REVIEW AICHR TOR: WHAT OPPORTUNITIES FOR CSO?Yuyun Wahyuningrum

Senior Advisor on ASEAN and Human Rights

HUMAN RIGHTS WORKING GROUP (HRWG)

wahyuningrum@gmail.com

What we aim with the review? • It is the time when we can work together to make AICHR

as an INDEPENDENT HUMAN RIGHTS MECHANISM by changing the selection process of AICHR

• To make AICHR accessible by pushing the body to finalize a democratic guideline on engaging civil society, including receiving complaints on human rights and sharing information to public

• To make AICHR a responsive body by changing its mandate to be be able to respond the issues by having a fact-finding mission, investigation

TOR AICHR & Its TimelinesJuly 2008 HLP was

established

Dec 2008, First

Submission

July 2009 Final

Submission

Oct 2009 Launched

TOR AICHR

2014 Review

TOR

Protection of HRs

Promotion of HRs

technical assistance

advisory services

standard setting

Dissemination and education

Consult with national, regional, and international inst, and entities concerned with hrs protection and promotion

Obtain Information

Civil Society Involvement during and after the drafting of TOR AICHR

TOR AICHR

1st Consultation in Manila, Sept

2008

2nd Consultation in Kuala

Lumpur, March 2009

3rd Consultation in Jakarta, July

2009

Annual Report of AICHR

Performance

Monitoring & Pressure for

the implementation of TOR AICHR

Review 2014?

What to Review? Suggestion from the Cha-Am Declaration

• Objective of the Review: to strengthen the mandate and functions of the AICHR in order to further develop mechanisms on both the protection and promotion of human rights. • Indicator 1: Has AICHR provide an ASEAN’s commitment to pursue

forward-looking strategies to strengthen regional cooperation on human rights?

• Indicator 2: Has AICHR serve as a vehicle for progressive social development and justice, the full realization of human dignity and the attainment of a higher quality of life for ASEAN peoples?

• Indicator 3: Has AICHR receive full support and provision of adequate resources by ASEAN Member States?

• Indicator 4: Has AICHR acknowledge contribution of stakeholders in the promotion and protection of human rights in ASEAN, and encourage their continuing engagement and dialogue with the AICHR?

• Indicator 5: Has ASEAN cooperation on human rights support the evolution of AICHR as an overarching institution?

What to Review? Purpose of AICHR• To promote and protect human rights and fundamental freedoms of the peoples of

ASEAN; • To uphold the right of the peoples of ASEAN to live in peace, dignity and prosperity; • To contribute to the realisation of the purposes of ASEAN as set out in the ASEAN

Charter in order to promote stability and harmony in the region, friendship and cooperation among ASEAN Member States, as well as the well-being, livelihood, welfare and participation of ASEAN peoples in the ASEAN Community building process;

• To promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities;

• To enhance regional cooperation with a view to complementing national and international efforts on the promotion and protection of human rights; and

• To uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties.

What To Review?: Mandate AICHR• 4.1 To develop strategies for the promotion and

protection of human rights and fundamental freedoms to complement the building of the ASEAN Community;

• 4.2 To develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN Conventions and other instruments dealing with human rights;

• 4.3 To enhance public awareness of human rights among the peoples of ASEAN through education, research and dissemination of information;

• 4.4 To promote capacity building for the effective implementation of international human rights treaty obligations undertaken by ASEAN Member States;

What To Review?: Mandate AICHR• 4.5 To encourage ASEAN Member States to consider acceding to and ratifying

international human rights instruments; • 4.6 To promote the full implementation of ASEAN instruments related to human

rights; • 4.7 To provide advisory services and technical assistance on human rights

matters to ASEAN Sectoral Bodies upon request; • 4.8 To engage in dialogue and consultation with other ASEAN Bodies and Entities • 4.9 To consult, as may be appropriate, with other national, regional and

international institutions and entities concerned with the promotion and protection of human rights;

• 4.10 To obtain information from ASEAN Member States on the promotion and protection of human rights;

• 4.11 To develop common approaches and positions on human rights matters of interest to ASEAN;

• 4.12 To prepare studies on thematic issues of human rights in ASEAN; • 4.13 To submit an annual report on its activities, or other reports if deemed

necessary, to the ASEAN Foreign Ministers Meeting; and • 4.14 To perform any other task as maybe assigned to it by the ASEAN Foreign

Ministers Meeting.

What to review? AICHR’s 5-Year Work Plan

• See other document (PDF)

What CSO’s opportunity?• Article 9.6 = AICHR’s Terms of Reference will be reviewed

by the ASEAN Foreign Ministers Meeting (in 2014).• AICHR shall assess its works and submit

recommendations for the consideration of the Foreign Ministers.

• Indonesia will take a lead on TOR review together with Singapore and Thailand.

• It is likely that AMM will establish a working group to review the TOR comprising the representative from ten countries.

• Civil society can submit their analysis, assessment and recommendations to this working group as well as to AICHR.

Strategy: Simultaneous Approaches

Top Down: Creation of demand in regional level through regional organizations. ASEAN secretariat ASEAN

Representatives/Bodies International Institutions

Bottom Up: Pushing for need of making ASEAN HR Mechanism through civil society advocacy. Individual member countries CSOs/NGOs (Nat & Regional)

ASEAN HUMAN RIGHTS: Credible,

Accessible, Responsive, Independent

Regional Lobby,

Network &

Advocacy

National Lobby,

Network, Advocacy

& Campaign

Recommendation• AICHR should function as human rights monitoring body, which

supplement and complement the national and international systems, by having the following mandate:• On-site visits to investigate and report on the human rights situation in member

states; • Effective response to emergency situations; • Appointment of independent special rapporteurs, working groups etc. as may be

needed.• Consideration and investigation of individual complaints in respect of alleged

human rights violations by member states. • Publication and dissemination of reports and decisions. AICHR, and not another

decision-making body of the regional organisation, should decide whether and what to publish.

• Transparency and accountability should be the norm and to be institutionalised in a mechanism in AICHR.

• Interaction with civil society organisations, national human rights institutions, and other international mechanisms with a human rights agenda.

• Encourage inter-state communication and reporting on human rights.

Recommendation• The emerging good practices for human rights institutionalisation in ASEAN,

such as the Human Rights Dialogue that was initiated by Indonesia in 2013, the Retreat to discuss human rights issues during AICHR regular session that was initiated by Brunei Darussalam, the visit of prison that was introduced by Thailand and the possible practice to observe court, need proper and positive follow-up internally in AICHR.

• AICHR members must be composed of independent and impartial experts. The independence and impartiality of the members must be guaranteed through the confirmation hearings and election in an open and transparent manner, for example by a panel, which may consist of the parliamentary body, representative of civil society, think tank/ university, national human rights institution and the government; privileges and immunities and proper procedures for the removal of members.

• AICHR members must be broadly representative of the region in terms of gender, legal systems, language and geography.

Recommendation• The retreat was occurred during the 12th AICHR’s meeting in Jakarta, May 2013. AICHR allocated

two hours retreat to discuss specific issues related to the human rights of Rohingya in Myanmar and the missing activist, Sombath Somphone of Laos.

• AICHR should take necessary measure to ensure that ASEAN exercise its responsibility to ensure the continuing effectiveness of the supervisory bodies that they establish, in consultation with civil society. The regional organisation has to provide the secretariats of the supervisory bodies with adequate resources. The members should control the appointment of key staff.

• In long term, AICHR should consider to provide recommendation to ASEAN Foreign Ministers to establish human rights court to hear cases as referred to it by the relevant human rights monitoring body, member states or individuals. In a system where a human rights monitoring body exists, individuals or their representatives should have the power to refer cases to the court after consideration by the human rights monitoring body. The court should have contentious as well as advisory jurisdiction.

• AICHR needs to focus its next three years to gain recognition from the rest of ASEAN bodies and organs as the overarching body in the region deal with human rights with proper engagement and substantive cooperation. For this purpose, AICHR have to to invite them to series of meetings and identify human rights gaps, interests and needs for cooperation. More importantly, AICHR should ensure that alignments and cooperation with ACWC and ACMW will be materialized.