Opportunities for Civil Society in AICHR TOR Review & Amendment

1. Opportunities for Civil Society in AICHR TOR Review & Amendment Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights, Human Rights Working Group, e-mail: wahyuningrum@gmail.com ASEAN Civil Society Conference/ASEAN People Forum 2014, Myanmar Convention Center, Yangon 21-23 March 2014

2. AICHR’s Terms of Reference (TOR) on the review • 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.” • Who can review TOR AICHR? ASEAN Foreign Ministers Meeting • What is the objective of the review? 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” • What AICHR should do? To a) assess its work and b) submit the recommendations for the consideration of ASEAN Ministers Meeting

3. Review: to consider something in order to make changes to it, give an opinion on it or study it • We expect that the review will lead to amend, add, omit some Paragraphs in the TOR AICHR • But what TOR AICHR say about amendment?

4. AICHR’s Terms of Reference (TOR) on Amendment • 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.”

5. REVIEW versus AMENDMENT Review 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 • 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

6. IMPORTANT ADVOCACY TARGET IN TOR REVIEW and AMENDMENT

7. Calendar

8. Assessment • AICHR has been conceived as a regional human rights mechanism and at the same time a political body to promote human rights in the region. It is therefore AICHR is expected to • provide a forward looking strategy to strengthen regional cooperation on human rights in the region (Hua-Hin Declaration), • function as an overarching body on human rights (TOR, Para. 6.8), • obtain information from ASEAN member states on human rights situation (TOR, Para. 4.10) and • inform public periodically on AICHR’s work and activities (TOR, Para. 6.7). • The above elements should have created a complex synergy between AICHR’s role on monitoring human rights situation, engaging wider population in ASEAN and interacting politically with member states. However, in its four years work, balancing these functions and role remains a challenge for AICHR. • In the last four years, the body’s capacity to adjust with the changing context and structural challenges to protect human rights to which the system will have to respond. This part has been reflected in AICHR’s work priorities, which has not been guided by the aim to strengthen the system but rather to show case on what AICHR desires to do.

9. Assessment • The period of October 2009 - March 2014 saw that AICHR’s capacity, independency, ability to balance its role between political body and human rights commission, ability to engage its stakeholders, setting the work priority and self-perception are the main problem of AICHR to fulfill its mandate and Head of State/Governments’ aspirations. • It should be noted here that the lack of technical and financial supports from ASEAN Member States contributed to the slow progress of AICHR. • Rather than working in partnership with the States to improve the protection of human rights, AICHR perceives itself as the defender of State’s interest. • AICHR is still reluctant to work with its stakeholders, especially with the victims of human rights violations who have valid interests to the system. This is in contradiction with the mandate given to AICHR as an overarching human rights body. • Further more, AICHR also suffers from lack of legitimacy on the role of the body in protecting human rights.

10. Recommendation • To revisit and assess the realization of Para. 4.10 and Para. 4.11 in the last four years, and identify possible actions to implement these particular mandates in AICHR’s work. • To balance the protection and the promotion mandate is necessary in order to contribute to ASEAN Community. • to receive, analyse and investigate individual petitions; • To conduct on-site visits to monitor the situation of human rights of ASEAN Member States; • To have capacity to call ASEAN Member States to adopt precautionary measures to avoid serious and irreparable harm to human life and personal integrity; • to establish an effective response to emergency situations and early warning systems; and • to appoint independent special rapporteurs, working groups or similar mechanisms. • to have a series of genuine dialogues and consultations with its stakeholders —primarily of the Member States, ASEAN organs, human rights institutions and user organizations such as civil society— in assessing the work of AICHR, reviewing the TOR and formulating the amendment of the TOR

11. Recommendation • To consider the visions of Head of States/Governments in the Hua-HinDeclaration: develop a forward looking strategy to strengthen regional cooperation on human rights in ASEAN, • serve as vehicle for progressive social development and justice and the full realization of human dignity and the attainment of higher quality of life for ASEAN people, • gain full support and provision of adequate resources by ASEAN Member States, • acknowledge the contribution of stakeholders in the promotion and protection of human rights in ASEAN, and encouraged their continuing engagement and dialogue, • develop in evolutionary approach in achieving cooperation on human rights as an overarching institution, • balance its mandate on promotion and protection of human rights.