AICHR TERMS OF REFERENCE REVIEW AND THE DEVELOPMENT OF HUMAN RIGHTS PROTECTION IN ASEAN

Yuyun WahyuningrumSenior Advisor on ASEAN and Human RightsHuman Rights Working Group (Indonesia)E: wahyuningrum@gmail.com

30 June 2014

Review and Amendment of the AICHR’s Terms of Reference (TOR)

To review the TOR• Para 9.6 stipulates, “This TOR shall be

initially reviewed five years after its entry into force. This review and subsequent reviews shall be undertaken by the ASEAN Foreign Ministers Meeting, with a view to further enhancing the promotion and protection of human rights within ASEAN.”

• Para 9.7. “the AICHR shall assess its work and submit recommendations for the consideration of the ASEAN Foreign Ministers Meeting on future efforts that could be undertaken in the promotion and protection of human rights within ASEAN consistent with the principles and purposes of the ASEAN Charter and this TOR”

To amend the TOR• Para 9.2. “Any Member State may

submit a formal request for an amendment of this TOR”.

• Para 9.3. “The request for amendment shall be considered by the Committee of Permanent Representatives to ASEAN in consultation with the AICHR, and presented to the ASEAN Foreign Ministers Meeting for approval.”

• Para 9.4. “Such amendments shall enter into force upon the approval of the ASEAN Foreign Ministers Meeting.”

• Para 9.5. “Such amendments shall not prejudice the rights and obligations arising from or based on this TOR before or up to the date of such amendments.”

Cha-am Hua-Hin Declaration on the Intergovernmental Commission on Human Rights

• Paragraph 7: • “...the TOR of the AICHR shall be reviewed every five

years after its entry into force to strengthen the mandate and functions of the AICHR in order to further develop mechanisms on both the protection and promotion of human rights. This review and subsequent reviews shall be undertaken by the ASEAN Foreign Ministers Meeting.”

REVIEW versus AMENDMENT

Review

• The Review will be conducted by ASEAN Foreign Ministers Meeting

• The Purpose of the Review is to further enhancing the promotion and protection of human rights within ASEAN

• AICHR should a) assess its work and b) submit the recommendations for the consideration of ASEAN Ministers Meeting

Amendment

• It is the Member State that may submit a formal request for an amendment of the TOR

• CPR should discuss the request in consultation with the AICHR, and present it to the ASEAN Foreign Ministers Meeting for approval

• Amendments shall enter into force upon the approval of the ASEAN Foreign Ministers Meeting

CSO’s Role in the TOR’s Review and Amendment

AICHR AMM

CPRMember States

CSO

Date/Venue AICHR’s Plan What CSO can do8-9 March 2014, Jakarta

AICHR Special Meeting on Assessing TOR Review

Submit CSO’s assessment on the work of AICHR

28 April 2014, Jakarta

Consultation with stakeholders on the review of the TOR of AICHR

29 April 2014, Jakarta

Consultation with ASEAN with CSOs Participate. Inputs.Each country will have 5 representatives

27-28 June 2014, Bangkok

Regional Consultation with other Regional Human Rights Commissions, UN, CSOs, & human rights experts

Inputs to the respective invitees

10-11 July, Singapore

Special AICHR Meeting – to consolidate input from consultations and finalize the AICHR submission to ASEAN Foreign Ministers Meeting

Inputs to the respective invitees

3-8 August 2014, NPT

47th ASEAN Foreign Ministers’ Meeting Inputs to AMM

8 August 2014, NPT

AICHR meets AMM on TOR Review

Timeline in AICHR

What we don’t know now• What AICHR going to include in their proposal to AMM in

term of assessment and recommendation for the review?• Whether AICHR going to share their note to public?• What recommendation to be included and not by AMM?• Modalities in AMM

• AMM may establish a High Level Panel/Working Group• AMM may appoint SOM to do the review• AMM may revert it back to AICHR

• The Timeline?

CSO’s Assessment during the 1st AICHR Consultation, 29/04 & 28-29/06, 2014

• Lack of protection mandate and absence of dedicated secretariat with human rights expertise are the main hindrances to AICHR’s work.

• Furthermore, AICHR has not been able to perform its functions regarding the• Establishment of institutionalized relationship with stakeholders including the

civil society and NHRIs (Art. 4.8, and 4.9), • Collection of information on the promotion and protection of human rights by

ASEAN member-states (Art. 4.10), • Lobby ASEAN member-states on ratification or accession to international

human rights conventions (Art. 4.5), • Full implementation of the ASEAN human rights-related instruments (Art. 4.6), • Advisory and technical assistance to ASEAN sectoral bodies (Art. 4.7), and • Development of common approaches and position on human rights (Art. 4.11);

CSO’s Assessment during the 1st AICHR Consultation, 29 April 2014

• There has been a contradiction between the international definition of the principles of rule of law, good governance, respect for fundamental freedoms, sovereignty and the non-interference doctrine, on the one hand, and their formulation in ASEAN documents on the other hand.

• The continuing lack of respect for human rights and impunity has undermined the effort to make the ASEAN human rights standards at par with the international standards;

• Inaccessibility at both national and regional levels create gaps in the understanding of the role of regional human rights mechanisms in ASEAN;

• Lack of transparency in the work of AICHR;• Dominance of appointed representatives, rather than those domestically

selected, that contributes to the lack of independence of AICHR.

CSO/NHRI Recommendations• Widening the existing mandates, emphasizing on protection• Creatively interpret the current mandates• AICHR to strengthening the national mechanisms on human rights –

AICHR should consider NHRI as partner• Establishing complaint mechanisms, precautionary measures,

country visits, country peer-reviews; and having communication strategy and alliance with the media

• Guidelines - for the AHRD, and Guiding observations to the TOR interpretation

• Work closely with parliamentarians to encourage the ratification and acceding the international standards

• Institutional stakeholders’ engagements, more dialogue with key actors: CSO, NHRI, UN agencies

• More transparency, accountability, respect freedom of information

CSO/NHRI Recommendations• Make the rights of vulnerable groups prominent in its

programs;• Give more attention to inter-generational rights regarding

sustainable development;• Make its website accessible to persons with disabilities or

migrant workers;• Raise the awareness of the people in ASEAN and have more

training activities involving stakeholders;• Engage civil society more actively in the decision-making

process, and open space for stakeholder participation at the national and regional levels;

• Adopt creative ways to overcome the difficulty of having a consensus;

History CSO Advocacy in ASEANWithin all limitation in ASEAN: History of civil society engagement with ASEAN. It is

a journey of believing that engagement can make change.

History of national political opening contribute to the political space at regional level.

History of democracy movements in ASEAN countries. The opening political spaces at the national level impact the situation at the regional level.

History of interaction between national and international efforts and dialogue on human rights.

Journey of believing that a human rights commission can be created in context of the region with no respect of values of democracy and human rights.

AICHR after five years

• The creation of AICHR is a step towards cooperation on human rights. It demonstrates that ASEAN integration is not always about economic cooperation.

• Generate human rights debates in ASEAN• Generate civil society movement on human rights

in ASEAN, both thematic-based or general issues• Generate interests from other neighbor sub-region

to establish similar mechanisms• Generate cooperation and dialogue on human

rights between ASEAN and its dialogue partners

AICHR after five years• Human Rights Dialogue (25 June 2013): Government of Indonesia invited

AICHR Representatives on Human Rights Dialogue to hear its report on human rights situation, its challenges and possible with AICHR in the future. The Government of Thailand has agreed to be the State to Report to AICHR on its human rights situation in August 2014

• AICHR-CPR joint-collaboration to have a public discussion during the 46th ASEAN Anniversary (August 2013) in ASEAN Secretariat in Jakarta taking the theme “Community Building through the Implementation of the ASEAN Human Rights Declaration (AHRD)”

• AICHR Thailand initiative on visiting Klongprem Central Prison (November 2013) to observe detention and treatment of female, child and undocumented migrants facilities

• Held a retreat in May 2013 to talk about country’s human rights situation: Laos

(on S. Somphone) and Myanmar (on Rohingya).

AICHR after five years• AICHR Indonesia’s initiative to hold the annual Jakarta Human Rights

Dialogue as a venue for human rights stakeholders to discuss different topics on human rights: ASEAN Charter review and its implication to human rights architecture (2012), prevention of torture (2013) and death penalty (2014). Thailand will host similar initiative in November 2014 on Bangkok Human Rights Dialogue with the theme on access to justice.

• AICHR’s Stakeholders meetings/consultations took place from 2012-2014

• (On-going) AICHR Guideline in engaging civil society groups.

• Studies: CSR and human rights, migration and human rights, right to peace, trafficking in persons

• Country Visit 2014 – Indonesia• Engagement with International and regional human rights institutions

AICHR after five years• Generated more discussion in both bilateral and multilateral relations

among states in ASEAN and also with Dialogue Partners as well as among civil society in the region.

• Civil society groups are more organized in addressing issues both generally or thematically on human rights, especially to voice for the voiceless, promote social cohesion and equality, strengthen social capacities, advocate for ASEAN reform, ensure that ASEAN is accountable, and act as an important check-and-balance for the promotion and protection of human rights in the region.

• The growing activism of civil society organisations has been contesting the ASEAN’s way of human rights socialisation, especially on holding non-interference and the rejection to the inclusion of self-determination in AHRD.

• The space/platform to debate human rights publicly in the region is gradually opened up

CSO Platforms in engaging ASEAN in the last ten years

Name frequent Engaging the bodyACSC/APF annually ASEAN SUMMIT Head of

States/Governments

ASEAN Disability Forum (ADF) annually

ASEAN Youth Forum annually

ASEAN Grass-root People Assembly annually

ASEAN Community Dialogue annually ASEAN Committee Permanent Representatives (CPR)

CPR

Civil Society Forum to AMM on human rights

annually ASEAN Ministers Meeting (AMM) Foreign Ministers

Informal Dialogue between CSO and ASG

annually ASEAN Secretary General (ASG) Secretary General

Jakarta Human Rights Dialogue in ASEAN

annually ASEAN Human Rights Mechanisms

AICHR, ACWC

GO-NGO Forum on Social Welfare & Development

annually ASEAN Senior Official Meeting on SWD

SOM officials