soon as practicable, laws and regulations governing electronic transactions. Relevant measures in each countries which contribute to the increase of trust and certainty for business operating in the region are also required to be published as promptly as possible. Moreover, ASEAN members acknowledge the importance of efficient cross-border logistic. Therefore, through this Agreement, lower costs and improvement of speed and reliability of supply chains in cross-border e-commerce are essential to be implemented. With this, it is expected to improve the accessibility of rural areas to online marketplaces.

With regards to facilitating cross-border e-commerce, it provides several mechanisms which shall be implemented, such as paperless trading between businesses and authorities which are encouraged to be used, the acknowledgment of legal validity of electronic authentication and electronic signatures, and the recognition of cross-border transfer of information by electronic means.

Further, another area of this agreement that needs to be highlighted is in terms of consumer protection. It is true, that with e-commerce, consumers are able to have more options and variety of products and services. However, engaging in a transaction in electronic commerce provides several inherent risks, such as unsecured online payments, product unsafety, and inaccessible dispute settlement. Lack of trust in online transaction are also usually become one of the problems faced with regards to consumers in e-commerce. Therefore, under this agreement, consumers engaging in electronic commerce are supposedly be given the same protection as given to consumers of other forms of commerce under each respective countries. Transaction security, cyber security and personal data protection shall be accorded to the consumers to ensure consumer protection. Dispute settlement mechanism is also regulated in this Agreement, giving more certainty and a degree of trust for the consumers.

However, despite the existence of this Agreement, each member states have to give common efforts to support the development of regional e-commerce, including but not limited to enacting the necessary laws and regulations on electronic commerce. The ASEAN Agreement on E-Commerce provides a starting point which can be seen as a common reference framework guiding the enactment of domestic laws and regulations in the respective ASEAN jurisdictions. Not only enacting the needed legal frameworks, enforcement of those legal frameworks are also critical in enhancing the implementation of e-commerce.

Last but not least, aside from adopting the legal framework, it is also needed to keep developing the technology as the basis of e-commerce itself; such as telecommunication infrastructure, user-friendly online payment systems, and efficient distribution networks. For without the advancement and innovation of technology, the region’s economic condition might not be as progressive as it is right now.

Robbaita Zahra is currently a Program-Intern in ASEAN Studies Center Universitas Gadjah Mada