Report icrm 2016 by Hoang Hiep

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam Ha Noi, 2016

Acknowledgement This feasibility study was initiated by UNICEF Viet Nam in the context of extensive discussion on whether or not Viet Nam should have an Independent Child Rights Monitoring Mechanism (ICRM) given that the child rights monitoring functions are being carried out by several state and non-state actors. The study was led by Vanessa Sedletzki, formerly Child Rights Specialist at the UNICEF Office of Research, who teamed up with a national human rights researcher, Nghiem Thi Kim Hoa. It was supervised by Pham Thi Lan, Programme Specialist of the Social Policy and Governance section, under overall leadership and guidance from Yoshimi Nishino, Chief of the Social Policy and Governance section, Jesper Moller, Deputy Representative and Youssouf Abdel-Jelil Representative, UNICEF Viet Nam office. The analysis could not have been done without strong support from a wide range of partners including various elected bodies and government agencies at national and sub national levels, research institutions, international and national NGOs as well as community teachers, parents and children from three selected localities including Ho Chi Minh City, and provinces of Dien Bien and Ninh Thuan. We would like to extend our special thanks to Madam Ngo Thi Minh, Vice Chairperson of the National Assembly’s Committee on Culture, Education, Youth and Children, Dr Dinh Xuan Thao, President of the Institute for Legislative Studies, Mr Dang Hoa Nam, Director of Children’s Bureau of Ministry of Labour, Invalids and Social Affairs, Madam Tran Thi Thanh Thanh, President of the Viet Nam Association for Protection of Children’s Rights, Mr Nguyen Trong An, Vice Director of the Research and Training Centre for Community Development, Mr Vu Ngoc Binh, national human right consultant, for their special input and contribution to both the draft report and final report. Finally, UNICEF Viet Nam is very much grateful for financial support from the Norwegian Embassy Viet Nam mission without which the study could not have been conducted.

Contents Acknowledgement.......................................................................................................................................................... 3 I. Executive Summary and Key Recommendations...................................................................................... 7 Background......................................................................................................................................................................... 8 Situation Analysis.............................................................................................................................................................. 8 Roadmap.............................................................................................................................................................................. 14 II. Introduction.................................................................................................................................................................. 15 Methodology...................................................................................................................................................................... 18 Limitations........................................................................................................................................................................... 19 III. Independent child rights monitoring mechanism – Concept, definitions, international standards........................................................................................................................................... 20 Defining child rights monitoring................................................................................................................................. 21 Implications for an ICRM................................................................................................................................................ 22 ICRM and other national institutions......................................................................................................................... 25 IV. International practice.......................................................................................................................................... 27 Introduction........................................................................................................................................................................ 28 Overview of the situation in Asia................................................................................................................................ 29 Child Rights Centre within the Philippines Human Rights Commission...................................................... 30 Croatia’s Ombudsman for Children............................................................................................................................ 31 Latin America’s Children’s Defenders......................................................................................................................... 34 V. Current child rights monitoring system in Viet Nam....................................................................... 37 Government monitoring................................................................................................................................................ 39 Oversight function of the National Assembly........................................................................................................ 41 Role of mass organizations and civil society........................................................................................................... 44 Justice system..................................................................................................................................................................... 47 VI. Legal gap analysis..................................................................................................................................................... 49 VII. Key gaps and insufficiencies: Lessons from grassroots consultations and real life situations .............................................................................................................................................. 53

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

VIII. Understanding of ICRM by national stakeholders............................................................................ 58 Concerns which challenge the establishment of an ICRM in Viet Nam............................................................. 61 Opportunities to support an ICRM................................................................................................................................. 63 IX Options for an independent child rights monitoring mechanism...................................... 66 Overall approach............................................................................................................................................................... 67 Overarching principles – Explicitly recognizing in legislation the importance of monitoring law implementation............................................................................................................................ 67 Stream 1 - Ongoing support and reinforcement of existing child rights monitoring mechanisms and remedies ........................................................................................................................................... 68 Improving the availability, access and effectiveness of remedies for child rights violations................ 69 Stream 2 - Establish an effective external mechanism to ensure a coherent child rights monitoring system in line with international standards............................................................. 70 An ICRM within an NHRI................................................................................................................................................. 74 Roadmap.............................................................................................................................................................................. 76 X. References........................................................................................................................................................................ 77 XI. ANNEXES............................................................................................................................................................................. 81 Annex 1 – Frequently asked questions by stakeholders on the establishment of an ICRM in Viet Nam.......................................................................................................................................................................... 82 Annex 2 – Stakeholder analysis summary................................................................................................................ 83 Annex 3 – Institutional analysis summary............................................................................................................... 84 Annex 4 – Examples of annual budgets for some national bodies or organisations in 2010 (1 USD = 18.900VND)....................................................................................................................................................... 85 Annex 5 - Interview methodology and questions................................................................................................ 88 Annex 6 – List of persons consulted (group consultations and bilateral interviews).............................. 91 Annex 7 – CRC Committee General Comment No. 2 (2002).............................................................................. 105

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

List of Abbreviations & Acronyms ASEAN

Association of Southeast Asian Nations

CEYC

Committee on Culture, Education, Youth and Children

CHR

Commission on Human Rights

CODES

Centre for Community Development and Social Work

CRC

Convention on the Rights of the Child

CSO

Civil society organization

CWC

Council for the Welfare of Children

DOLISA

Department of Labour, Invalids and Social Affairs

ICRM

Independent child rights monitoring

INGOs

International non-governmental organizations

IPU

Inter-Parliamentary Union

JJWC

Juvenile Justice and Welfare Council

MOLISA

Ministry of Labour, Invalids and Social Affairs

MPs

Members of Parliament

NGOs

Non-governmental organizations

NHRI

National human rights institutions

RTCCD

Research and Training Centre for Community

SDGs

Sustainable Development Goals

United Nations

UNICEF

United Nations Childrenâ&#x20AC;&#x2122;s Fund

UPR

Universal Periodic Review

USD

United States dollar

VAPCR

Vietnamese Association for the Protection of Child Rights

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Executive Summary and Key Recommendations

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Background Discussions within the Government and with related stakeholders around the creation of an independent child rights monitoring system in Viet Nam have been ongoing for several years. There is now a growing sense of urgency to accelerate such discussions due to the current wave of legal and institutional reforms and the recognized need to ensure this renewed framework translates into concrete changes in peopleâ&#x20AC;&#x2122;s lives. For children, this urgency is even more salient, as the fast pace of change directly concerns, yet has bypassed them in terms of direct engagement. As the 2004 Law on Child Protection, Care and Education (here referred to as the Child Law) is currently under revision, the necessity to guarantee its implementation has been taken into account by law-makers. This imperative is reflected in draft child law amendment which allocates specific implementation responsibilities to various State and non-State actors. An outstanding challenge, however, is understanding how these changes are actuated in real life, whether actors fulfill their responsibilities, which remedies are available to children whose rights are violated and whether adjustments are made when things go wrong for children. The Convention on the Rights of the Child (CRC) Committee recommended Viet Nam establish an independent body in line with its General Comment No. 2 during the last two CRC review sessions in 2003 and 2012. As a follow-up the Government of Viet Nam committed in Decision 535, approved in 2014 and related to the implementation of the CRC Concluding Observations, to consider the possibility to establish an independent child rights monitoring mechanism. These discussions will be critical, especially in the context of the post-2015 Sustainable Development Goals (SDGs) having been adopted with a focus on effective and accountable State institutions. During the 132nd Inter-Parliamentary Union (IPU) conference in Ha Noi in March 2015, independent child rights monitoring (ICRM) and its role in child rights promotion and protection

in the context of the SDGs received significant attention from members of parliament globally.

Situation Analysis Institutional analysis Many State and non-State institutions operating in the area of child rights in Viet Nam have a child rights monitoring function. However, an analysis of their mandates and practices reveals insufficiencies, as shown in the table below:

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution Government (including Ministry of Labour, Invalids and Social Affairs)

Monitoring function Inspection system

Strengths

Weaknesses

Well integrated into ministries

Internal mechanism

Binding due to hierarchical rules

Focus on respect for procedures, administrative compliance

Carried out by staff with technical knowledge Reactive to situations in the news.

Sector, rather than holistic, approach Lack of systemic review No reporting system for children Limited inspection staff experience in child rights.

National Assembly

Oversight of Government performance

Constitutional mandate

Limited human and financial capacities

Various oversight tools

Many part-time members also part of Government

Direct contact with situation on the ground (local representatives, link with People’s Councils) Citizens’ complaint mechanism.

Limited follow-ups on recommendations Oversight of Government only (not private sector nor National Assembly itself ) Child rights a low priority Children’s access to complaint mechanism uncertain.

Fatherland Front and mass organizations

Social critic

Constitutional mandate

Link to Communist Party

Mandate in grassroots democracy and coordination of grassroots organizations

Conflict of interest with monitoring function over member organizations

Youth Union a respected structure with local members Youth Union legal mandate in promoting children’s participation.

Social accountability only No child rights structure Youth Union’s limited experience in working with marginalized children and taking child rights approach Mass organizations’ limited political clout in national system.

Civil society organizations

Social organization

Work at grassroots level

Limited funding

Expertise in children’s daily experiences

Weak capacities

Advice on policy implementation Specific role of VAPCR enjoying respect and influence in the field, engagement of high level members, solid level of expertise, access to grassroots organizations. Justice system

Judicial remedy

High staff turnover Funding issues Low level influence on policy-making VAPCR highly specialized, sustainability depends on individuals.

Binding

Low use of justice system in general

Legal aid system, at local level and mobile units

Restrictions on access to justice for children, due to legal capacity and legal representation issues

Newly created Family and Juvenile Court.

Restricted access to legal aid system Lack of child-sensitive structures and mechanisms (evolving).

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Legal analysis Overarching gaps across the existing child rights monitoring system include: A fragmented system. Several actors have a child rights monitoring role, yet there is a high risk of fragmentation, overlaps and lack of clarity on responsibilities. Poor coordination among existing monitoring actors negatively affects overall consistency in child rights monitoring approaches, links between implementation on the ground and policy-making, and visibility of systemic issues. Limited accountability mechanism for actors’ fulfillment of duties. Information on actors’ activities for the realization of children’s rights is critically missing. Many monitoring mechanisms are located within structure(s) managing services and no follow up system(s) on implementation of recommendations is in place. Insufficient child-centred approach. The majority of mechanisms do not have a strong child-centred approach nor ensure high visibility of children’s rights and best interests. Structures are often ill-equipped to promote holistic approaches and directly interact with children. Limited mechanisms for children to be heard and their views taken into account in key decision-making processes at national and local levels. While legislation provides for child participation and specific actors’ roles in this respect, it focuses on processes rather than outcomes. There is no formal structure in place to ensure children’s views are heard and duly taken into consideration. Lack of effective remedies for child rights violations. While the settlement of complaints is a principle of the law, there is no specific mechanism to achieve this.

Current legislation in Viet Nam is characterized by a number of gaps in ICRM functions as per international standards, which prevents the current child rights monitoring system from providing a comprehensive set of features needed for effective monitoring of children’s rights. In particular: CRC provisions are not specified in existing legislation on child rights monitoring, including the Child Law, as required by international standards. Under current legislation, the National Assembly has the competency to hear any person, obtain any information and document violations of child rights as necessary. But it does not have the authority to provide or enforce sanctions for non-compliance. Monitoring and oversight mechanisms under existing legislation only have the mandate to monitor public bodies, not private entities such as businesses, which may perpetrate or facilitate child rights violations, such as child labour, online bullying and sexual abuse. Although some State agencies receive and handle individual complaints, there is no explicit legal mandate to consider complaints directly submitted by children, except for the informal hotline mechanism which is mainly responsible for providing counselling and referral support. According to current legislation, legal aid is limited to children in difficult economic circumstances, rather than available to all children. In addition, children can access the courts system through a legal representative. However, there is limited support available (if any) for children to take cases to court, especially in cases of divergent interests with parents. Although provisions from the CRC on child participation are captured in the 2013 Constitution and some other legal

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Stakeholders’ views An analysis of stakeholders’ positions regarding an ICRM enabled this report’s authors to identify challenges and opportunities in national support for such a mechanism. Challenges: There is lack of clarity among stakeholders on the concept of independent child rights. This results in a limited understanding of its need, its functions and concrete added value in practical terms, especially at local level. Stakeholders are generally reluctant to accept the concept of independence, as it is perceived as foreign to Viet Nam’s political culture. Moreover, there is a lack of comprehension regarding the notion that a State body can benefit from a high level of independence.

documents, respect for children’s rights is not viewed as a duty to hear such views and give them due consideration. There is no formal institution responsible by law to report on the situation of child rights in Viet Nam and to promote awareness of children’s rights. Visits to institutions and facilities responsible for the care of children primarily fall under the Ministry of Labour, Invalids and Social Affairs (MOLISA). However, there is no institution with a legal mandate to monitor institutions from a comprehensive, systemic perspective and with a duty to hear children’s views.

The northern European ombudsman model, such as the one operating in Norway, is viewed as idealistic but unsuitable for Viet Nam as it is far removed from the country’s socio-economic conditions and political context. Public administration reform is seen as downsizing, despite opportunities it presents for enhanced quality of State intervention and more effective delivery of social services. There is no proactive force or alliance among stakeholders for the establishment of an ICRM, despite support from some. Limited attention is paid to the need for an effective remedy for child rights violations directly accessible to children. The existing hotline run by MOLISA is a mechanism to receive children’s information in a passive manor. However, it is still difficult to assess for marginalized children and has limited follow-up capacities. Opportunities: Stakeholders demonstrated interest in

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

learning from ICRM practices in countries with similar development levels or contexts to Viet Nam. The draft amended Child Law takes a more extensive child rights approach than existing legislation and recognizes the importance of implementation. Some media professionals who follow children’s issues expressed general interest and support for an ICRM, it needs access to additional information. Civil society organizations (CSOs), in particular the Viet Nam’s Association for the Protection of Child Rights (VAPCR), support the creation of such a mechanism. The informal hotline mechanism represents a valuable and active service already in place. It can offer a lot of experience in terms of setting up procedures and collecting information on children’s situation. A small ICRM office would incur low costs, hence have limited State budget implications. The emerging discussion on the establishment of a national human rights institution (NHRI) could advance the understanding of independent monitoring, even though the issue is still sensitive and stakeholders often overlook its connection to an ICRM. Avenues for an ICRM In creating an ICRM in Viet Nam, it is important to build on existing mechanisms to ensure the relevance of a child rights monitoring system to the Vietnamese context. Therefore, an integrated approach is proposed, building on the recognition of overarching principles. The importance of monitoring for law’s implementation, strengthening the existing structure and developing functions for child rights monitoring approaches currently missing in the existing system is to be explicitly recognized in legislation.

Recognition of key principles in the legal framework The draft Child Law presents a significant opportunity to advance child rights monitoring in Viet Nam. It takes a child rights approach and contains detailed provisions towards concrete implementation of the law. Key principles should include monitoring as the link between the law and its enforcement. These principles would serve as a basis for further discussions on an independent child rights monitoring mechanism, included at a later stage in detailed legislation on the mandate and operation of such an institution. ► Strengthen the existing structure – Ongoing support and reinforcement of child rights monitoring mechanisms and remedies already in place Reinforce the monitoring structure of each relevant stakeholder: Relevant bodies at national provincial level must ensure a full-time monitoring function is built into their respective mandates. The National Assembly and People’s Councils have an important oversight function. The Fatherland Front’s new law specifies its monitoring mandate, while the MOLISA could enhance its own child rights monitoring mechanism in addition to the strengthened structure proposed in the draft Child Law. CSOs, most notably the VAPCR, could fit well in this context with their roles officially recognized by the new law. Develop a child-centred approach: Existing mechanisms should shift from monitoring compliance to a child-centred approach focused on outcomes. Ongoing interactions with children is key. Monitoring bodies under each mechanism could appoint their own focal point for child participation as an access point for children. Improve the availability, access and effectiveness of remedies for child rights violations: There is a critical need for a mechanism to ensure all children have access to an effective, child-sensitive remedy when their rights are violated. Such a remedy must be simple and accessible to children,

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

especially to those in difficult situations. The existing hotline mechanism under MOLISA’s coordination needs enhanced visibility through communication campaigns and additional resources. The MOLISA could develop case management, data collection and analysis systems to identify trends affecting children and inform policies. Children’s access to legal aid at provincial level should be strengthened through capacity-building of legal aid centres and partnerships with relevant CSOs. ► Develop new approaches – Establish a mechanism to ensure external child rights monitoring in line with international standards Key functions must take into account the current framework and ensure complementarity with existing mechanisms: They include: (a) Monitor the implementation of laws, policies, and service delivery for the realization of children’s rights and follow up on implementation of recommendations, (b) build on and coordinate findings from various child rights monitoring processes, (c) take a strong child rights approach, building on solid child participation mechanisms and practices, (d) ensure availability of an effective remedy to all children, (e) link children’s experiences on the ground to policy-making and (f ) give visibility to children and their rights within the existing political system. An autonomous ICRM: An ICRM in Viet Nam should have a mandate established by law, with reference to its independence and obligation to abide by legislation. Its role and competencies should be broad and in line with international standards, in particular CRC Committee General Comment No. 2. Viet Nam’s State auditor could serve as a good example for developing an independent child rights monitoring mechanism because it follows principles which make the institution independent from other State actors. The Child Law should outline the ICRM’s key principles of integrity, objectivity and professionalism. It should also include background checks on staff working with children. The ICRM’s mandate must be grounded in relevant national and international law, with specific reference to the

CRC. It should include an obligation to promote and set up channels for child participation and be directly accessible to children, especially the most marginalized. The ICRM could be placed under the National Assembly’s authority and report to it, but have an autonomous status and separate competencies. Other alternatives, such as placing it under the executive branch, such as the MOLISA, risk making the mechanism too State-focused. The possibility to place it at a higher level of Government, under the Presidency or Prime Minister, like the Office of the Steering Committee for Human Rights could ensure it has sufficient political clout to be effective. An ICRM within a National Human Rights Institution (NHRI): The establishment of an NHRI in Viet Nam is under discussion. If created, its mandate should explicitly mention children’s rights and/or the CRC. Specific provisions for children’s accessibility to the NHRI, the ability to directly consult with children and visit places where children could be at risk, are also essential. Provisions must be made for a child-specific structure within the NHRI, especially if a separate ICRM is not in place. As a child rights department of a NHRI would likely have limited resources, it would need to work closely with other sections of the organization to be effective.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Roadmap Phase 1: Advocacy, information and recognition of principles

Phase 2: Setting up mechanisms and processes o Work with stakeholders to enhance their monitoring capacity. Assessments of their mandates, capacities and work processes should be undertaken to identify effective measures to support monitoring functions in line with international standards.

o Ensure ICRM principles are reflected in national legislation. The amendment process to the Child Law is an important legal platform to institutionalize ICRM in Viet Nam. o Build knowledge on ICRM and relevant international standards at national and local levels. The ethos and daily functions of the ICRM should be communicated to stakeholders through onsite visits and information tools as well as the sharing of experiences from countries with similar levels of development. o Develop a news media coalition in support of the ICRM. The media’s role in identifying child rights violations and raising public awareness on children’s rights can be utilized to support the ICRM and build a public consciousness of child rights.

o Engage in the establishment of an autonomous ICRM ahead of CRC reporting process, with the objective to ensure fulfilment of the CRC Concluding Observations prior to the next review which will take place around 2018 and enhance Viet Nam’s compliance with its international commitments.

Phase 3: Capacity building of established mechanisms and processes and share lessons beyond child rights issues o Ensure ongoing capacity of monitoring mechanisms (skills, resources, political support). o Review implementation of recommendations made by existing State and non-State actors engaged in child rights monitoring. o Engage in discussions on establishment of a NHRI to ensure visibility of child rights in this establishment process.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Introduction

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Discussions within the Government and with related stakeholders around the creation of an independent child rights monitoring system in Viet Nam have been ongoing for several years. There is now a growing sense of urgency to accelerate such discussions due to the current wave of legal and institutional reforms and the recognized need to ensure this renewed framework translates into concrete changes in people’s lives. For children, this urgency is even more salient, as the fast pace of change directly concerns, yet has bypassed them in terms of direct engagement. The need to understand how new laws affect children has been acknowledged by many Members of Parliament (MPs). The National Assembly’s Committee on Culture, Education, Youth and Children has conducted child rights impact assessments of the Child Law discussed in a range of areas. With the 2004 Law on Child Protection, Care and Education under revision, new questions have arisen as to the necessity to guarantee its effective implementation. This imperative has been translated into the draft law amendment, which allocates specific implementation responsibilities to various actors. An outstanding challenge, however, is understanding how these changes are actuated in real life, whether actors fulfill their responsibilities, which remedies are available to children whose rights are violated and whether adjustments are made when a child’s rights are violated. These discussions will be critical, especially when the post-2015 Sustainable Development Goals (SDGs) having been adopted with a focus on effective and accountable State institutions. During the 132nd IPU conference in Ha Noi in March 2015, ICRM and its role in child rights promotion and protection in the context of the SDGs received significant attention from members of parliament globally. Significant changes in Vietnamese society as a result of rapid socio-economic development have impacted on children’s lives. While such development has improved material conditions for many, numerous issues affecting their well-being remain unaddressed, while new ones have emerged. Disparities and the

ongoing social exclusion of some groups has meant that many children, in particular from ethnic minorities, are out of school and engaged in various forms of labour. Progress, with the use of internet and smartphones, has brought new sets of challenges such as increased child protection risks and concerns with bullying. These issues often remain overlooked by decision-makers and other duty-bearers responsible for the care of children. Overall, the reasons why an independent child rights monitoring mechanism is needed in Viet Nam today are no different from those that have presided in the development of such systems across countries and continents and have been well encapsulated by the UN Committee on the Rights of the Child: “While adults and children alike need [an independent child rights monitoring mechanism] to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children’s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines a Government’s response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited”.1 This study aims to propose avenues for an ICRM system in Viet Nam, based on the country’s situation, its socio-economic and political context, guided by international standards. While past discussions with Government officials have primarily focused on concepts, this study’s objective is to concentrate on practical elements to elucidate the concrete added value of an independent monitoring mechanism for the realization of children’s rights in the country. The aim is to go beyond 1 CRC Committee, General Comment No. 2, para. 5.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

theoretical tools to make the mechanism palpable in terms of functions, structure and resources as well as examine how it would operate in the Vietnamese context. This study first develops an understanding of independent child rights monitoring and other critical notions to diffuse possible misunderstandings. It examines these concepts with a view to bridging international perspectives with the Vietnamese context. It also seeks to differentiate independent child rights monitoring from other forms of monitoring to highlight its specificity and requirements for effectiveness. It is grounded in an analysis of the institutional landscape and explains how independent child rights monitoring differs from exiting mechanisms currently in place in Viet Nam or under consideration in the draft Child Law. Based on these considerations, this study reviews relevant international practices and the various ways in which independent child rights monitoring has been secured in different countries. While recognizing that each national context is unique and taking into consideration Viet Namâ&#x20AC;&#x2122;s distinct political system in particular, countries selected for comparison bear some similarities to the situation in Viet Nam â&#x20AC;&#x201C; due to their location, economic and social context or geography. As a result, such nations can provide interesting insights and complement inspiring successful practices Vietnamese stakeholders have already been exposed to, in Europe especially.

mechanism in Viet Nam, which can operate either as different options or preferably as complementary dimensions that would constitute a roadmap towards the establishment of a solid independent child rights monitoring system, adapted to the national context and in line with international standards.

By focusing on the national context in Viet Nam, this study provides an in-depth examination of relevant bodies responsible for monitoring functions to assess their potential to conduct child rights monitoring and support the functions of an ICRM. It then reviews stakeholdersâ&#x20AC;&#x2122; perceptions and reactions to an ICRM, with a view to identifying challenges and opportunities as well as informing the advocacy approach towards establishment of such a mechanism. Finally, it presents two key streams towards an independent child rights monitoring

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Methodology This study builds on review of existing literature, official documents and legislation (see list of references in annex) as well as in-depth interviews and consultations with an extensive range of stakeholders, including children, at central and local levels. Bilateral interviews with related stakeholders were semi-structured to inform an analysis of the nature and effectiveness of the current child rights monitoring system in Viet Nam and seek views on possible options for the establishment of an independent child rights monitoring mechanism. Interviews also provided an opportunity to clarify concepts and address concerns and misunderstandings about the role, position and functions of an ICRM as defined by international standards.2 The full list of questions and interviewees is reflected in the annex of this report. Consultations involving several stakeholders were carried out at central leve and in selected provinces of Dien Bien in the north and south central coastal Ninh Thuan, and in Ho Chi Minh City in the south. Two communes from their respective districts (one from each district) were selected from each province and city to examine the complex nature of children’s rights (such as belonging to an ethnic minority or living in urban poverty) and the diverse context of local governance (urban versus rural and mountainous) to review how children’s rights issues are monitored and addressed. Consultations were conducted at provincial level with provincial authorities and National Assembly representatives and at commune level with communal authorities, children, parents and teachers. Children’s consultations took place in a primary school setting and for children outside of the school, at the office of the Commune or Ward’s People’s Committee. The consultations included boys and girls from 2 Most relevant standards are the principles relating to the status of national institutions for the promotion and protection of human rights (“Paris Principles”) adopted by the General Assembly in 1993 transmitted by the Commission on Human Rights in 1992 and General Comment No.02 of the UN Committee on the Rights of the Child (2002).

various age groups ranging between 6 and 18 years. Children were invited to share their views on child rights, existing or potential violations in their contexts, and existing remedies to address them through improvised role-plays. The objective was to understand who/where children go to when their rights are perceived to have been violated. Parents were consulted in separate meetings and were able to share views on the daily issues faced and existing remedies when a problem arose. Teachers were asked about children’s main difficulties, their role in supporting students and opportunities for remedies to address challenging cases. Consultations in Ha Noi were organized jointly with the VAPCR, an important CSO in the promotion of children’s rights. It gathered approximately 50 participants from various CSOs working in the area of child rights and also representatives from the National Assembly and MOLISA.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Limitations Some limitations affected data collection and analysis. Limited documentation is available on actions taken by public authorities, while reports are often not made public. While laws, competencies and existing processes are usually well defined, the extent to which they are utilized and performed is difficult to assess due to a lack of access to information. Few public consultations on child rights have taken place in Viet Nam and social accountability mechanisms are still incipient. As a result, the research team encountered difficulties in obtaining forthright information about people’s situations and the actual level of public accountability in fulfilling duties. The issue was mitigated by triangulating informants’ responses with other sources and interviews, and by relying on additional knowledge explaining the national context. For children, the issue was compounded by the fact that consultations took place in a school setting, where there was a temptation to recite what was learnt in class. The issue was mitigated by requesting teachers and other adults not be

present during interviews and “unexpected events” in role-plays to encourage more candid child responses. Another limitation was the fact that people from ethnic minorities, in particular parents and out-of-school children, had difficulties understanding and speaking Vietnamese. The issue was addressed by asking other group members to support with translation. The effect of language difficulties on the level of ease and trust was nevertheless palpable and could not be addressed within the allocated timeframe. However, this element represents a finding in itself in respect to the need for specific accessibility measures and inclusion of ethnic minorities in any independent child rights monitoring mechanism.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

III

Independent child rights monitoring mechanism â&#x20AC;&#x201C; Concept, definitions, international standards

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Defining child rights monitoring Child rights monitoring is fundamental to ensure that laws are implemented in practice. While strong laws relating to child rights may be adopted, difficulties on the ground often impede their actual implementation. Child rights monitoring serves to identify challenges, make recommendations for improvement and review progress. It consists in many ways as a bottom-up approach, in which specific situations at grassroots level help identify and inform the need for change in the system, including in laws, institutions, and practice. Child rights monitoring should be performed by the State, but it concerns both State institutions and the private sector. An independent child rights monitoring mechanism is a set of machinery (body, institution, system), which assesses the situation of children’s rights, analyses its determinants and makes recommendations for further improvement from a perspective that is external from that of those in charge of direct implementation and without a hierarchical relationship to them. Monitoring is the regular observation of a situation over time. To be effective, monitoring must be undertaken on an ongoing basis, rather than at intervals. For this reason, it must consist in a permanent mechanism, performing monitoring duties on a daily basis. Furthermore, monitoring children’s rights does not merely imply gathering and publishing data. Instead, child rights monitoring is a comprehensive concept, which involves an in-depth analysis of children’s daily experiences informed by their own views, as well as the factors that have led to a given situation – whether individual or collective. For example, it implies not only calculating how many children are involved in child labour, but also the reasons for it, and an assessment of the system’s response and its effectiveness in protecting children from child labour. Similarly, it entails examining how many and which children are not registered at birth, the reasons why, and how public authorities could be more effective in fulfilling their duties in this respect.

Child rights monitoring also includes considering individual situations, which often serves as an alert mechanism and helps identify gaps in the system. For example, a child becoming stateless due to legal provisions impeding transmission of nationality under certain circumstances or a child under State care falling victim to trafficking due to lack of adequate care. Mechanism, body and institution Child rights monitoring can be performed by a dedicated mechanism, body or institution. While these terms can in some cases designate similar functions, they also suggest different ways in which child rights monitoring can be integrated into a political system. A mechanism refers first and foremost to a standardized or formal process, in which various parts of the system act together to achieve a certain result. A mechanism can be specialized and also part of an existing institution. A body represents something concrete, palpable and a structured. It also gives shape to a mechanism. However, its exact size and nature can vary extensively. An institution indicates a more advanced structure, with a formal and official mandate towards a given cause. An institution typically has a recognized function and weight in a political system, suggesting greater importance and political clout.

Child rights monitoring specifically entails conducting monitoring with a child rights approach. The CRC Committee has defined a “child rights approach” as follows: “A child rights approach is one which furthers the realization of the rights of all children as set out in the Convention by developing the capacity of duty bearers to meet their obligations to respect, protect and fulfill rights (Article 4) and the capacity of rights holders to claim their rights, guided at all times by the rights to non-discrimination (Article 2), consideration of the best interests of the child (Article 3, Paragraph 1), life, survival and development (Article 6), and respect for the views of the child (Article 12). Children also have the right to be directed and guided in the exercise of their rights by caregivers,

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Implications for an ICRM parents and community members, in line with children’s evolving capacities (Article 5). This child rights approach is holistic and places emphasis on supporting the strengths and resources of the child him/herself and all social systems of which the child is a part: family, school, community, institutions, religious and cultural systems”.3 It further states that a child rights approach “requires a paradigm shift away from child protection approaches in which children are perceived and treated as “objects” in need of assistance rather than as rights holders”.4 Child rights monitoring concerns all children’s rights set forth in the CRC. These include civil and political rights as well as economic, social and cultural rights. They range from the right to protection from violence, abuse and exploitation to the right to health and the right to education. Child rights monitoring is, therefore, by nature holistic - one of its key strengths. Where Government ministries and other settings may consider a child as a pupil, patient, daughter or son, child rights monitoring consists of taking an holistic approach to childhood and children as well as to understand the multiple dimensions that shape a child’s development. Protecting, promoting and monitoring of children’s rights Protecting, promoting and monitoring children’s rights are interrelated and interdependent, yet different functions. Protecting children’s rights means guaranteeing that children can effectively exercise the full range of rights entitled to under the CRC. It is different from protecting children, which conveys a vision of children as passive objects and overlooks children’s own capacities. Promoting children’s rights refers to the dissemination of knowledge among all social actors about children’s rights to influence their attitudes and priorities. It generally comprises of various communications activities, including awareness-raising campaigns as well as training, capacity building and advocacy. Monitoring children’s rights consists of assessing whether or to what extent, children’s rights have been realized, identifying gaps and making recommendations for addressing such issues. 3 CRC Committee General Comment No. 13, Paragraph 59.

Consideration of the breadth of child rights issues is not only theoretical. It also has practical implications for establishment of a mechanism that can structurally incorporate these multiple dimensions. If the mechanism is too closely associated with a body taking a specific approach to children, it may be unable to take the necessary comprehensive perspective on child rights monitoring. The role of child rights monitoring is to examine how actors operating in different sectors coordinate their actions and how respective impacts intersect in dealing with specific issues and/or individual children. A direct consequence is the external nature of the mechanism is critical to its ability to provide comprehensive, systemic monitoring. “External” means the mechanism should not be attached to any particular State body. However, it remains a State mechanism, part of the State system, financed by the State and established by law. In this sense, it is independent from other institutions, but not independent from the State. The objective of an ICRM is to step back and observe the daily implementation of tasks and not be too closely involved with a given actor, in order to provide a comprehensive picture of the system and the way it operates towards the realization of children’s rights. “External monitoring” and “independent monitoring” External and independent monitoring are two close, yet different notions. External monitoring refers to monitoring performed by a body external to organs responsible for developing and implementing laws, standards and policies. As a result, this position provides a different vantage point on issues and allows for a comprehensive, multi-sectoral view as the monitoring mechanism is not attached to a particular body. Independent monitoring has further additional features. Independence is guaranteed if the mechanism can choose its own agenda and workplan, when its personnel are not hierarchically submitted to another organ, it can freely manage its own budget in line with public finance regulations and is able to make public statements. External monitoring primarily refers to the structure and location of the mechanism in the institutional landscape, while independent monitoring also integrates the legal, functional and operational characteristics that ensure an impartial perspective.

4 CRC Committee General Comment No. 13, Paragraph 59.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

These elements are critical for an independent child rights monitoring mechanism to function effectively. Child rights monitoring is not limited to the subject matter of the monitoring process. It also includes the way monitoring is carried out, with child-centred approaches as per the definitions highlighted earlier in this report. In its General Comment No. 2, the CRC Committee emphasized a number of specific functions for independent child rights monitoring, highlighting the specificity of a child rights approach in this context. For example, it underlined that independent child rights monitoring concerned public and private entities, in recognition of the wide range of duty-bearers involved in the protection of children’s rights or whose actions could violate children’s rights. The Committee also emphasized that the power to consider individual complaints was an essential competency of an ICRM. Importantly, the Committee placed a significant focus on

child accessibility and participation, especially for vulnerable groups. Article 12 of the CRC specified that children have the right to express their views “freely”. As emphasized in the Committee’s separate General Comment on the right of children to be heard, this implied that “the child must not be manipulated or subjected to undue influence or pressure” and views should reflect a child’s “own” perspective, not the views of others.5 These elements and their implications for an ICRM are summarized in the following table:

5 CRC Committee General Comment No. 12, CRC/C/GC/12, Paragraph 22.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Table 2: Key principles of an ICRM General Comment No. 2 Legal and political status

•

Adopted by the CRC Committee (independent experts monitoring State parties’ compliance with the CRC)

•

Non-binding, but significant practical guidance value

Mandate

•

CRC must be included in mandate

Competency

•

Monitoring all relevant public and private authorities

Establishment process

•

Consultative, inclusive and transparent

•

Supported at the highest level of Government

•

Participation of all relevant elements of the State, the legislature and civil society

•

Pluralistic representation of civil society

•

Inclusion of child and youth-led organizations

Individual complaints mechanism

•

Mandatory

Accessibility and information

•

Geographically and physically accessible to all children

•

Proactive approach, in particular for the most vulnerable and disadvantaged children

•

Duty to promote the views of children

•

Direct involvement of children through advisory bodies

•

Imaginative consultation strategies

•

Appropriate consultation programmes

•

Promote visibility and best interests of the child in policy-making, implementation and monitoring

•

Ensure that views of children are expressed and heard

•

Promote understanding and awareness of children’s rights

•

Have access to children in care and detention

Composition

Activities

Summary of key provisions of General Comment No. 2 Source: Adapted from UNICEF Innocenti, Championing Children’s Rights, 2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

ICRM and other national institutions The Committee on the Rights of the Child has explicitly differentiated Government and independent monitoring in its General Comment No. 5 (2003) on the General Measures of Implementation, stating that “rigorous monitoring of implementation is required, which should be built into the process of Government at all levels but also independent monitoring by national human rights institutions, NGOs and others”.6 Understanding of independence in the context of Viet Nam The Vietnamese political system is characterized by a high level of interdependence between bodies and political structures. The Communist Party is directly linked to the State as one political project for public intervention in areas concerning people’s lives. The majority of National Assembly representatives are also Government officials, making the legislative and executive branches closely intertwined. One body stands out, the State Audit Office, which has a mandate that explicitly mentions its independent status but whose workplan, for example, must be approved by the National Assembly. The concept of independence in Viet Nam needs to be understood against this backdrop. The main feature of independence in this context is the external nature of the mechanism, the fact that it functions autonomously with its own mandate and resources. Yet its overarching role, like all State institutions, remains to keep advancing Viet Nam’s political project, of which ratification of the CRC is a key part. Independent monitoring in the Vietnamese context is not about questioning a political project that already includes the realization of children’s rights. Instead, it supports existing institutions to enhance their ability to achieve this realization from an external perspective.

6 Committee on the Rights of the Child, General Comment No. 5, General Measures of Implementation of the Convention on the Rights of the Child (Articles. 4, 42 and 44, Paragraph 6), U.N. Doc. CRC/GC/2003/5 (2003).

While independent child rights monitoring is different from that performed by State and non-State structures, it operates in complementarity with such structures7: Government monitoring: While independent and Government monitoring share a number of similarities in reviewing progress, supervising policy implementation on the ground, conducting research and proposing law reforms, they diverge on one fundamental point - independence. However, Government ministries and an ICRM must work together, with ministries’ guidance and priorities providing benchmarks for independent monitoring and its support of Government assessments of priorities and identification of new issues to address. Independent and Government monitoring Independent monitoring is external to the Government and not subject to the hierarchical supervision of a given ministry, prime minister or president. Its role is to comprehensively review compliance with international and national child rights standards. Government monitoring is an internal process, through which the Government assesses its own action against its set objectives. Importantly, is not independent in that those undertaking monitoring operate under the supervision of the executive power they are part of.

Parliament: Parliamentary committees and an ICRM have a number of similar functions, in particular overseeing Government actions, advocating for adoption of relevant legislation for child rights and raising decision-makers’ awareness on children’s rights. However, parliamentary committees are composed of elected parliamentarians, whose approach is often based on political lines and concerns for re-election, rather than solely on children’s best interests. Yet, parliaments play an important role in defining, supporting and overseeing the role of an ICRM, which they create 7 UNICEF Innocenti, Championing Children’s Rights – A Global Study of Independent Human Rights Institutions for Children, 2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

through legislation and allocation of resources. Moreover, they typically review ICRM reports, which provide important information and recommendations to enhance children’s rights in a country. An ICRM can also review draft laws, which have the potential to impact on children’s rights and provide advisory opinions. Civil society: CSOs and an ICRM promote and protect children’s rights by monitoring Government and others’ actions, undertaking policy advocacy work and raising awareness. CSOs, however, do not have a legal mandate and their funding is not included in the State budget. While they are not officially part of the legislative process nor the State system in general, they may work with it. They do not have specific access to information that is not public and cannot issue binding requests for information to State agencies. They do, nevertheless, play an important role in

supporting the work of an ICRM by sharing information, channeling complaints and organizing joint campaigns and training events, for example. Courts: The justice system and an ICRM provide remedies for individual and/or collective child rights violations. While court judgments are usually binding and based on highly formal child-sensitive proceedings, an ICRM operates as a mediation structure whose solutions are usually not legally enforceable. As its proceedings are less formal, they are often more accessible - especially for children without legal representation. In some instances, ICRMs have the competency to file a case on behalf of a child and/or represent the child in court proceedings. They may also have the power to refer a question to a high level court or submit legal opinions to tribunals on specific cases.

Independent child rights monitoring mechanism

Government Coordinating mechanisms

Parliamentary committees

NGOs

Courts

Legal basis

Public

Private

Public

Independent from Government

Yes

Funding

Public, mainly with possible exceptions

Public

Private and sometimes public

Public

Accountability

Government, parliament and public

Government

Parliament

Private and donor

n/a

Accessibility to children

More child friendly

Less child friendly

Depends

Less child friendly

Works on law reform

Recommends

Can propose

Proposes and enacts

Often recommends

Interprets, may invalidate

Collects data

Often

Some

n/a

Raises awareness and carries out training

Often

Some

Often

n/a

Develops and implements policies and programmes

Advises and monitors

Yes

Advises and monitors

Often

n/a

Receives individual complaints

Often

Some

Rarely

Some

Yes

Comparison between an ICRM and other mechanisms’ nature and functions Source: Adapted from UNICEF Innocenti, Championing Children’s Rights, 2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

International practice

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Introduction Independent child rights monitoring mechanisms have been established in more than 70 countries across continents with diverse levels of development, political systems, administrative organizations and socio-economic conditions. As a result, such ICRMs have taken different shapes to adapt to local contexts in which they operate. Depending on the country in which they have been set up, they have been called “ombudsman for children” – using a Scandinavian word, “children’s advocate”, “children’s commissioner” or “children’s defender” and focus on a role as a representative of children’s views and interests in the political system and often the judicial system. Some operate as autonomous bodies, others are part of broader human rights institutions with a specific deputy in charge of the child rights portfolio. International practice and experiences help explain how these mechanisms function and the full extent of their diversity to inspire possible models for Viet Nam to adopt. Stakeholders in Viet Nam have engaged in exchange learning with Norway for several years facilitated by UNICEF and other donors. This knowledge exchange programme has exposed them to a functioning Ombudsman for Children model. In fact, Norway was the first country in the world to appoint in 1981 an Ombudsman for Children and benefits from the hindsight of more than three decades of practice. While the Norwegian Ombudsman for Children even visited Viet Nam in 2014 and 2015 to exchange ideas and champion child rights, some informants interviewed for this report perceived the Norwegian mechanism as an inspiring practice, yet felt Viet Nam’s political system and its socio-economic conditions greatly differed from those in the northern European country.

similar development range as Viet Nam and similarities in terms of political, socio-economic and geographic conditions. The objective is to illustrate the diversity of existing independent child rights monitoring systems across countries and regions, which offer core functions within various contexts and settings suitable for replication in Viet Nam. It is important to underline that no mechanism is perfect. A review of existing systems and how they operate highlights key lessons to take into consideration for the establishment of an ICRM in Viet Nam.

While the Norwegian example has been critical in developing an understanding of key concepts around independent child rights monitoring in Viet Nam, this study has focused on practices from countries within a

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Overview of the situation in Asia A global study carried out by UNICEF Innocenti in 2013 provides an overview of the types of independent child rights monitoring mechanisms currently in place across Asia-Pacific (excluding Australia and New Zealand).8 Globally, more than 70 countries have established independent child rights institutions with rapid growth in the number of ICRM institutions since the 1990s. In this region only nine countries have established specific independent child rights monitoring mechanisms. The nations are Afghanistan, India, Indonesia, Japan, Kyrgyzstan, Mongolia, Nepal, Pakistan and the Philippines. While these mechanisms are diverse, they share a number of commonalities, in particular their creation has largely resulted from strong engagement by international organizations and a willingness to abide by international standards. Such ICRMs have often been established in the context of transition reforms and as part of existing structures, generally as specialized child rights departments within broad-based human rights institutions. India is the only 8 This section is based on UNICEF Innocenti, Championing Children’s Rights – A Global Study of Independent Human Rights Institutions for Children, 2013, pp. 217-232.

country in the region with a stand-alone independent child rights monitoring body, the National Commission for the Protection of Child Rights, which was created alongside other specialized mechanisms (e.g. for women and for minorities). Initial analysis of regional and global experiences on ICRM shows that monitoring bodies’ links with executive branches have been found to be often too tight to provide the necessary external perspective. Furthermore, their mandates tend to focus on rights promotion rather than protection. Overall, children’s issues are often marginalized within broader structures, calling for the inclusion of a specific mandate in legislation. Finally, human and financial resources are often scarce and lack the long-term engagement needed for this type of work. Importantly, these conclusions must be taken into account during steps to establish an ICRM in Viet Nam. One structure that deserves attention because of the country’s similarities with Viet Nam is the Child Rights Centre, within the Philippines Commission on Human Rights.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Child Rights Centre within the Philippines Human Rights Commission The Philippines shares a number of commonalities with Viet Nam. It is an ASEAN country with a similar level of development, population range, poverty and growth rates. Its Human Development Index is also close to that of Viet Nam’s. The Commission on Human Rights (CHR) is an independent body created through the 1987 Philippine Constitution. The Child Rights Centre of the CHR was initially created in 1994 by a presidential memorandum. However, in 2005 the Juvenile Justice and Welfare Act mandated the Child Rights Centre to monitor Government actions and “ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights”. The Child Rights Centre was created alongside other functioning bodies with a monitoring role within the Commission on Human Rights. The Congress had an oversight function to review the application, administration, execution and effectiveness of laws and programmes of the Philippine Government. Committees, which can call for investigations or inquiries, include a Committee on Women, Children and Family Relations in the Senate and a similar Committee at the House of Representatives.9 The Government’s Department of Social Welfare and Development manages social service delivery and includes an internal audit and inspection mechanism.10 The Philippines also rely on a highly developed civil society, with the largest number of NGOs in Asia and which organizations have been found “as some of the most vibrant and advanced in the world”.11

9 Email exchange with UNICEF-Philippines. 10 http://www.dswd.gov.ph/about-us/organization-and-functions/ Last accessed 9 July 2015. 11 Asian Development Bank, Civil Society Briefs – Philippines, 2013.

Philippines’ Council for the Welfare of Children and newly created Juvenile Justice and Welfare Council The Council for the Welfare of Children (CWC) is the primary Philippine Government agency mandated to coordinate programmes and interventions between Government and non-Government institutions with a stake in the implementation of programmes and delivery of services for children. Its board members include representatives from the departments of Health, Education, Social Welfare & Development, Interior & Local Government, Labour & Employment, Justice, and Agriculture as well as the National Nutrition Council, National Economic Development Authority, CWC and three citizens, one of whom is a youth. Its structure is supported by corresponding bodies at provincial, local, municipal and Barangay levels. It also has an existing functional network with NGOs focused on children to protect and promote children’s rights.14 The 2013 amendment of the Juvenile Justice and Welfare Act provided an opportunity for the creation of the Juvenile Justice and Welfare Council (JJWC), under the Department of Social Welfare and Development’s administrative supervision. It has a mandate to oversee the implementation of the Act, coordinate with different actors, provide technical assistance for implementation of child rights-related programmes, issue policy advice and recommendations as well as undertake research on trends, causes and problems of juvenile delinquency. It was also required by legislation to set up a mechanism to involve children in research and policy development. The JJWC is supported by Regional Juvenile Justice and Welfare Committees, with similar functions at local level.15 However, it is not independent and its mandate is focused on child protection and children in the welfare system due to inadequate parental care or contact with the law.

In practice, the Child Rights Centre operates as a special project under the CHR and reports to its chairperson. The Child Rights Centre’s work rests on the structure of the CHR, which includes offices at local level and at Barangay Human Rights Action Centres. Delegates from the Child Rights Centre are in place in 15 12 http://www.humantrafficking.org/organizations/286 Last accessed 9 July 2015 13 Republic Act No. 10630: An act strengthening the juvenile justice system in the Philippines, amending for the purpose Republic Act No. 9344, otherwise known as the “Juvenile Justice and Welfare Act of 2006” and appropriating funds therefore, Sec. 8.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Croatia’s Ombudsman for Children regional branches of the CHR.14 Preliminary findings from an assessment of the CHR conducted by the research team suggest it is not functioning as well as it could to insufficient human and financial resources.15 In 2009, the budget of the Child Rights Centre represented 0.3 percent of the Commission on Human Rights’ budget.16 While funding shortages are not unique to a child rights office, in fact the entire CHR faces this issue, the Child Rights Centre is particularly affected. In its 2009 Concluding Observations, the CRC Committee recommended that the State party provide adequate human and financial resources to the Child Rights Centre through the Commission on Human Rights of the Philippines, to ensure the centre undertakes its mandate effectively. It also recommended the centre be accorded adequate legal basis to carry out its activities independently. Lessons from the Philippines suggest that: It is important to ensure adequate visibility of children’s rights within a broader structure to avoid marginalization faced in State institutions, a key purpose of an independent child rights monitoring mechanism. Any ICRM must be adequately staffed and funded to avoid becoming ineffective, irrespective of having a solid mandate. A legal mandate is an essential guarantee of a ICRM’s long-term sustainability.

14 Third and Fourth Periodic Report to the CRC Committee, 2009, Paragraph 37.

Croatia today is a high-income country, which recently joined the European Union. It has, however, undergone a significant transition in recent years since it emerged from a regional war in 1991. The Ombudsman for Children was established in 2003, at a moment of great economic and political transition. It is an autonomous body, fully financed by the State and with a mandate established by legislation. Under the Law on the Ombudsman for Children, its role is defined to “protect, monitor and promote the rights and interests of children on the basis of the Constitution of the Republic of Croatia, international treaties and laws”. When discussions took place on the establishment of the Ombudsman for Children between 2001 and 2003, Croatia was still in a post-war period and under a left wing party majority. In fact, a General Ombudsman had been dealing with human rights issues for 12 years. At the time, there were significant discussions between proponents of a general ombudsman with a unit or deputy for children’s rights and those in favour of a specialized, autonomous office of the Ombudsman for Children on the other side. Those against an Ombudsman for Children claimed it was not rational to have more human rights institutions. However, despite the introduction of a deputy specialized in children’s matters in 1996 in the General Ombudsman’s Office, children’s rights were not recognized and children were not visible in the society.17 As a result, a separate ombudsman was created and while at times questioned and reviewed, has been retained. Croatia’s institutional system is well developed. Its Parliament includes various committees with mandates of particular relevance to children’s rights, in particular the Committee on Family, Youth and Sports, in charge of overseeing implementation of legislation in the

15 Email exchange with UNICEF-Philippines. 16 UNICEF Innocenti, Championing Children’s Rights – A Global Study of Independent Human Rights Institutions for Children, 2013.

17 Email exchange with Ombudsman for Children Office in Croatia.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

area of child protection.18 The Directorate for Family with the Department for Children and Youth within the Ministry of the Family, Veterans’ Affairs and Intergenerational Solidarity coordinates national policies and monitors CRC implementation. The Council for Children is a coordination body which permanently monitors implementation of national programmes for children, harmonizes the work of Government and other bodies in monitoring the application of the CRC and other international instruments and the implementation of national legislation and programmes.19 However, the Ombudsman for Children has pointed to its lack of effectiveness.20 This is in contrast to the country’s vibrant civil society, including in the area of children’s rights, with the Coordination of Associations for Children having a formal network of 27 CSOs. In 2003 Croatia, like in Viet Nam, had administrative inspections, parliamentary oversight, CSOs and a State Audit Office. Under the Law on the Ombudsman for Children (Article 6), Croatia’s Ombudsman for Children: Monitors the compliance of the laws and other regulations related to the protection of the rights and interests of children, with the provisions of the Constitution, CRC and other relevant international standards Monitors the fulfillment of Croatia’s obligations arising from the CRC and other relevant international standards Monitors the implementation of all regulations concerned with the protection of children’s rights and interests Monitors violations of individual rights of children and studies general occurrences of child rights violations Makes efforts towards protection and promotion of disabled children’s rights and interests 18 http://www.sabor.hr/Default.aspx?sec=4676 Last accessed 9 July 2015 19 Third and Fourth Periodic Reports to the CRC Committee, 2013.

Proposes measures for the creation of a coherent protection system and promotion of children’s rights and interests to prevent harmful activities jeopardizing such rights Informs the public on the state of children’s rights Performs other activities specified by law. Its mandate specifies direct engagement with children by informing them of their rights, ways to ensure their protection and by encouraging and seeking children’s views. It further includes enhancing the influence and status of children in society. The Ombudsman for Children’s powers are extensive. To fulfill its mandate, it can request information from State bodies, which are obligated to cooperate. It can also enter care institutions, public or private, to monitor children’s living conditions. Institutions are also obliged to inform the office of any follow-up actions to its recommendations. Its work started in July 2003 following adoption of the law. At first, there were three officials (ombudsman and two deputies), a secretary as well as two additional staff working under contract (an accountant and the graphic designer who designed the body’s logo and visual materials). For a short time, the office was located in a Governmental institution (State Department for Protecting Family, Motherhood and Youth) and funded from its budget until October 2003, when the special bank account for the ombudsman was opened. In 2004, the first whole year of functioning there were the Ombudsman, two deputies, three administrative and technical workers and five advisers (two lawyers and one psychologist, defectologist and social worker). The budget for the first whole year was 1,692,687 kunas (cca 245,509 USD). Today, there are 19 staff members (ombudsman, two deputies, four administrative and technical workers and 12 advisors who have been working from 2007 in four locations, the headquarters in the capital Zagreb and three offices in big cities).

20 Ombudsman for Children Supplementary Report to the CRC Committee, 2014.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

The budget for 2014 was 4,996,538 kunas (cca 724,703 USD).21 The office has the responsibility to monitor individual violations of childrenâ&#x20AC;&#x2122;s rights through an individual complaint mechanism. Between 2004 and 2014, the number of complaints more than tripled â&#x20AC;&#x201C; from 419 in 2004 to 989 in 2008 and 1,595 in 2014. This increase was reportedly driven by greater trust and expectations regarding the body as well as the opening of regional offices, which created a sudden surge. Complaints are primarily filed by mothers and fathers.22 In 2010, the office established a Network of Young Advisors composed of 25 children aged 12 to 18 years selected on the basis of a public invitation the Ombudsman published in media targeting children and through schools. They came from different parts of the country with a variety of experiences. Their main role is to advise the Ombudsman and encourage peers to take part in activities. The network regularly communicates through electronic means and has been found to be an effective child participation mechanism. However, many children are still unaware of the Ombudsman and the proportion of child-filed complaints remains low. A survey of professional experts revealed that childrenâ&#x20AC;&#x2122;s rights were now taken into account by all institutions working with and for children, including executive authorities. It also had the potential to be even more influential in policy and law-making.23 Lessons from the Croatian experience suggest that: A specialized mechanism can take a child rights approach to all of its work and its mandate can be grounded in child-centred legislation. Specifically, it can build

permanent and effective structures, based on a legal mandate for child participation. An extensive mandate in terms of competences must be backed by solid powers to obtain information and visit premises. Establishment processes with discussions and arguments in different settings and once a monitoring institution is established are useful. Monitoring institutions should evolve over time depending on local needs as the initial budget and number of staff is limited. Strong linkages with and/or delegations at local level are critical for children to access the mechanism.

21 Information provided by Ombudsman for Children Office in Croatia. 22 Ombudsman for Children, Ten Years of the Ombudsman for Children in the Republic of Croatia, Achievements and Challenges, 2013. 23 Ombudsman for Children, Ten Years of the Ombudsman for Children in the Republic of Croatia, Achievements and Challenges, 2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Latin America’s Children’s Defenders In Latin America, children’s defenders (Defensorías de la ninez) have been established in 16 countries within human rights defenders’ offices.24 They, however, often have a mandate based on separate legislation, usually the main child law. In these countries, children’s defenders have been created in context of the adoption of comprehensive child rights approaches in legislation – often called “children’s codes” – as a guarantee for the implementation of the law from a child rights perspective. Their creation has usually been achieved in the context of broader democratization, alongside parliamentary structures, national councils for children and the expansion of a vibrant civil society.

Guatemala’s Children and Adolescents’ Defender (Defensoria de la ninez y adolescencia) Guatemala ranks close to Viet Nam on the Human Development Index as of 2014. It has a number of socio-geographic similarities, with indigenous peoples living in mountainous areas and featuring significant disparities with the rest of the population in terms of rights realization and development indicators. Guatemala’s Children and Adolescents’ Defender is part of a broader human rights institution, but it has a specific, dedicated mandate enshrined in the Consolidated Child and Adolescent Protection Law of 2003. Its role is to defend, protect and promote children’s rights in society and compliance with relevant international and domestic instruments. Its functions are to: Protect children and adolescents’ rights through investigating reports of violations to determine responsibilities, stop violations articulate their complaints and promote measures before competent bodies 24 UNICEF Innocenti, Championing Children’s Rights – A Global Study of Independent Human Rights Institutions for Children, 2013

Monitor compliance by authorities in charge of protection of children and adolescents as per the CRC Oversee Government and non-Governmental child and adolescent-care institutions to monitor conditions, ensure adequate measures are taken and recommendations followed up Coordinate with State institutions and non-governmental organizations (NGOs) at national and international levels, in particular those with a focus on protection of children and adolescents Carry out preventative actions through conferences, forums and media outreach Coordinate with department(s) in charge of promotion and education on children and adolescents’ rights and protection mechanisms Coordinate with associations for child rights education programmes Any other functions not expressly listed inherent to the work of the defender. Its powers are in line with those of the human rights institution it is integrated into. The Children and Adolescents’ Defender can investigate complaints about any child rights filed by anyone with no restriction and undertake a thorough assessment of the situation of children’s rights in the country on an annual basis. It reviews a range of issues that affect children’s rights and examines how public policies address them, using external sources and compiling data in one document presented to Parliament to draw a comprehensive picture of the situation. For example, it reported on the evolution of direct public expenditure on children and adolescents by executive agencies, followed the evolution of domestic violence complaints before the judiciary and has obtained related data on adolescent

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

pregnancies.25 Importantly, it has encouraged municipal committees to protect children and adolescents. Approximately 150 committees, mostly volunteers, are elected at a municipal level to monitor and respond to child rights violations, by mediating solutions or reporting cases to the judiciary. The structure to which the Children and Adolescents’ Defender belongs, a broad-based human rights institution, is among citizens’ most trusted institutions in a country where most public institutions enjoy little trust from society.26 Lessons from Guatemala for an ICRM in Viet Nam include: Comprehensive legislation with extensive powers is important to ensure the monitoring mechanism can fulfill its duty to protect children’s rights The monitoring mechanism does not need to collect data, but instead use data collected by others to draw a picture of the situation of children’s rights The existence of local bodies is an important guarantor of children’s accessibility Monitoring mechanisms must be attached to a structure that enjoys society’s trust.

Colombia’s Deputy Ombudsperson for Childhood, Youth and Older Adults Colombia is a Latin American country in the upper middle-income range. However, it features significant disparities with more than 30 percent of the population living below the poverty line. Its population includes various ethnic groups and indigenous peoples. Its geography features a mix of highlands, rainforests and coastal areas. 25 Annual Report 2013, p. 155. 26 Dinorah Azpuru, Cultura politica de la democracia en Guatemala y las Americas: Hacia la igualdad de oportunidades, Latin American Public Opinion Project, Vanderbilt University, December 2012.

Colombia’s deputy ombudsperson for childhood, youth and older adults (Defensoría delegada para la Infancia, la Juventud y Adulto Mayor) was established in 1999 as part of the ombudsman institution of Colombia, the Defensoría del Pueblo. Interestingly, like the Guatemalan model, it operates under the Child Law, which gives it a specific child rights mandate. Under Article 210 of the Children’s Code of 2006, it is explicitly part of the monitoring system for the implementation of the law, along with the General Procuracy, the Audit Office, local legal entities, inspection and control offices and CSOs. Consequently, it operates alongside other bodies within a monitoring function. Article 213 of the Children’s Code describes its exact functions to ensure the “dissemination, protection, promotion of rights and follow up on public policies that affect the rights of boys, girls and adolescents, in line with the Constitution and legislation”. The mechanism has important competencies for the protection of children’s rights. The Children’s Code specifies it has a role in ensuring rights education for children and that children in conflict with the law have access to legal counsel through the legal assistance service managed by the ombudsman’s office. It can also take a case to court if a child’s rights have been violated and visit any public or private entity to investigate a complaint or prevent a human rights violation. An interesting feature of this model is its local level connections through local branches and community defenders. Community defenders operate on the ground to help mediate issues and work as an alternative conflict resolution mechanism that is an effective tool to prevent violations and support families in addressing problems before they escalate. The Colombian independent monitoring mechanism has also developed an early alert system which acts upon reports of imminent threats to children’s rights. Building on its pedigree of trust with grassroots organizations, the latter informs it

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

on possible threats and the defender can use its political clout to take action. Colombiaâ&#x20AC;&#x2122;s deputy ombudsperson for childhood, youth and older adults has enhanced childrenâ&#x20AC;&#x2122;s direct access and rights promotion through the development of a child-friendly website, which informs children of their rights in a pedagogic way and contains a form, through which children can contact the office. In a highly sensitive national context, the mechanism has managed to play a significant role in monitoring child rights and have a tangible impact in preventing violations. Lessons from Colombia for an ICRM in Viet Nam include: An ICRM can work alongside existing monitoring mechanisms. Its role focuses on alternative resolution methods, prevention of violations, monitoring of policy implementation as well as rights education and promotion Locally based branches are critical to access information at grassroots level to enable adequate monitoring and preventative actions Trust and cooperation with civil society is an important element for an ICRMâ&#x20AC;&#x2122;s effectiveness. Given its independent nature, CSOs can help to improve the work of the mechanism. The ability to refer a case to the justice system and provide legal support to a child is a critical complement to alternative methods of resolution Child-sensitive tools, including an accessible website, is an important step to make the mechanism child-friendly and accessible for children.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Current child rights monitoring system in Viet Nam

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

A number of UN charter-based and treaty bodies27 have recommended Viet Nam establish relevant independent bodies for monitoring human rights implementation. However, no such body is in place. With respect to child rights monitoring in particular, the CRC Committee recommended Viet Nam establish an independent body in line with General Comment No. 2 in 2003 and 2012.28 As a follow-up, the Government committed in its Decision 535 related to the implementation of CRC Concluding Observations to consider the establishment of such an institution.29 The existing system for child rights monitoring in Viet Nam has undergone numerous changes in the past decade. Overall, children’s issues only recently gained increased attention, having not been high on the agenda of institutional building and reform. Before 2007, the National Committee on Population, Family and Children mandated by the Law on Child Protection, Care and Education (2004) acted as a key coordination mechanism for children’s rights. According to informants, it had numerous weaknesses in terms of effectiveness and political clout. A number of actors identified its dissolution in 2008, as part of a broader downsizing movement in the public sector in response to the public administration reform requirement, as a great loss for the visibility of children in Government policy action. Child rights work has since moved to the MOLISA as one department which is Department for Protection and Care of Children 27 For instance, CERD in 2001 recommended the establishment of a national human rights institution (A/56/18, Paragraph 97) and in 2012 “regrets the overall absence of concrete actions and time frames for the establishment of a national human rights institution in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).” (CERD/C/VNM/CO/10-14, Paragraph 11). Similar recommendations were made by CESCR in 2014 (E/C.12/VNM/CO/2-4), at the UPR by the UN Human Rights Council in 2009 and 2014 and by other UNHRC special procedures following country visits. 28 CRC’s Concluding Observations in 2003 (CRC/C/15/Add.200 on 18 March 2003 Paragraphs 12 and 13) and in 2012 (CRC/C/VNM/CO/3-4 Paragraphs 8, 15 and 16). 29 Decision No.535/Ttg by the Prime Minister dated 14/04/2014 on the approval of the plan for implementation of CRC’s Concluding Observations.

(here referred to as the Children’s Department). The work on children issues added as a new mandate went through a challenging integration process into the ministry’s internal structure, for example a labour inspection system with little experience of children’s issues. The new status of the Children’s Department reportedly resulted in difficulties for it to ensure coordination with other Government actors, affecting holistic approaches for policies. The structure also lost its connection to district and commune levels, leaving child rights with a rootless system30 for several years. The situation has been gradually addressed, as the MOLISA is currently in the process of strengthening its children-focused work, especially staffing at district and commune levels. In elected bodies, children’s issues are overseen by the National Assembly’s Committee on Culture, Education, Youth and Children. The fact that the majority of elected body members at all levels serve on a part-time basis has hampered their effectiveness. According to the current political structure, at the provincial level, children’s issues have become less visible under the Department of Social and Cultural Affairs of People’s Councils and have not enjoyed a permanent nor systematic monitoring agenda as part of councils’ routine work. Outside the formal State structure, general public monitoring on policy implementation or social accountability falls under the official mandate of the Fatherland Front and its members, plus a weak but emerging civil society. The existing legal framework on child protection and care recognizes the official role of monitoring and collaboration in policy delivery by the Fatherland Front, Women’s Union, Youth and Children Pioneer31 and VAPCR.32 The Fatherland Front gained a more important role in performing monitoring and social critiques following the Constitution 2013 30 Commented by informants. 31 Law on Child Protection, Care and Education, Article 34. 32 VAPCR is recognized in Decision No. 1555/QD-Ttg dated 17/10/2012 of the Prime Minister on the approval of the National Action Plan for Children 2012-2020 (Article 2, Paragraph 13).

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Government monitoring Government monitoring in Viet Nam chiefly includes the inspection system in place in each ministry to monitor compliance with general rules and regulations. Although not currently in place, it may also include a potential coordination mechanism, dismantled and is now under consideration for re-establishment under the draft Children’s Law. The inspection system primarily deals with monitoring of compliance with rules and regulations by related bodies and agencies within respective ministries. Correspondingly, each ministry has its own system. The MOLISA carries out inspections of child protection institutions, while the Ministry of Education has school inspections and the Ministry of Health inspects health care centres and hospitals.

and is likely to undergo fundamental changes in the next decade to enhance its capacity and effectiveness. A key actor in this space is VAPCR, an organization established as a result of 2008’s system reforms on child rights governance. VAPCR has a unique position in the system and increasingly recognized by State agencies and civil society. In addition to these organizations, there is an increasing interest in children’s issues and approaches from an emerging civil society with growing new civil groups and organizations. The following analysis presents in greater detail the nature of different institutions and players in the existing system, as well as their strengths and weaknesses in relation to the characteristics of an independent child rights monitoring mechanism detailed earlier in this report.

For child rights monitoring, most interviewed stakeholders pointed to the MOLISA’s inspectorate as a sectoral inspection mechanism in charge of children’s affairs. Decree 39/2013 provides 10 areas of work for the inspectorate, which MOLISA divided into six branches.33 For children’s affairs, the inspectorate is in charge of inspecting “[the] implementation of the laws and regulations on children protection and care within the scope of mandate and responsibility of the MOLISA: the implementation of the National Action Plan for Children. The programme on children protection, care and education of children in special needs, and other programmes and plans on children protection, care and education”.34 Interviews with informants on their understanding of the current inspection system highlighted the following points. 33 Six branches under the Chief Inspector of MOLISA are: General A airs and Administrative Inspection, Inspection of Policies on People with Special Contributions to the Country, Labour Policy Inspection, Labour Occupational Safety and Health Inspection, Inspection of Policies on Children and Social Issues, Citizen Engagement and Settlement of Claims and Denunciations (ILO, 2012. Viet Nam Labour Inspection Needs Assessment), accessed at http://www.ilo. org/wcmsp5/groups/public/---ed_dialogue/---lab_admin/ documents/publication/wcms_194431.pdf 34 Decree 39/2013/ND-CP dated 24/4/2013 on Organization and Operation of the Inspectorate of the sector of Labour, Invalids and Social Affairs, Article 20, para. (g).

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Strengths The system has been in place for decades, is well integrated into administrative mechanisms, well recognized and accepted. Because it is undertaken by ministries over agencies they have hierarchical authority over, the mechanism has an important binding aspect. It is presumably conducted by staff with a technical knowledge of pertinent issues. Informants explained that when a problem is reported, inspections are carried out. For example, when the MOLISA learns about a child abuse case at an institution, it visits the site and issues recommendations. The number and scope of these inspections is unclear, as no detailed inspection report is publicly available. Informants reported that inspections included direct interactions with children and consultations on the inspected setting. However, the precise nature of these consultations, and whether they are held in adequate conditions of confidentiality and anonymity is uncertain.

Weaknesses This monitoring system presents a number of shortcomings for child rights monitoring. First, it mainly consists of monitoring compliance with existing rules, primarily from an administrative standpoint. The focus is on how service providers operate and whether they respect standards and procedures. However, child rights monitoring is child centred and focuses on whether child rights are respected, beyond respect for rules. Another important element relates to the sector-approach inherent to a ministryâ&#x20AC;&#x2122;s organization of the inspection system. While each ministry may carry out in-depth inspections of implementation in the field by its own agencies, the way actions by such agencies interact and are coordinated cannot be included in such monitoring mechanisms, which are bound by each ministriesâ&#x20AC;&#x2122; jurisdiction.

There is also no opportunity for a systemic review of how various components of the child protection system interact. Even within a sector, the hierarchy of the administrative system makes it difficult for a local level agency to act beyond its boundary of responsibility. While every service provider may adequately fulfill its duties, some children may fall between the cracks due to a lack of coordination and gaps in the system. A question arises as to the ability of children who live, spend time in or are in contact with, structures and agencies managed by ministries to report a problem in privacy and confidentiality. Thus far, informants recounted that information on child abuse for example is usually unveiled by the media. However, it is unclear how many cases are hidden due to lack of a reporting mechanism independent from these structures and accessible in conditions of confidentiality for children. For the MOLISA inspection system, highlighted by interviewed stakeholders as the most relevant monitoring structure, it is characterized by a primary focus on labour issues and limited child rights inspection experience. The MOLISA is implementing a comprehensive plan to strengthen the capacity of its inspection structure till 2020.35 At provincial level, coverage of one inspector per district will be achieved. However, childrenâ&#x20AC;&#x2122;s issues have been placed as a sub-topic under inspections for children, gender equality and social welfare, while labour issues have received more attention. Finally, if those responsible for designing and managing child protection services are also the monitors, there could be a conflict of interest and broader difficulties in ensuring a comprehensive overview from an impartial and external perspective.

35 Decision 2155/QD-Ttg dated 11/11/2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Oversight function of the National Assembly As per the 2013 Constitution, the National Assembly exercises “supreme control over all activities of the State”.36 A new Law on the Organization of the National Assembly was adopted in November 2014. It provides for the distribution of work across committees, the role of the Standing Committee, status of deputies and overall functioning of the National Assembly. Constitution (2013) Article 70 The National Assembly has the following tasks and powers: 1. To make and amend the Constitution, to make and amend laws 2. To exercise the power of supreme oversight over the observance of the Constitution, laws and resolutions of the National Assembly, to review work reports of the President, Standing Committee of the National Assembly, Government, Supreme People’s Court, Supreme People’s Procuracy, National Election Council, State Audit Office and other agencies established by the National Assembly.

The oversight function of the National Assembly in relation to children’s rights primarily falls under the competency of the Committee on Culture, Education, Youth and Children (CEYC). While children’s issues in the Government are part of a broader ministry dealing with social affairs (MOLISA), they are not included in another relevant parliamentary committee, the Committee on Social Affairs, which deals with women’s rights and gender equality. A proposal to dissociate issues related to youth and children from culture and education through the creation of a specialized committee during the discussion of the Child Law was not retained. The CEYC currently has four vice chairpersons, one of whom is specifically in charge of children’s issues. In addition to its five leaders, the committee has one standing full time member, two permanent members at central level, six permanent members at provincial level and 27 part-time members. 36 Article 69.

All committee members play other important roles either within the National Assembly, as a provincial representative or in their daily professional role(s).37 For children’s issues, the CEYC is supported by a technical group of three staff, under the leadership of a vice chairperson.

Strengths The National Assembly’s oversight role represents a significant strength in many respects and makes the Vietnamese parliament an important element of child rights monitoring. The constitutional status of the National Assembly and its role as the supreme supervisory body over the Government and other public bodies is a critical asset. It places the National Assembly on an equal footing with other State bodies and guarantees it has political clout. Furthermore, the 2013 Constitution outlines specific powers granted to the National Assembly to carry out its oversight function, in particular the right to access information and review complaints on rights violations. Specifically, National Assembly representatives undertake monitoring visits to provinces to assess the situation on the ground and review laws prior to adoption to assess possible impacts on children’s rights. National Assembly representatives also have direct contact with community realities through two main channels. Firstly, the representatives have a base in provinces where they have been elected, with an office at provincial level with support and mainly administrative staff. Citizens can directly interact with representatives and file requests or complaints. This allows representatives to understand a province’s particular situation, its main actors and key issues citizens face. Secondly, at provincial level representatives have direct links with People’s Councils, the legislative branch at provincial level. The Law on the Organization 37 A detailed introduction about CECY is available at: http:// quochoi.vn/gioithieu/caccoquanquochoi/hoidongdantocvacacuyban/uybanvanhoagiaoducthanhnienthieunienvanhidong/Pages/thanh-vien.aspx

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

of the National Assembly provides that: “Deputies of the National Assembly shall have the right to participate in the meetings of the People’s Councils of all levels where they have been elected, and shall have the right to contribute comments on the fields of State management, and those issues relating to the lives of the people and other issues that the deputies are interested in”.38 Their visits to provinces have further evidenced the close working relationship that exists between the two legislative bodies, which often work on the same premises. This ensures a link between national and local levels. The National Assembly also has a duty to examine reports submitted by the Fatherland Front “summarizing comments and proposals from nationwide citizens”.39 This mechanism is meant to ensure that people have a direct and formal channel to express views with the National Assembly. The National Assembly has a mandate to support citizens in exercising their rights to file a complaint (Article 79 of the Constitution), handle proposals, denouncements and complaints from citizens (Article 28 of the Law on Organization of the National Assembly) and ensure settlements and follow-ups (law and Constitution). It has a dedicated office, the Department for Public Complaints and Petitions, which according to informants primarily operates as an administrative secretariat. It receives complaints and directs them to relevant committees depending on the subject matter. National Assembly representatives at local level also facilitate resolution of complaints filed by citizens at local level. Complaints are usually handled by mediating a solution or directing a responsible body to act upon a case, utilizing the respected status of the National Assembly and its influence.

Weaknesses The National Assembly’s oversight function, however, is limited by a number of weaknesses. 38 Article 36 39 Article 20 of Law on Organization of the National Assembly.

Firstly, the National Assembly faces a significant lack of capacity as most representatives only exercise their functions on a part-time basis and usually first meet responsibilities to Government agencies, therefore offering limited neutrality in terms of oversight. In fact, only a third work on a full-time basis for the National Assembly. Furthermore non-elected National Assembly Office staff who ensure support functions for parliamentarians are limited to twenty persons for each committee. This means for the CEYC, only four are in charge of overseeing children’s issues. Consequently, National Assembly representatives are often overwhelmed by the workload created by the high number of laws to be reviewed in the context of ongoing reforms, in addition to the many regular duties the National Assembly fulfills. In various interviews, informants reported the lack of human resources as a major problem in adequately fulfilling duties. Many representatives also possess limited technical skills for in-depth examinations of issues. They are often trained “on-the-job” and have little previous knowledge of issues they are meant to tackle.40 Studies have shed light on the numerous challenges National Assembly representatives face in fulfilling their oversight functions. Access to relevant information, critical to conducting quality oversight, is limited by the quality of information received. A report based on a survey of deputies concluded that timeliness, quality and accessibility of information provided by Government agencies was insufficient.41 Similarly, oversight functions meet numerous challenges. Hearing sessions with the Government are an important tool for oversight, but there limited follow-ups and most achievements are due to individual initiatives rather than systemic strengths. Supervisory activities typically end with the submission of a report, but do not extend to overseeing the 40 Asia Foundation, Toward more Effective Government Oversight by the National Assembly of Viet Nam, January 2013. 41 Asia Foundation, Improving the Effectiveness of Information Provision for National Assembly Deputies, October 2013, p. 20.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

implementation of recommendations made.42 These findings corroborate information gathered by the research team in interviews with part-time and full-time National Assembly representatives based in Ha Noi and provinces. While monitoring visits are performed, they are usually limited to one per year and cannot be considered a permanent monitoring mechanism. Furthermore, few National Assembly reports are little followed by concrete actions and consequently have limited effect. On a technical level, the reportedly limited coordination among committees is a major concern regarding the interdependence and indivisible nature of children’s rights. While children’s issues are addressed under the CEYC, other committees deal with issues that also have important impacts on the realization of children’s rights. However, there is no system in place to ensure proper coordination among committees. Currently, coordination occurs on an ad-hoc basis and is hindered by the heavy workloads of each committee and a culture of limited coordination. On another level, with children’s rights placed under a committee dealing with a range of issues which traditionally have limited political clout and often seen as ancillary, they are likely to have limited visibility within the National Assembly’s work. Significantly, a survey carried out among National Assembly representatives revealed that only 12 percent had an interest in youth and children issues - ranking fourth to last and only ahead of culture-sports-tourism, religion and international relations, out of 16 topics. Conversely, economics, agriculture and education were top.43 A further issue related to inherent gaps in National Assembly oversight is its supervision of State bodies, but not private organizations such as businesses nor mass organizations which can have significant impacts on children’s rights, directly or indirectly.

In relation to the complaints mechanism, it is unclear whether children can directly file a complaint with National Assembly representatives or whether this ability is linked to legal capacity and involves legal representation. This issue is of critical relevance for child rights monitoring. The ability to file a complaint ensures children’s access to a remedy when their rights are violated and fosters a direct link between the National Assembly’s work and children’s experiences. Finally, the National Assembly cannot by definition oversee its own work. Yet, its decisions can have significant impacts on children’s rights as a number of laws do. Budget decisions, including fiscal policy and allocation of resources to specific issues, leave a large footprint on children’s rights and as such should be monitored.

42 Asia Foundation, Toward more Effective Government Oversight by the National Assembly of Viet Nam, January 2013. 43 Asia Foundation, Improving the Effectiveness of Information Provision for National Assembly Deputies, October 2013, p. 10.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Role of mass organizations and civil society Mass organizations, the Vietnamese equivalent to CSOs including associations, political groups and trade unions, in other national contexts operate under State supervision. The majority of these organizations have been grouped under the Fatherland Front, which has constitutional status and a specific, recognized, role in the State structure. This section examines the Fatherland Front’s role as the overarching mechanism under which mass organizations operate along with two key organizations with specific roles with respect to children’s rights, the Ho Chi Minh Communist Youth Union and the Women’s Union, as well as a third group of emerging NGOs, including a significant NGO namely the VAPCR. The Fatherland Front represents various social classes strata, ethnic groups, religions including overseas Vietnamese, and has an important monitoring role. Under the 2013 Constitution, it “practices social supervision and makes criticisms”. Put differently, it is also a social accountability mechanism, a channel through which citizens, represented by various social organizational structures, express their views. The Fatherland Front presents reports to the National Assembly on an annual basis. It is part of the National Assembly’s competences to consider these reports and recommendations. It also operates as a key mechanism at local level, in accordance with 2007’s Ordinance on Grassroots Democracy. The Youth Union, which represents young people aged 16 to 30 years nationwide, is part of the Fatherland Front. Under the 2004 Law on Child Protection, Care and Education, it is responsible for organizing social activities in which children can participate. The draft revised Children’s Law also gives it a primary role as a child participation mechanism, within the context of increased attention given to children’s participation. The Women’s Union is among the oldest social political organizations in Viet Nam. It has 15

million members organized into four levels from central to provincial, district and commune levels. Its administrative structure is funded from the State budget following the salary scale of civil servants. Its role in monitoring the implementation of the Law on Child Protection, Education and Care was officially recognized in law as a member organization of the Fatherland Front (Article 34, Paragraph 1) and in the National Action Plan for Children 2012-2020 (Decision No.1555/QD, Article 2, Paragraph 13). However in its own strategy statement (2012-2017), work related to children was not explicitly spelt out.44 Emerging NGOs In the past five years, civil society in Viet Nam has emerged with more vibrant groups and organizations working on various issues including children, but mostly taking a needs-based approach. On the other hand, national NGOs are increasing capacity to engage in policy dialogues and advocacy. Dozens of organizations are now actively engaged in human rights advocacy, however less than a handful of national NGOs or CSOs are working pragmatically on child rights, with the most visible probably the VAPCR.45 The VAPCR is a social organization created in 2008, which as per its statute aims to regroup individuals and organizations to promote children’s rights and prevent violations. It was founded by now retired members of the National Committee on Population, Family and Children and its current Vice Chair is the Deputy Minister of MOLISA. 44 See introduction about Viet Nam Women’s Union, its goals and key activities for 2012-2017 at http://vwu.vn/newsdetail. asp?CatId=2&NewsId=18276&lang=VN 45 For instance, in the joint submission of national CSOs to the CRC in 2009, only two organizations were national and the rest international NGOs. The President of the VAPCR in a recent interview mentioned seven national organizations which mandates specialized towards children, with 71 organizations and foundations with approved activities related to children following a survey by VAPCR in 2012 (accessed at http://www.treemviet.vn/hoi-bao-ve-quyentre-em-viet-nam-phan-dau-tro-thanh-hoi-chuyen-nghiepbao-ve-quyen-tre-em.html)

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Strengths Fatherland Front The Fatherland Front enjoys constitutional status and its monitoring role is recognized in the 2013 Constitution and the newly revised Law on the Fatherland Front adopted in May 2015. Overall, it is considered one of the State’s pillars and recent reforms have led to the creation of specialized committees dealing with thematic issues, though none specifically focus on children and youth. The Fatherland Front coordinates a wide range of organizations operating at grassroots level. Many such organizations are involved in direct service delivery. As a result, in theory it has access to a range of experiences its members are exposed to as part of their daily work. It also has specific responsibility under the Ordinance on Grassroots Democracy (2007) to supervise local democracy and mobilize participation. However, no organization specializing in child rights is among its members. Youth Union The Youth Union is by definition composed of “young” people. It is placed under the Communist Party of Viet Nam and as such is a respected structure with some potential level of influence. Its role in relation to children’s rights, in particular child participation, is recognized and anchored in legislation. It has members at local level nationwide. In consultations at commune level, some citizens indicated the local Youth Union member could be consulted on child rights issues and help solve problems. Youth Union members are often destined to become Party officials and play a role in policy-making.

Due to its composition of former high-level Government officials enjoying respect and influence in Government spheres, the VAPCR can count on solid linkages with the Government and is widely recognized as the reference point for child rights issues by a number of actors working in this field as it gathers a high level of expertise and individual commitment. Notwithstanding the fact that it was held on a holiday week, the consultation VAPCR facilitated on an independent child rights monitoring mechanism mobilized a significant number of key relevant actors, suggesting a certain level of political leverage and trust. As the VAPCR is a federation of organizations, it works with a number of organizations providing direct local level services to children. This provides direct access to children’s experiences and problems in the field as well as ensures a reportedly good level of communication between local organizations and work performed at central level. Other NGOs have engaged in child rights work recently, such as the Research and Training Centre for Community Development (RTCCD) based in Ha Noi and Centre for Community Development and Social Work (CODES) based in Hue, which have recently been active in working on child rights-related issues. However, a broad based child rights approach and systematic monitoring has yet to be achieved compared to the VAPCR.

VAPCR

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Weaknesses Fatherland Front While the Fatherland Front has direct contact with mass organizations working on the ground, it is unclear whether this role is geared towards coordinating or overseeing actions. This is an important point, as a critical factor for effective child rights monitoring is trust and a collaborative relationship with all stakeholders. The Fatherland Front’s current approach to monitoring issues is ad-hoc rather than based on a permanent structure for a specific issue. At provincial level, the Fatherland Front works closely under direction of the Party’s Bureau, which it consults step-by-step in the exercise of its monitoring mandate, from selection of issues to monitor to the presentation of findings and recommendations. Another limitation is its constitutional mandate is focused on social accountability, a necessary yet only one dimension of accountability. Social accountability designates “a broad range of activities in which individuals and civil society organisations act directly or indirectly to mobilize demand for accountability”.46 Through the Fatherland Front, citizens are called on to participate in decision-making and provide social critiques. Formal accountability is centred on State institutions and includes political accountability (parliamentary oversight), administrative accountability (inspections), judicial accountability before the courts, and independent oversight bodies and quasi-judicial accountability.47 The strength of independent child rights monitoring mechanisms is precisely to bridge social and formal accountability. Yet the Fatherland Front is not part of the State system per se, hence its influence on policy-making is uncertain, like all social organizations.

46 OHCHR and Centre for Economic and Social Rights, Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda, 2013, p.44. 47 OHCHR and Centre for Economic and Social Rights, Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda, 2013, pp. 32-43.

Furthermore, the Fatherland Front is not equipped with a specific child rights structure, other than the Youth Union. With regards to children’s issues, the Fatherland Front and its member, the Women’s Union, are known for providing humanitarian assistance to children and organizing celebrations on national holidays for children at local level. Its substantive work on child rights monitoring was largely unknown by stakeholders during consultations. Ho Chi Minh Communist Youth Union The Youth Union is composed of young people who have direct access to children at local level, but who for the most part are not children themselves. The union is closely linked to the Communist Party and does not represent an autonomous structure. As a result, children’s views expressed in this framework may need to be contextualized with other political objectives. Furthermore, the union has limited experience in working with children from marginalized or excluded groups or taking a child-rights approach to its work. VAPCR While the VAPCR enjoys a solid reputation among specialized actors, interviews with stakeholders beyond those specifically working on children’s issues not familiar with the association suggested it remained specialized. While some organizations enjoy higher status through official recognition by the State, the VAPCR is not one of them and this affects its overall influence. The VAPCR relies on a small number of highly respected, competent and committed individuals who have retired from official functions. Its chairperson is a renowned figure with a high level of authority in the field. However, the association is highly personalized and largely relies on the clout of the individuals that have created it, rather than structural strengths. A highly relevant question is whether it could survive without these high-profile individuals? Moreover, it reportedly faces

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Justice system In principle, the judiciary is the primary resort for redress when a child rights violation is committed. The justice system includes civil, criminal and administrative law, which are all of direct relevance to the realization of children’s rights. However, the justice system is largely under utilized in this respect in Viet Nam. A report on governance institutions in Viet Nam highlighted that “courts are not used in Viet Nam to the extent they are in other countries”.48 There are relatively few lawyers and the National Bar Association was only established in 2009.49 For child rights, despite recent progress the issue is compounded by the lack of a specialized, child-sensitive justice system in practice50.

Strengths

funding pressures, with current sources almost exclusively from child rights actors. Some informants reported that while it was consulted and its proposals listened to, its tangible policy-making impacts remain marginal due to a lack of a participatory ethos within the formal State structure. Overall, civil society in Viet Nam is considered at the bottom of the ladder in terms of influence. Significantly, its publications are the least consulted by parliamentarians, according to the Asia Foundation, less than official sources of information and media reports. While it constitutes an important voice the traditional structures, which are largely State-centred, tend to relegate mass organizations to a secondary role and support function. They do not interact on an equal basis with established State institutions and cannot fulfill the role of an ICRM as a State institution.

Viet Nam has a legal aid system in place, which children can benefit from. The Ministry of Justice’s Legal Aid Agency was established in 1997 and operates under the 2006 Law on Legal Aid, which provides free representation to individuals or households with an income level below a certain threshold (depending on the province) to those with low incomes, ethnic minorities and other groups including “helpless children”. The Law on Legal Aid provides that a legal representative may request legal aid on behalf of a child.51 The agency has provincial centres with some specialized in women’s affairs, district branches and communal legal aid clubs. The latter play an important role in informing people about their rights and entitlements to legal aid. Mobile legal clinics support the provision of legal aid services, inform citizens on legal issues and help

48 Viet Nam Development Report 2010, Modern Institutions, Joint Donor Report to the Viet Nam Consultative Group Meeting (Ha Noi, 3-4 December 2009), p. 80. 49 Viet Nam Development Report 2010, Modern Institutions, Joint Donor Report to the Viet Nam Consultative Group Meeting (Ha Noi, 3-4 December 2009). 50 The new Law on the organisation of the People’s Court (2014) established a Court on Family relations and adolescents in the court system 51 CRIN, Access to Justice for Children: Viet Nam, September 2014.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

solve cases52, but few would have capacity to reach children. The Law on the Organization of the Supreme People’s Court, passed by the National Assembly on 24 November 2014, establishes the new Family and Juvenile Court. While still to be established and staffed with trained professionals, the court is likely to significantly enhance children’s access to justice and protect children’s rights.

Weaknesses Although the CRC could in principle be invoked before courts, research on the topic has not identified cases where the CRC has been quoted in judgments.53 There are a number of obstacles to children’s access to justice in Viet Nam, with restrictions on legal capacity a significant barrier. According to the Civil Procedure Code, children under six years of age have no civil procedural capacity, meaning they cannot authorize a legal representative to participate in civil procedures on their behalf. Children between six and 18 years of age can only bring cases through a lawful representative, but they have the right to authorize representatives to act on their behalf. Children between the ages of 15 and 18 years must generally be represented, except in relation to labour, property law cases in their own name, where they have the right to participate, but the court may nonetheless choose to involve their parent.54 Another study has raised a common question in relation to legal representation: “The term ‘lawful representative’ is not defined, but it is used independently from the term ‘custodian’ and, although parents are the default representatives of their children, children are permitted to have other persons as their representatives at 52 Viet Nam Development Report 2010, Modern Institutions, Joint Donor Report to the Viet Nam Consultative Group Meeting (Ha Noi, 3-4 December 2009). 53 CRIN, Access to Justice for Children: Viet Nam, September 2014. 54 CRIN, Access to Justice for Children: Viet Nam, September 2014.

law. Since the term ‘lawful representative’ is used in other places in the Civil Procedure Code to mean attorneys or officers for organizations, these abovementioned provisions should be interpreted to mean that children cannot bring cases pro se, but can do so with an attorney”.55 The question of legal aid arises here too. A review of a legal aid framework evaluation revealed it had become more restrictive with adoption of the 2006 Law on Legal Aid. This Law has limited beneficiaries “from broad categories such as ethnic minorities and children, to narrower sets such as ethnic minorities living in areas with exceptionally difficult socio-economic conditions, and homeless children”.56 The law has further excluded women victims of domestic violence and trafficking, juveniles, people affected by HIV/AIDS and ex-detainees from receiving legal aid, contrary to the previous regime. As a result, the number of cases dwindled after 2006 and slightly increased in 2008. Lack of funding is a major challenge.57 A report on the juvenile justice system in Viet Nam further highlighted a number of shortcomings, including the lack of child-sensitive structures and overall family support and social assistance, limited access to legal counsel for children in contact with the law, and lack of trained professionals, among others.58 The lack of specialized courts until recently has represented an additional challenge to children’s access to justice, which while likely to change, experiences from other countries show such evolutions take time.

55 CRIN, Access to Justice for Children: Viet Nam, September 2014. 56 Viet Nam Development Report 2010, Modern Institutions, Joint Donor Report to the Viet Nam Consultative Group Meeting (Ha Noi, 3-4 December 2009), p. 96. 57 Viet Nam Development Report 2010, Modern Institutions, Joint Donor Report to the Viet Nam Consultative Group Meeting (Ha Noi, 3-4 December 2009) 58 The Raoul Wallenberg Institute of Human Rights and Humanitarian Law, A Measure of Last Resort? The Current Status of Juvenile Justice in ASEAN Member States, pp. 194-195.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Legal gap analysis

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Independent child rights monitoring relies on a number of legal mandates and competencies essential for effectiveness. Many informants highlighted monitoring mechanisms that already exist in Viet Nam. Yet, the country’s legal system presents a number of gaps and insufficiencies in providing an enabling environment needed for effective monitoring of children’s rights. In light of General Comment No.2 of the Committee on the Rights of the Child, an analysis of existing legislation pinpointed the following gaps: Specific mention of the CRC and its Optional Protocols. As per its 2013 Constitution, Viet Nam committed to “conform to the Charter of the United Nations and international treaties in which Viet Nam is a member” (Article 12). This provision applies to all public institutions and the entire legal system. The 2004 Child Law also recognizes that “in cases where international agreements which the Socialist Republic of Viet Nam has signed or acceded to contain different provisions the provisions of such international agreements shall apply” (Article 2), underlining the superiority of international law over domestic legislation. The draft Child Law upholds this provision and makes it more precise, by explicitly referring to the CRC. This would fill a significant gap in the Vietnamese legal framework. If specific monitoring provisions are included, it would ensure the preeminence of CRC provisions in child rights monitoring, in line with international standards. It must be noted, however, that research on access to justice has not found instances where the CRC was mentioned by courts in judicial cases. Power to hear any person and obtain any information and necessary document(s). While the MOLISA can access any information and summon any staff working in an agency under its purview in line with the hierarchical principle, this competency is limited to bodies under its supervision. Likewise, other ministries can only access

information and witnesses working in settings under their supervision and within their sectors. As part of its oversight role, the National Assembly (CEYC) can access Government documents, although it is unclear whether there is any sanction if documents cannot be obtained. It can also question numerous high-level Government officials listed in the Law on Organization of the National Assembly. However, it is similarly unclear which hearings apply to civil servants, at which level and its mandatory nature. Thus far, the justice system would have primary powers in this respect, yet they remain little used. Mandate to monitor public and private bodies. The MOLISA has a mandate to monitor public institutions where children are in care. Similarly, the National Assembly’s oversight mandate includes monitoring the performance of Government agencies. Monitoring of private bodies, however, is not included in any institutions’ monitoring mandates and is solely focused on public agencies. Child labour, for example, is a significant concern involving private businesses and would require specific attention. Similarly, the expansion of online access and the concomitant concern with bullying raised by young people interviewed suggest that monitoring of web-based and phone companies would be an important element of child rights monitoring. Consider individual complaints. No institution has an explicit legal mandate to consider individual complaints directly submitted by children. The 2004 Child Law provides that law enforcement agencies have a responsibility to protect children from rights violations and take necessary steps to prevent and stop violations. However, this does not explicitly include established individual complaint mechanisms, with specific accessibility. The MOLISA’s inspectorate may take up individual cases, for example when published in the media, as a basis for an investigation. However, it does not have

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

specific competencies in this respect nor does it have a dedicated complaint mechanism, accessible in places where children may be (schools, hospitals, care centres, juvenile detention centres). The National Assembly has the competency to receive individual complaints. Under the draft Child Law, the responsibilities of the National Assembly and Provincial People’s Councils include receiving and handling electors’ recommendations. However, this is a major concern as it excludes children and no provision for direct access to children is included. Similarly, filing a complaint to court implies having access to a legal representative and/or legal aid, which in fact is not automatically granted. Support children taking cases to court. Viet Nam’s legal framework provides that children, who do not have legal capacity, can access courts through a representative. Legislation providing legal aid is limited to children in difficult economic circumstances, rather than open to all children. This is a significant gap as it means that children whose interests may be different from that of their caregivers cannot receive support to take a case to court. An independent monitoring mechanism would have a significant role to play in ensuring children’s access to justice. Engage in mediation. The National Assembly is the only body currently with a mandate to receive individual complaints and mediate a solution. While mediation is provided, it is focused on conflicts between citizens and the public administration and does not include, like many ICRMs, mediation between citizens to resolve disagreements. Furthermore, mediation usually involves adults, as complaints are filed by electors. Mediation directly involving children would be an important dimension of an ICRM’s work in Viet Nam to address child rights issues without resorting to the formalism of the court system. Promote respect for children’s views. As per the 2013 Constitution, the 2015 Law on the Fatherland Front and Ordinance on

Grassroots Democracy, the Fatherland Front is in charge of channeling people’s views to decision-makers. However, legislation does not explicitly specify inclusion of children’s views. The 2004 child law primarily envisaged child participation as a social, even recreational activity (Article 32) rather than the exercise of citizenship, with the Ho Chi Minh Communist Youth Union and schools entrusted with the responsibility to implement this provision. Significant progress has been made in the draft Child Law, which provides for the development of a procedure to receive, review and respond to child’s opinions with the MOLISA and corresponding sub-national bodies responsible for implementation. Yet, it lacks details on how these views will be taken into consideration and translated into policies. Similarly, provisions related to People’s Committees’ duty to organize meetings to listen and engage in discussions with children are not associated with an obligation to report and integrate children’s views. It would be the role of an ICRM to systematically collect these views and translate them into policy recommendations. This function is to some extent included in Article 74 of the draft Child Law amendment as duties of the Youth Union and Young Pioneer Union, but a formal mechanism to ensure collaboration is effective and State bodies are held accountable would be critical. Report on children’s situation. Currently, no specific institution is responsible by law to report on the situation of children’s rights in Viet Nam. Under the draft Child Law, the Government would report on a bi-annual basis to the National Assembly. Yet this can be considered insufficient given the fast pace of evolutions, and should take place at least on an annual basis. This would be a significant advance, as the main channel so far has been the reporting process to the CRC Committee. Promote understanding and awareness of children’s rights. Child rights promotion and awareness-raising were included in

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

the 2004 law mainly under the section related to international cooperation. However, no specific State agency was given responsibility for it. The statutes of VAPCR include significant provisions related to promotion of children’s rights through capacity building of member organizations and training of staff. However, it primarily involves civil society associations working for and with children, rather than the State or general public. The new draft Child Law includes provisions related to the State’s responsibility to promote and advocate for children’s rights and related laws and policies, to foster social mobilization and provide training. Yet, these remain general and specific bodies in charge of its implementation are only detailed to a limited extent. The MOLISA has overall responsibility for law implementation as the lead ministry, while the Fatherland Front and VAPCR have particular roles in educating and advocating for law implementation. But, they primarily target civil society rather than the formal system. The role of an ICRM would be to bridge the formal and social system for child rights education. Visit institutional care and facilities for children. Monitoring child care institutions primarily falls under the MOLISA’s responsibility, as part of its inspection duty. The National Assembly also has a mandate to undertake field visits and inspect such facilities. A main concern, however, is the lack of an institution with a legal mandate to monitor institutions from a systemic perspective. Furthermore, provisions related to children’s views in the process are not explicit in current applicable and draft legislation.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Key gaps and insufficiencies:

VII

Lessons from grassroots consultations and real life situations

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

The review of the current child rights monitoring system in Viet Nam conducted by the research team highlighted a number of gaps and insufficiencies that an ICRM will need to address. These gaps are even more salient when considering the real life situations of children, as reported during consultations with children and care-givers at local level. Some experiences shared during local consultations are presented in boxes next to relevant analysis to illustrate these gaps and insufficiencies. − A fragmented system: Several actors have monitoring responsibilities. These include in particular the MOLISA in charge of inspection and compliance, the National Assembly with an oversight function, the Fatherland Front in charge of providing social critiques, the Youth Union and Young Pioneer Union with specific roles in child participation and the Vietnamese Association for Protection of Child Rights which provides feedback on compliance and policy implementation. While these multiple angles for child rights monitoring combined with the formal recognition of some actors can all be seen as significant for child rights monitoring, it is spread among many stakeholders. As a result, there is a high risk of fragmentation, overlaps and lack of clarity on respective roles and responsibilities. Another study highlighted that the multiplicity of actors involved in oversight created uncertainties as to responsibilities, resulting in gaps.59 There is, therefore, a need to coordinate among existing monitoring mechanisms to ensure consistency, provide a link between implementation on the ground and policy-making, and give visibility to systemic issues.

Box 1: Insufficient cross-sector coordination and failed protection of the child In all six rural and urban communities where consultations took place, there were at least three individual cases of failed protection of a child as reported by children themselves or their friends. The case below is synthesized from four cases reported during consultations. At Grade 7 or 8, Y dropped out of secondary school, either because her family could no longer afford loosing her for domestic work, the mother was sick or because schooling no longer interested her. Teachers from the school came to Y’s house to encourage her to return to school. They came several times with the village’s head, sometimes with the commune’s chairman or someone from the Women’s Union. They were often persuasive, but other than that any substantive offers seemed beyond their capacity. In such a case, people sometimes acted with personal support such as providing a small amount of money or in kind to help the child. But, such support is often not sufficient to address a typical case such as Y’s. Y ended up entering into an early marriage, with little help to address her vulnerability. In other cases, girls and boys like Y left home and reportedly engaged in child labour in potentially unsafe situations. Local authorities were unaware as to whether these children risked falling into the worst forms of child labour, as they seemed to not follow-up each case once a child had left their jurisdiction. “Sometimes we got to know that it was a bad situation for the child at the destination, but it was the responsibility of the child protection section of the other province. We informed the peer agency, but we know the protocol to initiate any investigation is very complicated, and everyone has priorities,” said an informant. “In such cases, the child is often with someone the family knew, so if there is any problem they would tell,” said another one. In a few cases, the child remained in the family and started working in the neighbourhood. The local commune authority might offer a gift in cash or in kind (e.g. during New Year or national holidays), but no help was sufficient to bring the child back to school. While schools do not want to leave a child left behind, they also have no resources to provide sufficient support. Local institutions often do not know where to turn for additional help. While the child will remain in the education system records as a case of a school drop-out, she or he actually faces even more risks after leaving school without necessary protection. This situation is an example where the child fell between the cracks of the system, with different agencies unable to act beyond their mandates to protect the best interests of the child.

59 Asia Foundation, Toward more effective Government oversight by the National Assembly of Viet Nam, January 2013.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Box 2: A missing external mediator “I think one of the biggest problems for children in our province is that they do not have enough playgrounds.”

“In fact, we have built many local cultural

institutions and spaces for people to have entertainment and enjoy themselves,” said a leader of the Provincial Department of Culture, Sport and Tourism.

“I am not talking as a head of the sector in the

province. As a grandfather of six children, I could tell that my children could not come and play at those places. Those are no playgrounds for children. They are not open, and not free in many cases.”

This conversation during a provincial consultation between two heads of two sectors demonstrated the need to have a mediator to review the situation from an external/independent point of view. It also showed an insufficient child-centred approach where the views of children and their best interests were not taken into account in decision-making, especially when if the issue is related to several sectors/actors.

− Limited accountability mechanism for actors’ fulfillment of their duties in relation to realization of children’s rights: Information on various actors’ activities for the realization of children’s rights in line with their responsibilities is critically missing. When an oversight mechanism is in place, it may issue recommendations. Yet, a follow-up system is necessary to verify implementation. Furthermore, many monitoring mechanisms are located within structures responsible to manage services. There is, therefore, a need for an external monitoring mechanism that can assess whether State actors have fulfilled assigned roles effectively.

Box 3: Child-centred approach needed “A 13-year-old girl was raped. It got worse as people from all kinds of organizations gathered, jointly paid her a visit and gave her some gifts to show their support. It hurt more as they did not know how to help. The girl should get professional support instead.” (Interview with a staff member from the Children’s Division, DOLISA). If the child is not in the centre of the measure, it may do more harm, instead of offer protection.

− An insufficient child-centred approach: Most existing mechanisms do not have a strong child-centred approach and/or do not ensure high visibility of children’s rights and best interests. In the Government and National Assembly, the structure in charge of children’s rights is located at a low level within the hierarchy, as a sub-category. Furthermore, these structures are often ill equipped to promote holistic approaches and directly interact with children. Where most ministries have inspection systems that do not specifically take a child rights perspective, it is important to have a body that can promote children’s rights across ministries. Similarly, in the National Assembly children’s issues are largely ancillary and working methods are not child sensitive. Inclusion of children who are marginalized and experience significant barriers to exercise their rights is limited and must be reinforced. Furthermore in a rapidly changing context, there is a need for a responsive mechanism that addresses the impacts of rapid economic development on children, such as with privatization of social services and land issues.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Box 4: A facilitator for children’s views and voices is lacking - “If you have problems at school, something that you do not like or hurt you, who would you come to ask for help?

- My teachers. But sometimes, like, when I was bullied by others, my teacher did not do anything.

- What if you or your friends have problems with a

teacher, would you tell other teachers and ask for help?

- No, it won’t work that way. Teachers will cover teachers and they will not listen.”

(Consultation with a group of 6th grade pupils) Most of the time the role of an external body would be to facilitate dialogues between children and the institution they live in or interact with, especially when the issue might not be comfortable for both sides. A mediator with a constructive approach could promote children’s view and participation effectively in similar situations.

Limited processes for children to be heard and their views taken into account: While legislation, currently applicable and in draft form, dedicates attention to child participation and provides for specific actors’ roles in this respect, provisions focus on processes rather than outcomes. The 2004 law focuses on child rights to participate in social activities (e.g. with a recreational perspective), rather than in decisions that affect them. The 2015 draft law adequately specifies that children have the right to express views and provides for various channels to do so at national and local levels. However, it fails to address the other part of Article 12 of the CRC, that views be heard and duly taken into consideration. In other words, there is a need for a mechanism that ensures children’s views are effectively collected and actually inform policy-making. In practice, the children’s forum model at different levels organized by the MOLISA and elected bodies in the last few years was appreciated by stakeholders. These platforms, where child participants represent peers to raise voices on different issues of concerns, were considered a main channel for children to participate in decision-making in their locality. However, the structure is

constrained as it risks becoming an activity for privileged children. The annual setting of the forum gives space for different issues to be raised by children. But, an adequate mechanism is needed for children to raise concerns over acute phenomenon or if decisions affecting children are made in a shorter timeframe, than an annual dialogue mechanism such as the current forum of children. Lack of effective remedies for child rights violations: While the draft Child Law sets out principles to settle complaints, it does not provide a specific mechanism to do so nor does it explicitly state whether this relates to the justiciability of rights through courts only, or whether other remedies are anticipated. Courts often fail to be directly accessible for children, due to a lack of legal capacity and legalistic, formalized and complex judicial process not child sensitive. Similarly, current provisions related to child protection do not foresee the development of effective complaint mechanisms, which would be essential. Therefore, there is a need for a mechanism to ensure all children have access to an effective, child-sensitive remedy when their rights are violated.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Box 5.1: Where the child could turn into when she/he is in need?

Box 5.2: Where the child could turn into when she/he is in need?

(At school, consultation with children at 6th and 7th grades)

(At school, consultation with 8th grade.) Children discussed and played a situation when a child was stopped from going to school because the mother was sick and the family was too poor. Teachers and communes staff came and successfully won the child back to school. As the play came to the end, a girl bursted into tears and ran away from the classroom.

- “Who would you go for help if you are beaten and in big troubles at home? - Neighbours. - Relatives - I’d go to the police Did it often happen with you or your friends here? - No, but sometimes.

“I missed my girl friend. She did not go to school since mid-term. She left for a garment workshop in Ho Chi Minh City last week. We could not do anything, we do not know anyone who could help”, said the girl in tears.

Was it terrible? - Yes it was terrible.” (In the same commune, at the commune authorities, with the police) “ What would you do if a child call you and tell you she/he was beaten terribly? - It never happened here. What if it would happen tomorrow? - We do not come if it is family internal matters. Do you come if adults beating each other? - Yes we have to come immediately to reestablish the order and make sure the fight does not get worse. So, if you would come immediately for adults fighting each other, why would you not come if an adult is beating a child?” Silent for a moment, some women staff giggling. - Ok we will come. We could tell them, next time if you beat a child, don’t beat it too hard.”

On the ground, consultations with staff working at provincial, district and commune levels further evidenced these shortcomings. Practitioners expressed the need for significant support to work in the best interest of the child. In all three provincial consultations, participants raised cross-cutting and emerging issues beyond their sectoral authority and capacity to address. These issues ranged from responding to children’s right to play, rapid urbanization and land acquisitions, child labour, children’s migration across provinces and access to basic public services, migrants’ children having returned from abroad, school violence, child sex abuse, access to justice and children’s participation in making decisions that affect them.

Consultations suggested that a significant challenge might arise from existing boundaries of legal regulations that do not take into account the best interests of children or those of vulnerable groups who fall between the cracks of the prevailing framework not always reactive enough to rapid socio-economic changes. This could discourage public servants from acting beyond their daily and authorized functions to properly defend children. For instance as outlined earlier, staff from the provincial Department of Labour, Invalids and Social Affairs’ (DOLISA) Division of Children Protection appeared to lack capacity and authority to follow-up with a 13-year-old girl who dropped out from school in a rural area and went to work in a garment workshop 300 kilometres from home. Any support of her would have had to cut across administrative and sectoral borders, difficult with the current framework.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

VIII

Understanding of ICRM by national stakeholders

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

This section describes observations and concerns shared by stakeholders through group discussions and in-depth interviews on the concept of ICRM during consultations at national level and local levels (provincial to commune levels, including children and parents). These consultations were undertaken in the form of interactive dialogues on two main questions: i) whether any gap or possibility to improve the effectiveness of Government work with children existed, especially in terms of monitoring, technical support and representation of children in decision-making and ii) how would a ICRM fit into the existing child rights governance system in Viet Nam in the context of on-going structural reforms? This section starts with a summary of discussions on challenges and opportunities related to an ICRM, followed by specific issues addressed during consultations with stakeholders. In each section, stakeholders’ observations and positions are complemented with analysis by this report’s consultants. The annex also contains a list of frequently asked questions by stakeholders during consultations about an ICRM in the context of Viet Nam. Independent monitoring and ICRM are new concepts in Viet Nam, which prompted stakeholders to respond with a mix of curiosity, yet non commitment. Outside this study, the debate on an independent monitoring mechanism has been restricted to a small community working in human rights, child rights and anti-corruption, mostly mid-level officials and academia. Specific discussions on an ICRM were initiated in the last decade by international actors, such as UNICEF and international child rights NGOs.60 National 60 International NGOs touched on ICRM during their capacity development and advocacy effort on child rights, but not systematically. The establishment of a monitoring mechanism in Viet Nam was raised as a recommendation by civil society in the submission to CRC in 2009 (published in 2011 for the review of Viet Nam, reporting cycle No. III and IV, reviewed in 2012). The recommendation was mildly phrased as a “pilot independent inspectorate mechanism” (Joint submission by CeSVI (humanitarian organization for cooperation and development), Child Fund Enfants & Developpement in Viet Nam, Italian Association for Aid to Children (CIAI), Plan in Viet Nam, Saigon Children’s Charity, Save the Children in Viet Nam, Terre des hommes Foundation (Lausanne, Switzerland) Viet Nam Association for Protection of Child Rights, VUFO-NGO Resource Centre, World Vision). The report is available at http://tbinternet. ohchr.org/Treaties/CRC/Shared%20Documents/VNM/INT_ CRC_NGO_VNM_60_10310_E.pdf

stakeholders working on children’s issues were also engaged, with limited connections to the broader debate around independent monitoring or national human rights institutions. However, it appears high-level decision-makers at State level were not yet adequately informed about the issue, which by nature as a new phenomenon requires significant political commitment. Order No.20/CT on November 1 2012 of the Central Political Bureau of the Party on Enhancing the Leadership of the Party on Children Care, Education and Protection, is the directive document for the amendment of the Law on Child Protection, Care and Education of 2004. It recognizes the gap in monitoring the implementation of child rights and includes measures such as No. 4 (enhancing the implementation of CRC) and No.5 (enhancing monitoring work). These elements should be further specified in the new law, policies using the CRC framework and child rights monitoring institutions. While discussions on an ICRM were initiated with different agencies a decade ago, little common understanding has been established. ICRM is known at national level from the model of Scandinavian countries, which has positive and negative implications. However ICRM practices, such as what situations would the institution engage in, how would the institution interact with legislative, executive and judiciary bodies - in other words why an ICRM is needed and what would it do - were among the most common questions raised by national informants across levels and sectors. Addressing these questions would help advance the discussion on an effective ICRM mechanism in Viet Nam. Uncertainties around the institutional question of an independent body would best be addressed by referring to the practical operations of the body. In short, while there were many theoretical, ideological or political concerns at national level, the debate was more lively and engaging with those who work with children – including staff at local and provincial levels and media professionals. Civil servants at implementation level (up to provincial agencies) were often less

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

engaged with and followed up on systemic issues, such as how a new agency would fit into the existing institutional setting with a top-down approach. They had a more practical perspective on which missing ingredients in the system made work more challenging, such as what kind of mechanism is available to support a child if the prevailing legal framework was not conducive to s/he’s best interests and what would be an appropriate response if the case went beyond the jurisdiction and capacity of their mandate. Such questions could encourage stakeholders to realize an ICRM could be a “friend” to support their work. The view of civil society, including VAPCR, on an ICRM was more supportive. VAPRC has a strong desire to earn more recognition in child rights monitoring and is well positioned in the draft amendment of the Child Law in terms of its unique contribution to realization of child rights. However, whether the VAPCR could be recognized as an ICRM would depend on two strategic decisions: i) how its organizational structure could become a State body or detached from the MOLISA to become an NGO and ii) how its organizational development could address capacity gaps to monitor child rights. The chief challenge for the VAPCR is funding, in terms of should it continue to receive its traditional source of funding from the Government or compete with other CSOs. Of note, other CSOs were upbeat about having an ICRM in place, yet were distant observers of the process as the benefits of an ICRM have yet to be fully comprehended. Overall, the challenges and complexity of the process to set up an ICRM seemed to curb NGOs’ enthusiasm to engage in advocacy for setting up an effective ICRM mechanism in a stronger manner. In fact, except for initiatives from international actors such as UNICEF, INGOs or embassies, no strong driving force to advocate for an ICRM or NHRI was found among national actors. Informants from the National Assembly and MOLISA supported the general concept of

an ICRM, but treated the Paris Principles and the question of independence cautiously and displayed limited knowledge and understanding on how these institutions work in practice. In addition to other concerns related to the political setting, their expectations and potential engagement with an ICRM were low. The cost of inaction in not having an national monitoring mechanism was raised by some observers (mostly researchers), however the debate on establishment of an ICRM would benefit from more informed discussions on this issue. Recognition of an ICRM in international dialogue (such as with CRC and other UN mechanisms) was not identified as a significant factor for child rights progress in Viet Nam, which makes the absence of an ICRM less significant for national actors. The capacity of an ICRM to handle complaints or communications from children was not explicitly mentioned by stakeholders during consultations. In fact, such a remedy mechanism within an elected body or other is unfamiliar in Viet Nam, for example courts rarely preside over alleged human rights violations against adults. Indeed, children and adults in surveyed communities did not know where to seek help if a child was in a vulnerable position or being threatened. While such a child could be assisted and looked after by local authorities, if assistance is inadequate there is no alternative mechanism for s/he or a parent to claim their rights. Put simply, participants thought a publicly visible contact point, a hotline or a national institution that children and adults could seek help when in need of protection or support was the most convenient procedure for children or their representatives. This is where an explanation of how an ICRM can be accessed by children and people on the ground would fuel public debate on having such a mechanism.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Concerns which challenge the establishment of an ICRM in Viet Nam Narrowed interpretation of an ICRM with the Scandinavian model seen as an idealistic one for replication in Viet Nam At the national level, the general concept of an ICRM was familiar to most informants through interactions with the Scandinavian Children’s Ombudsman model. In the past decade with support from the UN and other international donors, national actors from the National Assembly, MOLISA, Government agencies and NGOs engaged in several exchanges with onsite visits to the Danish, Norwegian and Swedish Ombudsman, particularly the Ombudsman for Children. Exposure to the Scandinavian Ombudsman for Children model, which could have deflected attention away from settings in other countries, resulted in mixed assessments from participants on the feasibility of an ICRM in Viet Nam. While an ICRM was generally assessed as an ideal model, it was considered neither practical nor suitable to the economic, social and political context of Viet Nam compared to North European countries. Thus the Scandinavian model was generally rated as not applicable to Viet Nam in its current context. While several informants viewed it as an ideal institution, an official involved in the drafting of the revised Child Law said: “In the next 10 years we might think about having an Ombudsman, but not now”. In this context, increasing national stakeholders’ exposure to other ICRM models, especially those from developing countries with similar socio-economic development levels, will better inform any decision on a possible mechanism for Viet Nam. Up to provincial level the concept of an ICRM is unfamiliar, except for a few specialists at DOLISA or NGO workers. As a result, there was a general hesitancy on whether a new agency would strengthen the existing system. However, staff at this level were actively engaged in talking about challenges in their work which often revealed gaps in the existing system

which an ICRM could bridge. Staff at this level were also eager to learn about ICRM practice examples elsewhere and how they could support implementing agencies in Viet Nam.

Unresolved question on mechanism independence The level of independence in a truly “Independent Child Rights Monitoring” was met by uncertainty from stakeholders at national and sometimes provincial levels. “Independent” is often interpreted as “independent from the State” and in a few cases even understood as counteractive to the State. Moreover, the two concepts of “Government” and “State” are largely indistinguishable to the general public of Viet Nam. Therefore, the criteria for independence from the legislative, executive and judiciary should be well explained in the principle that an ICRM is a State institution. Presenting ICRM as a State mechanism with impartiality and in the best interests of children would address uncertainty and ensure it is not viewed as being opposed to the Government or any other State power. The most commonly raised question in relation to discussions with stakeholders on the level of independence of an ICRM was, which State power would an ICRM belong to. This question framed the answer into options of an ICRM belonging to either the National Assembly or Government. Sometimes the Fatherland Front came up in reference to the Constitution of 2013.61 In general, interviewees were in favour of the National Assembly, while even the Supreme Procuracy was pointed to as an option. The next chapter of this report will discuss these options in more detail, without making a definitive verdict. However, this issue should be framed as how to hold an ICRM accountable and evaluate an institution’s performance and effectiveness – the ultimate 61 Article 9, paragraph 1 of the Constitution 2013 recognized the Fatherland Front’s mandate for general monitoring. See the legal analysis in Part III.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

purpose of a supervisory body for an ICRM. Possible answers could be through applicable requirements for transparency, reporting protocols to the Government and elected bodies and the new institution to be subjected to independent evaluation and auditing.

Establishing a new agency in the context of ongoing public administrative reforms Another challenge for the introduction of an ICRM in Viet Nam is the general interpretation of ongoing public administration reforms as a process of downsizing administrative structures and the State budget. Several informants at national level and even provincial and district levels perceived reforms as a simple downsizing process, in which establishing any new institution would be a move against such Government reforms, as reflected by the downsizing being the main message from the National Programme on Public Administrative Reform. However, the reform agenda is also focused on strengthening the effectiveness and delivery of public services, including enhanced monitoring by people or social accountability mechanisms.62 On the other hand, this master programme covers Government agencies, which should not directly impact on other State arenas such as elected bodies or a body meant to be independent from the Government structure. In addition, ongoing structural reforms might benefit from a strengthened check and balance system where monitoring mechanisms are introduced or enhanced. Discussions on establishing an ICRM would also gain from broadening the context of institutional and structural reforms and focusing on increased system effectiveness and legitimacy rather than being grounded in the public administrative reform agenda, a narrower path led by the Government.

raised as numerous institutions already have mandates encompassing general monitoring and child-related issues. Could any existing gap in child rights monitoring be addressed by improving existing monitoring mandates of relevant agencies? This question is addressed in the earlier section on legal and institutional analysis, where existing gaps in child rights monitoring are identified. In addition to this analysis, it could be beneficial to approach this question from the perspective of an institution’s practical work and assess whether the existing system effectively responds to the situation of children and the need for an institution. When asked “what challenges in work with/for children do you often encounter, can you address the issue properly or is assistance available in the best interests of the child”, most professionals give a positive answer. When responding to this question, however, several informants pointed out that existing mechanisms mostly operated on a part-time basis and had limited technical capacity for oversight on children’s rights issues or to provide solutions.

Should the focus on child rights be more on implementation than monitoring? It is generally accepted that greater efforts must be made to improve the State’s implementation of obligations to fulfill child rights. Such obligations, however, as required by the CRC include providing effective monitoring mechanisms on the implementation of child rights.63 While monitoring is important to ensure effective implementation of existing policies, in a rapidly changing environment like Viet Nam it is critical to have a mechanism to identify emerging issues and propose responsive measures.

The need for an additional agency was also 62 Resolution No.30c/NQ-CP on 08/11/2011 on the Master Programme on Public Administrative Reform by the Government in 2011-2020, and Resolution No.76/NQ-CP on 13/6/2013 on amendments of the Resolution No.30c/NQ-CP dated 08/11/2011.

63 See CRC’s General Comment No.02 CRC/GC/2002/2.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Opportunities to support an ICRM Emerging discussions on NHRI The link between ICRM and broader NHRIs enhanced support from those working in the human rights community to establish an ICRM in the country. Viet Nam officially adopted five recommendations on the establishment of an independent NHRI at the Universal Periodic Review (UPR) at the Human Rights Council in 2014.64 The debate on an ICRM and NHRI is disconnected, but in principle would mutually benefit from each other and share risks. In well-handled processes, stakeholders should be sensitized with the Paris Principles and practical aspects of an NHRI structure, processes, operation and practices to ultimately reinforce respective processes, especially in efforts to inform senior leadership. The Government’s Standing Office of the Steering Committee for Human Rights (known as the Human Rights Office) is preparing a feasibility study on an NHRI in Viet Nam. However, the process has appeared more closed than offering a debate on ICRM, which is commonly perceived as less political and “sensitive” than human rights in general. Senior staff from the Human Rights Office felt an ICRM was not strongly connected to the establishment of an NHRI, which seemed to be on a different agenda. On the other hand, the child rights community seemed unaware of the new NHRI development nor had a good understanding of an NHRI and the relevance of the Paris Principles for both discussions. Important benchmarks for the NHRI discussion include: 2016: Viet Nam will conclude its membership at the UN Human Rights Council 2014-2016 and might consider running for a second term 2016-2018. If so, it could utilize several informal human rights dialogues to raise the topics of NHRI and ICRM during 2016 before council elections.

2018: Viet Nam will undergo a third UPR where progress on the implementation of previous recommendations will be assessed at national level (in 2017) and presented at the UN Human Rights Council, including recommendations on establishment of an NHRI. 2015-2018: Continued engagement of Viet Nam with UN Human Rights mechanism (Reporting at ICCPR tentatively in 2016 and engagement with UN Charter-based bodies such as special procedures). 2017: The next cycle of reporting to the CRC is due in 2017, when the Government should specifically respond to the recommendation on ICRM by CRC in 2012. The recommendation was followed-up by Decision 535/QD-Ttg in 2014, which gave a timeframe for consideration of the ICRM by 2020 and main responsibilities to Ministry of Foreign Affairs and other ministries. The national process should start in 2016 for submission of a report in 2017.

Fulfilling the need for more informed understanding on ICRM practices at different levels Stakeholders at all levels displayed a significant information gap on the practical work an ICRM would provide. At provincial level, participants explicitly requested more information on ICRM practices, especially from countries with similar socio-economic development levels to Viet Nam. Stakeholders at national level focused on questions of institutional settings and most saw these questions as challenges to establish an ICRM in Viet Nam. On the other hand, the exchange on practical examples of work done by different ICRMs sparked the attention of informants and most engaged in conversations in positive manner. A senior staff from the Human Rights Office noted: “If one wanted to advocate for an ICRM, s/he should start from proving how useful it could practically be”.

64 UPR Recommendations from No.143.35 to 143.39 (A/HRC/26/6 and A/HRC/26/6/Add.1).

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

In this context, continuing dialogue on ICRM with all relevant stakeholders is key to maintaining and enhancing comprehension and interest in this topic. UNICEF, together with other players such as national child rights advocates and international partners, should facilitate more learning opportunities, especially exchanges at high level with senior experts, providing Vietnamese language65 communications products, exchange visits (to Viet Nam by other ICRMs and to other countries by key stakeholders) and media campaigns to fill practical information gaps of stakeholders and decision-makers.

Emerging needs for an independent monitoring mechanism from the implementation of the draft Children’s Law The concern over choosing priorities for delivery or monitoring is likely to be better addressed with the implementation of the prospective Children’s Law. The MOLISA has recognized the demand to continuously improve its internal capacity to better address children’s protection and care. Indeed, the system under MOLISA for children-related work will be significantly enhanced with the amendment of the Law on Child Protection, Care and Education. In addition to expanding its capacity to deliver interventions, the MOLISA will need to strengthen its own monitoring mechanism to be more child-centred. In fact, work to ensure children’s rights is beyond MOLISA’s mandates on social protection and welfare. When it comes to education, health care, administration of justice or other sectors, the ministry does not have adequate power to mobilize other agencies to work in children’s best interests and from a rights-based approach. For instance, the age indicators for data collection under the Ministry of Health are not compatible with the current definition of legal age of a child or access to criminal and 65 Such as a translation of the UNICEF’s Office of Research “Championing Children’s Rights: A Global study of independent human rights institution for children” in Viet Nam should be available for academia, child rights advocates and other stakeholders. Or a briefing of good practices by ICRMs should be provided and mainstreamed in different child rights programmes.

administrative procedures is too challenging for child sexual abuse victims to seek justice. Child protection staff in the MOLISA/DOLISA system have realized these gaps, but it is beyond their jurisdiction and authorized power to handle such cases. An objective and powerful voice of support by a national independent monitoring mechanism would help the system to effectively defend children, while further identification of systematic improvements to address similar cases could be made at national level. The most important difference with the existing mechanisms is that the ICRM would be able to respond timely and effectively to child rights’ violations and oversee the daily protection and promotion of child rights – a specialized capacity missing from any existing national mechanism. These outlined scenarios are two of several examples where staff working at community level presented challenges beyond their capacity that an ICRM could address. Once the service delivery and child protection system is further strengthened following the implementation of the amended Law on Child Protection, Care and Education, more practical issues will be debated to objectively monitor and deliver solutions. In this context, the practical need for an ICRM will be better acknowledged by all stakeholders if the debate is well informed and facilitated. In advocating for an ICRM, discussions should be grounded with practical examples and gaps to be filled, or support different agencies standing to benefit. This is the most powerful advocacy approach for a new initiative in institutional reforms - changing from the bottom up to respond to practical needs on the ground.

Media support During consultations, media professionals were among the group who showed most interest and support towards an ICRM. A possible reason for this is that people who witness or suffer from child rights violations tend to seek help from the media instead of Government authorities to bring cases to light. Journalists who worked with children and on children issues, in their relatively independent position

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

from the existing child rights governance infrastructure, highlighted the need for a mechanism more responsive to a wide range of situations faced by children in Viet Nam. The journalists were especially concerned about cases that required action beyond the existing legal framework, but appreciated having a specialized child rights agency to seek professional opinions on children’s issues.

to children in school to organize activities, but does not support to children at risk. Sometimes, unprofessional support from mass organizations puts a child at further risk of exposure to the public and discrimination, such a child sex abuse victims receiving visits from a local Women’s Union which risk exposing children to public attention, yet failing to provide professional support for rehabilitation.

It should be noted that the concept of an ICRM/ NHRI or independent monitoring mechanism was less known among journalists. In response, these concepts should be promoted in work with media professionals through child rights communication initiatives, such as highlighting existing gaps in child rights implementation and monitoring systems, by introducing good practices from other countries or encouraging public debate on the role of independent monitoring mechanisms in a democratic society. With media support, advocacy for a ICRM could potentially engage wider public support (essential for an ICRM’s establishment and operations), to ultimately influence high-level decision-making.

To respond to this issue, the hotline run by MOLISA is active with approximately 300,000 calls annually from across the country.66 The demand for service coverage is will likely increase if the hotline becomes more visible to people and children in need. On the other hand, the hotline when dealing with specific cases, cannot follow-up systemic issues. The latter aspect could be taken care of by a partnership with the monitoring mechanism, which in return would provide the MOLISA and stakeholders with an objective analysis and recommendations for improvement.

A mechanism to effectively represent children in decision-making and provide supportive remedies to meet children’s needs is missing In the framework of this feasibility analysis, consultations reached out to 130 children in different situations in rural and urban areas, including those in school and who had dropped out. In all cases, children did not know where to seek professional support if they were in danger, beaten, threatened, unable to continue schooling, married as children, wanted to return to school, access nationality and a birth certificate or other vulnerable situations they or others had experienced. Such children often sought help from parents (who were often unable to help, especially those living in poverty or from disadvantaged groups), teachers, relatives and friends rather than a public body as such institutions were unknown to them. The Youth Pioneer system mostly reaches out

Budget and size of the organization Participants in consultations also raised questions and commented on the possible size and budget implications of the institution. These practical questions will need further investigation to provide a specific response to strengthen the case for a ICRM. In general, an ICRM is a small body in terms of size and operations to cover a broad-based mandate. Annex 4 presents an example for five small organizations or bodies at national level in the estimated State budget of 2010. These budgets are for organizations with national level staffing of 20-100 people from USD150,000 to USD1,500,000 per annum.

66 Interview with MOLISA.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Options for an independent child rights monitoring mechanism

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Overall approach The recommended approach to establishing an ICRM in Viet Nam recognizes the significant advances made in protecting child rights and the further need for enhancement. It takes into consideration comments systematically made by informants during interviews and consultations, especially the importance of building on existing processes and mechanisms to ensure the relevance of a child rights monitoring system to the Vietnamese context. It is, therefore, suggested that a two-pronged approach is taken with two main streams building on the recognition of overarching principles. The process would involve two groups of action: a) improving the existing structure and ii) improving the approach towards child rights monitoring. They can be seen as options, but primarily constitute interrelated facets to be approached together. For this reason, they have been called “streams” rather than options, and can be developed in parallel. With both paths presented in greater detail further in this report, it is essential to focus on enhancing the existing system with public advocacy, with engaging civil society actors and media as well as encouraging civic actions for child rights monitoring, protection and promotion to be vital steps. Overarching principles – Explicitly recognizing in legislation the importance of monitoring law implementation The draft Child Law presents a significant opportunity to advance child rights monitoring. The draft makes significant advances from the 2004 legislation as it takes a child rights approach and contains detailed provisions towards concrete implementation. Overarching principles could include the importance of monitoring as a necessary link between the text of the law and its enforcement. Even though details on the structure and competencies of an independent child rights monitoring mechanism may still be in discussion, the

principles that should guide this body when created and the work of all existing institutions with a monitoring mandate could feature in the law. A proposed provision to be incorporated into child law amendments could include: “Monitoring of the implementation of children’s rights shall be performed by an external mechanism [which mandate is to be defined by law/regulation], taking into account children’s views and making recommendations for the realization of children’s rights by relevant agencies, organizations and individuals in line with their mandate.” Another provision on definition of child rights monitoring could be included in the article relating to Glossaries: “Child rights monitoring includes conducting regular observations of the situation of children over time, gathering and publishing data on children’s rights, which involves an in-depth analysis of children’s daily experiences informed by their own views, as well as of the factors that have led to a given situation – whether individual or collective, and considering individual situations.” For the article relating to responsibility of the State in implementation of children rights could include a provision on child rights monitoring: “Monitoring the implementation of children rights and situation of children. Establish child rights monitoring mechanisms which are suitable to the condition of Viet Nam, and in line with relevant international standards.” Incorporation of these suggestions into the child law amendment would provide a basis for ongoing work, while addressing challenges raised by informants in relation to the weight and nature of such a mechanism.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Stream 1 - Ongoing support and reinforcement of existing child rights monitoring mechanisms and remedies Improving the child rights monitoring function of each relevant stakeholder A permanent and full time monitoring function must be established at national and provincial levels of relevant bodies with a child rights mandate. Such a monitoring unit could be small-sized (three to five civil servants), but must include high professional qualifications and competencies to work on a child-centred approach. First priority could be given to the process among elected bodies at national and provincial levels (National Assembly and Provincial People’s Councils), given their important oversight mandate. At the National Assembly, the process would involve: i) increase human resources and technical capacity of the Division of Children and Youth of the Office of the National Assembly, ii) have a key member of the CEYC specialize in child rights and iii) appoint an independent child rights expert to the CEYC or even to the National Assembly Standing Committee. The second priority could by the Fatherland Front. The newly amended Law on Fatherland Front gave it a greater monitoring mandate and provided clear methods and power to conduct monitoring and social critiques. A next step could be establishment of a specialized advisory council or structure on child rights monitoring. The MOLISA could consider having its own enhanced monitoring mechanism in addition to the strengthened structure to deliver services and social protection for children proposed under the amendment of the Law on Child Protection, Care and Education. As the ministry is working on improving its inspection system, the capacity for child rights inspection – including inspecting other sectors beyond the MOLISA system – should be strengthened. Some improvement areas to be considered

include: (1) enhanced cross-sectoral monitoring on child rights implementation as a whole (2) enhanced function and scope of the MOLISA’s inspectorate department. Emerging civil society actors (including NGOs, researchers, media professionals and social media) should be invited to engage in this process. It is important to build the child rights monitoring capacity of civil society and work with Government agencies on children issues (including a future ICRM) and enhance their ability to be critical potential actors. Improving the child-centred approach The approach of all three existing mechanisms with a mandate relevant to child rights monitoring (elected bodies, Government and Fatherland Front systems as well as emerging civil society actors) must shift from monitoring compliance to a child-centred approach focused on outcomes. Monitoring bodies under each system should have strengthened capacity in taking this approach, especially to understand the situation of children on the ground as the centre their operations. In each mechanism, facilitating children’s participation and ongoing interaction with children is key. The children’s forum organized annually is a good example of this approach. However, there is a risk of tokenistic child participation rather than meaningful participation in public life. Instead, children should be involved in any process that impacts on them. Monitoring bodies under each mechanism could appoint their own focal point for child participation to create an accessible point for children to interact on their terms. This focal point could also advise other agencies within their respective system on how to improve children’s participation in specific sectors and ensure children’s views are effectively collected and actually inform policy-making. This should apply to State agencies and CSOs.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Opportunities: Implement the new Children’s Law with strengthened mandates for relevant stakeholders Recognize the need for child-centred monitoring. Challenges: Gaps between different agencies have not been fully identified A coordinating mechanism is not in place Civil society’s role has not been fully recognized. Improving the availability, access and effectiveness of remedies for child rights violations The need for a mechanism to ensure all children have access to an effective, child-sensitive remedy when their rights are violated was articulated during consultations with stakeholders, especially by children who did not know where to turn except for family and friends. Such a remedy must be simple and accessible to children, especially those in difficult situations (e.g. children living in remote areas, who do not speak Vietnamese, with disabilities or living in poverty). The introduction of a juvenile justice system in Viet Nam is a significant improvement, yet its effectiveness will require significant investment. This point was often raised when the issue of a remedy was raised during consultations. The juvenile justice system, however, is meant to deal with children involved in criminal cases in a way that respects their rights, but it does not constitute a remedy that children could seek when they feel their rights have been violated. As one solution, the MOLISA-managed hotline for children appears to be an effective resource available for children. The operation of the hotline for children has been in place for 11 years and fielded hundreds of thousands of calls per year. The hotline, however, is less known

at community level and its visibility must be increased through mass public communication campaigns. As its profile increases, the hotline is likely to expand its capacity and require more resources. The hotline is not only an entry point to address children’s concerns, it is also a valuable resource which allows for a better understanding of children’s realities in their daily lives. The hotline could also expand its operations by not only addressing individual cases, but also developing a case management, data collection and analysis system to identify trends or patterns in problems that prompt children to request assistance. The results would provide feedback to not only improve the hotline’s operations, but also address issues on a larger scale. Addition legal aid for children should be made available and accessible at provincial level through building relevant competencies for provincial legal aid centres and partnerships with CSOs working on legal aid or children issues. Opportunities: New Children’s Law with an improved framework for legal aid and children’s access to justice New Family and Juvenile Court New Juvenile Criminal Court and procedures Progress made in improving children’s access to remedies. Challenges: Practical measures to improve children’s access to justice are unclear for actors with relevant responsibilities Unclear division of roles among stakeholders in the (draft) Children’s Law

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Misunderstandings about the new mechanism (e.g. Family and Juvenile Court could cover all justice problems children face, including complaints from children) The existing framework provided by the Law on Legal Aid is insufficient to ensure children’s access to the newly reformed justice system. Institutions in place have a critical role to play in child rights monitoring, including working alongside and in support of an independent child rights monitoring mechanism. The functions they fulfill are essential and necessary. It is, thus, important to keep reinforcing them and ensure their effectiveness. Stream 2 - Establish an effective external mechanism to ensure a coherent child rights monitoring system in line with international standards The second stream foresees the establishment of an external mechanism. Its creation would take into account the existing framework and ensure it complements current monitoring mechanisms. In relation to existing mechanisms, the function of the external child rights monitoring mechanism would be as follows: Monitor the implementation of laws, policies and service delivery to promote the realization of children’s rights and follow up the implementation of recommendations. This overarching function refers to the holistic and multi-disciplinary approach needed. It also relates to the need for a mechanism that not only issues recommendations, but also follows up on if and how they are implemented. Build on and coordinate findings from various child rights monitoring processes. The outputs of these various monitoring processes must be used jointly to ensure comprehensive and systemic monitoring of the realization of children’s rights. Put differently, they must be taken together to inform each other and be consolidated to lead to concrete recommendations that

can inform policies and practice. Children’s recommendations echoed by the Youth Union must be combined with inspection reports and National Assembly oversight reports to enable the formulation of solid, evidence-based, recommendations for improvement. This can only be done by a mechanism that is external to existing ones and has the ability to gather different parts of the puzzle and establish a full picture of particular situations. Currently, different agencies have different approaches to monitoring children’s issues, in addition to the broad range of topics covered by respective mandates. These agencies have a significant need for technical support to monitor methodology and analysis, which is rights-based. Take a strong child rights approach and build on solid child participation mechanisms and practices. Currently the holistic, child centred approach in most monitoring processes is insufficient. Child participation is almost non-existent or primarily consists of awareness raising and participation in social activities rather than to express views to inform decisions at individual or policy level. Children marginalized and excluded, such as those from ethnic minorities and/or out of school, have even less opportunities to be heard. The role of an ICRM is to give a voice to all children and enable decisions to be directly informed by their daily experiences and views on how to address issues they are confronted with. Ensure effective remedies are available to all children. The role of an external monitoring mechanism is to ensure children have someone for help if they have a problem and/or their rights are not respected. This does not mean the mechanism itself needs to fulfill this function, but it should monitor whether effective remedies are in place and accessible for all children. The role of an external child rights monitoring mechanism is to act as a last resort if problems have not been appropriately solved. A complaint mechanism is also a key tool to understand difficulties children face in their daily lives

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

and anticipate how they can be addressed at policy level. Link children’s experiences on the ground to policy-making. The great strength of an external child rights monitoring mechanism is to use information collected from various sources to inform policy-making based on children’s experiences on the ground. Whether it is through data gathered from complaints registered, by directly consulting children or by learning about their views collected by others, such mechanisms have the ability to understand what is happening to children in society, not only in the capital Ha Noi or among privileged children, but also among the poorest and most marginalized, including those with disabilities and from ethnic minorities. Give visibility to children and their rights in the political system. One major concern in relation to existing child rights monitoring mechanisms relates to the link between recommendations and follow ups from responsible actors. Since children do not vote and have limited political influence, it is essential that one actor defend their interests and perspectives in the political system. This is broader than merely echoing their views. It also consists in ensuring that these are taken into consideration and translated into change. An autonomous ICRM Although numerous independent child rights monitoring mechanism critics have focused on the fact that no such mechanism currently exists in Viet Nam and is foreign to the national context, an independent body has actually been in place for a decade and could serve as a model for an ICRM. This body, the State Auditor, could be replicated to inspire an ICRM’s development. The Law on the State Auditor No 81/2015 gathers most considerations of relevance for a child rights monitoring mechanism.67 It combines the independence principle with 67 New Law adopted on 24 June 2015.

independence guarantees as provided by Article 5 of the law and includes far-reaching powers to access documentation. It provides for an influential status, with direct access to the National Assembly and its committees, in particular the Standing Committee, because the office directly reports to the National Assembly. However, it does have some limitations. For example, its annual workplan must be presented to the National Assembly and Government prior to implementation. Investigations cannot “cause trouble, difficulty and annoyance to the audited entities”, without an exact definition of such disturbances. Recommendations contained in audit reports are only binding on respective agencies to the extent they accept them. If complemented with adequate child-sensitive provisions, it would nevertheless provide an adequate model for an independent child rights monitoring body and one that is more likely to be politically acceptable. This would be seen as a recommended priority. Bearing in mind the difficult political feasibility of this option it could be adapted as needed, in line with the Law on the State Auditor, as an example of an institution already operating and addressing concerns about the ground-breaking nature of such a mechanism in Viet Nam. Overarching principles for an ICRM mandate The ICRM should have a mandate established by law, which refers to its independence and obligations to abide by legislation. The law should also mention integrity, objectivity, and professionalism as key principles in dealing with child rights issues. The law should include a number of background checks on staff to ensure they can safely work in contact with children. The ICRM’s mandate must be grounded in national and international laws of relevance to children’s rights, with specific reference to the CRC. The mandate should also include an overarching provision on child-sensitive mechanisms, including an obligation to promote and set up child participation instruments within the ICRM and direct accessibility to children, including the most

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

marginalized. The mandate should specifically refer to non-discrimination and the need to pay specific attention to the most vulnerable children in society. Role of an ICRM The role of the ICRM should reflect the need to keep the mechanism small in size and build on existing monitoring mechanisms and national institutions. Coordinate existing monitoring mechanisms by (i) undertaking a systemic review and clarifying respective responsibilities on a regular basis and (ii) use reports and findings produced by other monitoring mechanisms to draw a complete picture of children’s rights in a specific area and/or issue. Submit an annual report on the situation of child rights in Viet Nam to the National Assembly and Government. The report should be made public and contain specific recommendations to relevant actors across sectors and categories. Furthermore, it should be discussed by the National Assembly’s CEYC at a special session, for example on child rights day or month. Every year, the ICRM should report on implementation of recommendations made on the previous year. Handle individual complaints, as a last resort. Individual complaints could represent a significant workload for an ICRM and soak-up significant soak-up significant resources. The ICRM’s role should be limited to handling cases of particular significance (due to their seriousness or new issues they raise) and facilitate other remedy mechanisms for child rights violations. The ICRM must gather and promote children’s views, explicitly including a child participation component. This involves multiple dimensions: (i) developing mechanisms to have direct interactions with children, through field visits, creation of a children’s advisory group and consultations with children, (ii) using data on children’s

views collected by other organizations such as the Fatherland Front/Youth Union and VAPCR and (iii) promoting child-sensitive mechanisms to enable children to participate in other settings such as the justice system, school and media. Undertake investigations and highlight systemic issues. The ICRM should have a role in conducting inquiries when problematic case(s) or issue(s) arise and examine systemic issues (legislation, coordination among actors, fulfillment of duties by stakeholders) and make recommendations for improvements. Work with legal aid offices to ensure children’s access to legal assistance that is child-sensitive and adapted to their needs. While many ICRMs in other countries have the competency to file a case on behalf of a child, it would be preferable to rely on existing structures in Viet Nam due to limited resources, yet support their capacity to address children’s cases. Develop partnerships with others (e.g. media for sensitization, universities for research, bar association for legal support) to ensure promotion of children’s rights while relying on existing resources. Competencies By following the State Auditor model of Viet Nam and based on international standards, the ICRM should have the competency to: Undertake investigations into violations of children’s rights, individual or collective, without prior authorization Submit an opinion or recommendation on law or policy (in place or proposed) Issue public reports, including an annual report on the situation of children’s rights in Viet Nam Undertake awareness-raising activities for the promotion of children’s rights, including media outreach

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Organize public consultations and hearings on children’s rights implementation Have memoranda of understanding with partners to facilitate the fulfillment of duties Request information from relevant State agencies and bodies to file a case before an administrative tribunal if they fail to cooperate Make unannounced visits to juvenile detention centres, schools, child protection centres, private companies premises and any other place where a child may spend time and/or be at risk Issue an independent report (separate from the State) to the UN Committee on the Rights of the Child, participate in pre-sessional discussions and follow-up actions as well as contribute to regional commitments and networks Directly consult with children Inform the Procuracy if a case involving a child requires judicial attention.

Challenges and opportunities Challenges: Lack of political clout and marginalization of the ICRM within institutional landscape Insufficient powers resulting an inability to access information/places and effectively monitor children’s rights independently Lack of independence in practice Appointment of an inadequate head of office, weakening the mechanism Insufficient resources Lack of clarity in its mandate and misunderstandings from other bodies Resistance in the context of administrative downsizing. Opportunities: Enhanced effectiveness of existing mechanisms Space within the National Assembly for oversight

Structure and location The ICRM’s structure should ideally be a small office with approximately a dozen staff, including professional and administrative staff. It should include a head and deputy head of office, and four departments (law and policy review, individual complaints, investigations and research). As in other countries, it could utilize consultants or seconded researchers to work in the ICRM on a temporary basis. The ICRM could be administratively placed under the National Assembly, but with an autonomous status and a separate range of competencies. Other alternatives, such as placing it under the executive branch would be less favorable as it risked not being sufficiently outside the system. While it should not be under the MOLISA, it could be placed at a high Government level under the Presidency or Prime Minister, such as the Human Rights Office, to enjoy more political clout.

International support through CRC Committee (political) and potential donors Better knowledge on the situation of child rights Simultaneous advances in access to justice for children and other policy/legal areas allowing for synergies. An ICRM within an NHRI The establishment of an NHRI in Viet Nam has been under discussion and remains highly uncertain in the short-term, as reported by numerous national and international actors, including public positions taken by high-level decision-makers. Yet, if a NHRI is eventually established in Viet Nam, its mandate must explicitly include children’s human rights. The reason is two-fold. Firstly, across Asia and in

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Child-sensitive approach Should discussions on an NHRI progress, it will be critical to ensure children’s rights and/ or the Convention on the Rights of the Child are explicitly part of the NHRI mandate. This provides a solid basis to ensure children’s rights are considered in the implementation of its mandate and requires strategic debate on the issue. Specific provisions for children’s accessibility to an NHRI regardless of legal capacity, ability to directly consult with children and competency to visit sites where they could be at risk are also essential, especially if a separate ICRM has not been created. Child specific structure

particular East Asia, most ICRMs have been established as a special department within NHRIs. While there has been mixed reviews about their capacity and effectiveness in dealing with child rights, it would be important to strategically plan ahead in case this option is selected and ensure adequate positioning accordingly. Secondly, NHRIs often benefit from better political visibility and influence than autonomous child rights mechanisms. Their competencies are often – though not always – stronger, though less child-focused. The downside is children’s rights often have limited visibility in such institutions. Given the current context in Viet Nam, this stream is unlikely to unfold in the short-term. However, it should be considered given the probability that an NHRI – or similar body – is created in the coming decade.

Provisions must be created for a child-specific structure within an NHRI, especially if a separate ICRM is not in place. Depending on the overall structure of the NHRI, it could be a commissioner specifically in charge of children’s rights within a collective commission or body, or a deputy head of office focused on child rights issues with other deputies specialized in different issues backed by a secretariat. A back-stop solution is a separate department for children’s rights within the NHRI. Following this suggested structure, the child rights department would likely be small and include no more than a handful of staff. It would, however, work closely with other horizontal and thematic departments of the NHRI. This would include working with the individual complaints department to ensure processes are child-sensitive and complaints are addressed with a child rights approach. This would involve undertaking joint research and activities with the rights promotion department or those focused on marginalized groups, such as persons with disabilities and ethnic minorities to highlight the specific situations of children. In other words, a significant part of its activities would consist of mainstreaming children’s rights internally and ensuring their ongoing visibility. Overall, this would be easier if the NHRI’s mandate was clear in this respect.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Challenges and opportunities Opportunities:

Challenges: No NHRI is created Childrenâ&#x20AC;&#x2122;s rights become part of a controversial human rights debate they have been spared from thus far Weak NHRI with limited mandate affecting its capacity to adequately monitor childrenâ&#x20AC;&#x2122;s rights along with other human rights Child rights are marginalized/invisible within the NHRI

Higher visibility of the institution to rights holders likely to file a complaint or raise an issue on childrenâ&#x20AC;&#x2122;s behalf More political clout and influence regarding other actors within the State system due to its higher status Opportunities for pooling resources and multi-disciplinary, cross-sectional approaches to issues.

Child rights structure does not receive sufficient human and financial resources NHRI does not have child-sensitive mechanisms.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Roadmap Phase 1: Advocacy, information and recognition of principles o Ensure ICRM principles are included in national legislation. The Child Law amendment underway provides an important legal platform to institutionalize ICRM in Viet Nam. o Maintain building knowledge on an ICRM and relevant international standards among decision-makers and the public at national and local levels. This involves reinforcing an ICRM’s visibility and value in the eyes of stakeholders, through visits and information tools informed by experiences from countries with similar levels of development.

Phase 3: Capacity-building of established mechanisms and processes as well as share lessons beyond child rights issues o Ensure ongoing capacity of monitoring mechanisms (skills, resources, political support) o Review implementation of recommendations made by monitoring mechanisms o Engage in discussions on an NHRI to ensure visibility of child rights.

o Develop a media coalition in support of an ICRM. The media’s role in identifying child rights violations and raising public awareness on children’s rights can be used to generate momentum in support of an ICRM.

Phase 2: Set up mechanisms and processes o Work with stakeholders to enhance their own monitoring capacity. Assess their mandates, capacities and work processes to help identify measures to support effective monitoring functions in line with international standards. o Engage in establishment of an autonomous ICRM ahead of the CRC reporting process, which will take place by the end of 2017. The goal would be to ensure fulfilment of CRC Concluding Observations prior to the next review and enhance Viet Nam’s compliance with its international commitments.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

References

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Publications and foreign legal documents 1. Asia Foundation, Improving the effectiveness of Information Provision for National Assembly Deputies, October 2013, p. 20. 2. Asia Foundation, Toward more effective Government oversight by the National Assembly of Vietnam, January 2013. 3. Asian Development Bank. 2013. Civil Society Briefs – Philippines. 4. CRIN, Access to justice for children: Vietnam, september 2014. 5. Croatian Parliament. Introduction of committees at http://www.sabor.hr/Default. aspx?sec=4676 Last accessed 9 July 2015 6. Dinorah Azpuru, Cultura politica de la democracia en Guatemala y las Americas: Hacia la igualdad de oportunidades, Latin American Public Opinion Project, Vanderbilt University, December 2012. 7. Guatemala’s Children and Adolescents’ Defender. Annual Report 2013, p. 155. 8. ILO, 2012. Vietnam Labour Inspection Needs Assessment), accessed at http://www.ilo.org/ wcmsp5/groups/public/---ed_dialogue/---lab_admin/documents/publication/wcms_194431. pdf 9. Joint submission by Vietnamese national civil society organisations to CRC, 2011, accessed at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=VNM&Lang=EN 10. OHCHR and Centre for Economic and Social Rights, Who Will BeAccountable?Human Rights and the Post-2015Development Agenda, 2013, p.44. 11. Republic of Croatia. Ombudsman for Children Supplementary Report to the CRC Committee, 2014. 12. Republic of Croatia. Third and Fourth Periodic Reports to the CRC Committee, 2013. 13. Republic of Croatia’s Ombudsman for Children. Ombudsman for Children, Ten Years of the Ombudsman for Children in the Republic of Croatia, Achievements and challenges, 2013. 14. Republic of the Philippines. 2009, Third and Fourth Periodic Report to the CRC Committee, 2009, para. 37. 15. Republic of the Philippines. Department of Social Welfare and development. Introduction of the Organisational Structure at http://www.dswd.gov.ph/about-us/organization-and-functions/ Last accessed 9 July 2015. 16. Republic of the Philippines. Introduction of the Office of the President: Council for the Welfare of Children at http://www.humantrafficking.org/organizations/286 Last accessed 9 July 2015 17. Republic of the Philippines. Republic Act no. 10630, An act strengthening the juvenile justice system in the philippines, amending for the purpose Republic Act no. 9344, otherwise known as the “juvenile justice and welfare act of 2006” and appropriating funds therefore, Sec. 8.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

18. The Raoul Wallenberg Institute of Human Rights and Humanitarian Law, A Measure of Last Resort? The Current Status of Juvenile Justice in ASEAN Member States, pp. 194-195. 19. UNICEF Innocenti 2013, Championing Children’s Rights – A Global Study of Independent Human Rights Institutions for Children. 20. VAPCR. 2015. Hội Bảo vệ Quyền trẻ em Việt Nam phấn đấu trở thành hội chuyên nghiệp bảo vệ quyền trẻ em (VAPCR aims to become a professional association on protection of children rights) accessed at http://www.treemviet.vn/hoi-bao-ve-quyen-tre-em-viet-nam-phan-dau-trothanh-hoi-chuyen-nghiep-bao-ve-quyen-tre-em.html). 21. Vietnam Development Report 2010, Modern Institutions, Joint Donor Report to the Vietnam Consultative Group Meeting (Hanoi, 3-4 December 2009),. 22. Vietnam’s national assembly. Introduction on CECY at http://quochoi.vn/gioithieu/caccoquanquochoi/hoidongdantocvacacuyban/uybanvanhoagiaoducthanhnienthieunienvanhidong/ Pages/thanh-vien.aspx 23. Vietnamese Women’s Union. Introduction of its goals and key activities for 2012 – 2017 at http://vwu.vn/newsdetail.asp?CatId=2&NewsId=18276&lang=VN accessed June 27th 2015.

Vietnam’s Legal documents 1. Vietnam’s Constitution 2013. 2. Law on Children Protection, Care and Education No 25/2004/QH11 3. Law on the Organization of the National Assembly No 57/2014/QH13 4. Law on State Audit No 81/2015/QH13 5. Law on the Organization of the People’s Court No 62/2014/QH13. 6. Decision No.535/2014/TTg by the Prime Minister dated 14/04/2014 on the approval of the plan for implementation of CRC’s concluding observations 7. Decision No. 1555/2012/QD-TTg dated 17/10/2012 of the Prime Minister on the approval of the National Action Plan for Children 2012-2020 8. Decision 2155/2013/QD-TTg dated 11/11/2013 on the approval of the proposal for enhancing the capacity of the Inspectorate of the sector of Labour, Invalids and Social Affairs by 2020. 9. Decree 39/2013/NĐ-CP dated 24/4/2013 on Organization and Operation of the Inspectorate of the sector of Labour, Invalids and Social Affairs. 10. Resolution No. 30c/NQ-CP on 08/11/2011 on the Master Programme on Public Administrative Reform by the Government in 2011-2020, and Resolution No 76/NQ-CP on 13/6/2013 on amendments of the Resolution No 30c/NQ-CP dated 08/11/2011

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

UN documents 1. CERD. Concluding observations of the Committee on the Elimination of Racial Discrimination: Viet Nam. CERD/C/VNM/CO/10-14, para. 2. CERD. Report of the Committee on the Elimination of Racial Discrimination. Fifty eighth session (6 23 March 2001); Fifty ninth session (30 July 17 August 2001). General Assembly Official Records. Fifty sixth Session Supplement No. 18 (A/56/18) para 408 â&#x20AC;&#x201C; 428. 3. CESCR. Concluding observations on the second to fourth periodic reports of Viet Nam. E/C.12/ VNM/CO/2-4 4. CRC Committee General Comment No. 12 on The right of the child to be heard, CRC/C/GC/12, para. 22. 5. CRC Committee General Comment No. 13 on The right of the child to freedom from all forms of violence, CRC/C/GC/12 6. CRC Committee, General Comment No. 2 on The Role of Independent National Human Rights Institutions in the Protection and Promotion of the Rights of the Child, CRC/GC/2002/2 7. CRC Committee, General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), U.N. Doc. CRC/GC/2003/5 (2003). 8. CRC. Sixtieth session. Consideration of reports submitted by States parties under article 44 of the Convention. Concluding observations: Viet Nam. CRC/C/VNM/CO/3-4 9. CRC. Thirty-second session. Consideration of reports submitted by states parties under article 44 of the convention. Concluding observations: Vietnam. CRC/C/15/Add.200 on 18 March 2003. 10. Human Rights Council. Twelfth session. Report of the Human Rights Council on its twelfth session. Decision 12/110. Outcome of the universal periodic review: Viet Nam. A/HRC/12/50 11. UN Human Rights Council. Twenty-sixth session. Report of the Working Group on the Universal Periodic Review: Vietnam. A/HRC/26/6/Add.1.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

ANNEXES

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Annex 1 – Frequently asked questions by stakeholders on the establishment of an ICRM in Viet Nam 1. A number of institutions have mandate covering monitoring in general and children –related issues, why an additional agency? Could the existing gap in child rights monitoring – if any - be addressed by improving existing monitoring mandates of relevant agencies? 2. Should the focus on child rights be the implementation than monitoring? 3. Whether the establishment of a new agency would be contradict with the principles of the on-going administrative reform? 4. How an ICRM would be useful to my work? (as a staff from MOLISA/DOLISA/Department of Education/Department of Health/School Teacher/etc) 5. What would be the size and cost implication of the institution? 6. What would be the relationship of the ICRM with existing institutions working on child rights, especially those have monitoring function? 7. How to assess the performance of the ICRM, and to keep the institution as an independent body, accountable? 8. Which institutions should the ICRM belong to? 9. How to keep the institution independent? 10. How children and adults in concern could contact or access the ICRM? 11. Should the ICRM have the capacity to handle complaint? In this case how it should be different from a judiciary body.

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

2019: CRC/UPR Action plan

2017 – 2018: CRC + UPR reporting

2016: Children’s Law HRC Election

2015: Children’s Law

Timeline/landmarks

Testing different functions in CRM (Reporting + Visit, Rights Promotion, Individual Complaints, Investigation, Legal Aid, Referring cases to court, Hearing.

Enhance the role of stakeholders: NA, MOLISA Inspection, Civil society actors, Media, Fatherland Front‘s monitoring capacity;

Develop tools for advocacy. Improve Remedies for CR violations: working the justice system, Hotline and legal aid.

A provision on Child Rights Monitoring Principle

Strengthening the existing system

Annex 2 – Stakeholder analysis summary

2015 – 2020

2020 - 2025

Public Advocacy

NA advocacy +

Engagement in CR Advocacy, Exchanges

Building coalition: Media + Academic + Child Rights Community +/HR Communitiy + MPs Engaging with NHRI process

Engaging with NHRI process

Explore stake-holders

Establishing External Mechanism

Autonomous Agency

Specialised Agency/ External Body

Quality of Child Rights monitoring

Advocacy messages

Annex 3 – Institutional analysis summary Institution

Monitoring function

Strengths

Weaknesses

Government (including MOLISA)

Inspection system

Well integrated into ministries

Internal mechanism

Binding due to hierarchical rules

Focus on respect for procedures, administrative compliance

Carried out by staff with technical knowledge Reactive to situations in the news

Sector, rather than holistic, approach Lack of systemic review No reporting system for children Limited inspection staff experience in child rights

National Assembly

Government oversight

Constitutional mandate

Limited human and financial capacities

Various oversight tools

Many part-time members also part of Government

Direct contact with situation on the ground (local representatives, link with Peoples’ Councils) Citizens’ complaint mechanism

Lack of follow up on recommendations Oversight of Government only (not private sector, not NA itself ) Low priority for child rights Children’s access to complaint mechanism uncertain

Fatherland Front and mass organizations

Social critic

Constitutional mandate

Link to Communist Party

Mandate in grassroots democracy and coordination of grassroots organizations

Conflict of interest with monitoring function over member organizations

Youth Union as respected structure with local members Youth Union’s legal mandate in promoting child participation

Social accountability only No child rights structure Youth Union’s limited experience in working with marginalized children and taking child rights approach Low political clout for mass organizations in national system

Civil society organizations

Social organization

Work on the ground

Limited funding

Expertise in children’s daily experiences

Weak capacities

Judicial remedy

High staff turnover Funding issue Low level of influence on policy-making VAPCR highly specialized, structural sustainability beyond individual

Binding

Low use of justice system in general

Legal aid system including at local level and mobile units

Restrictions on access to justice for children, due to legal capacity and legal representation issues

Newly created Family and Juvenile Court

Legal aid system very restricted Lack of child-sensitive structures and mechanisms (evolving)

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Office of the National Steering Committee on Anticorruption68

Vietnam Association of Jurists

Body/ Organisation

Not publicly available

Number of staff at the national level (estimated)

13. Manage the associationâ&#x20AC;&#x2122;s assets69;

12. Handle complaints from members and defending for their rights and benefits;

11. Advocate with Vietnamese jurists abroad;

10. Take part in relevant international affairs;

9. Publishing;

8. Act on behalf of membersâ&#x20AC;&#x2122; interest;

7. Represent the voice of jourists and legal practitioners to the Party and the State; Providing legal training;

6. Up-hold political securities, social order and safety;

5. Act as member of the Fatherland Front; taking part in other political and legal activities;

4. Provide legal aid; taking part in relevant State programmes including monitoring;

3. Provide legal education;

2. Contribute to the development of law; and legal studies; monitoring the implementation of law;

1. Organise jurists and law practitioners;

Secretariat body for the Steering Committee on Anti-Corruption

Mandates

2,940,000,000

30,310,000,000

VND

155,560

1,603,700

USD

Estimated Budget in 2010

Annex 4 â&#x20AC;&#x201C; Examples of annual budgets for some national bodies or organisations in 2010 (1 USD = 18.900VND)

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Vietnam Association of Journalists

Vietnam Federation of Football

Body/ Organisation

100

Number of staff at the national level (estimated)

13. Issue relevant rules and regulations for football developmentâ&#x20AC;Ś..71

12. Mobilise resources for football development;

11. Handle disputes among players, coaches, staff, and members;

10. Provide professional support to local football development;

9. Develop membership, defend its membersâ&#x20AC;&#x2122; interest by law;

8. Develop a health environment for football in Vietnam;

7. Issue permission and authorise members and other agencies to host different football games under the mandates of the federation;

6. Organise, manage and coordinate the national tournament and host international games.

5. Develop national framework for professional tournaments inline with international norms and standards.

4. Collaborate with authorities for international cooperation in football.

3. Train and develop capacity for human resrouces development for professional football.

2. Develop the capacity building system for different ages.

1. Mobilise and organise its members to join in for football development in Vietnam, in particular among youth.

20 tasks including:

8. Take part in international cooperation in line with the policy of international affairs of the party and the State.70

7. Organise relevant services;

6. Defend the interest of journalists in professional exercises;

5. Provide incentives for good journalists;

4. Collaborate with other agencies to build political and professional capacity for journalists;

3. Provide feedbacks and recommendations with the Party and State agencies in developing and implementing relevant mechanism for journalism development;

2. Make recommendations to relevant State agencies dealing with benefits and disciplines of journalist;

1. Make recommendations to the party and the State on the management of journalism.

Mandates

15,000,000,000

38,090,000,000

VND

736,500

2,015,340

USD

Estimated Budget in 2010

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

National Committee for the federation of associations of art, performance and literature

Body/ Organisation

Number of staff at the national level (estimated)

8. Provide critiques and advice on relevant matters of art and culture as per requests by organisations and individuals.72

7. Organise art and cultural events following relevant laws and regulations;

6. Contribute recommendations for the local party secretariat, authorities and local associations on the development of art and culture on the ground.

5. Speak on behalf of art and cultural practitioners in important political and social events;

4. Facilitate international cooperation and support Vietnamese abroad in art and cultural activities;

3. Capacity building for artists, in particular young artists and artists from ethnic minorities;

2. Contribute recommendations to the party and State authorities in developing policies and mechanism in literature, art and culture and those for artists for art and culture development. Defend political interest and legal professional interest of members. Improve work and life conditions of artists;

1. Collaborate with professional associations of art and culture at the national and local levels in their activities, inform members in these activities; facilitate exchance of experience by members;

Mandates

7,150,000,000

VND

378,307

USD

Estimated Budget in 2010

72 Following Decision no 134/2005/QD-BNV dated 15/12/2005 by Ministry of Home Affairs on the approval of the amended charter of the federation.

71 Summarised from Decision No. 243 /QĐ-BNV on 21/3/ 2014, accessed at http://www.vff.org.vn/dieu-le-408/dieu-le-lien-doan-bong-da-viet-nam-sua-doi-bo-sung-nam-2014-22198.html on 25/7/2015

70 Summarised based on Decision No 124/QD-BNV on 09/02/2011 by the Ministry of Home Affairs on the approval of the amended charter of the Vietnam Journalists Association. Accessed at http://vja.org.vn/ Image/file/bo%20noi%20vu.pdf 25/7/2015.

69 13 mandates included in the charter of the association approved by Decision No. 1004 /QĐ –BNV on 31st August 2010 of the Minister of Home Affairs accessed at http://www.hoiluatgiavn.org.vn/ 25/7.2015.

68 *The Steering Committee has no longer a body under the Prime Minister as stated in the budget but a body under the Department of Home Affairs of the Central Political Bureau of the Communist Party since 2013 following the Decision No 162-QĐ/TW of the Bureau. The Steering Committee is served by a Division of Anti-corruption with a staff of probably less than 20 (including a head, 2 deputies(could be increased, and two sections including heads of sections and staff of sections) – following decision No 09/QD – BNCTW dated 21/02/2013 of the Department of Home Affairs of the Central Political Bureau.

Annex 5 - Interview methodology and questions Interviews and focus group discussions start with a clear explanation of the objective of the interview, how information will be used, and request for consent towards use of information in the study (through explicit attribution or anonymously). Definition of terms is provided as needed.

Bilateral semi-structured interviews Semi-structured interviews are conducted in a flexible manner, but with the objective to collect specific data. They largely build on trust and openness in sharing information and are therefore based on dialogue rather than questioning. They also offer opportunities for triangulation of information and analysis gathered from other sources. In some cases, upon requests from interviewees, a summary of themes to be tackled during the interview was provided in advance. Objective

Questions

Introduction, trust-building, context

Can you tell us about what you do, your current position, maybe some background about yourself and your career until now? Can you tell us briefly about your organization/institution/office? How do you see the situation of children in Viet Nam? How are they considered in society? What are the main challenges they face? What are the positive aspects? Could you describe the mechanisms (Governmental and non) through which child rights are implemented in Viet Nam? Do you see some challenges? When a childâ&#x20AC;&#x2122;s right is being violated, what remedies currently exist for redress? Are they effective?

Technical information

Does the organization/institution/office have a specific role in relation to children? If not, does it come across child rights issues within its mandate? If yes, what is the role exactly? What is the legal basis for its operation/mandate? Has there been any changes in your institutionâ&#x20AC;&#x2122;s mandate since it has been established in its current form? Are you anticipating upcoming changes?

Analytical information

Do you think the mandate is appropriate? Would you see competences that are missing? Others that are too broad and difficult to manage? If you could describe your main function in one word, what would it be? Which difficulties do you face in carrying out your work on a daily basis? Why do you think that is? How do you think your institution could be more effective? Who/which organization do you work with to fulfill your role? How is the coordination going? How do you think it could be improved? If you could ask for one thing for your institution, what would it be?

Child rights monitoring

Does your organization have a monitoring function? How does it work in practice? What are the difficulties? What are the positive dimensions? How could it be made more effective? Which institution(s) currently monitor child rights in Viet Nam? Can children participate in decision-making? If there were to be a child rights monitoring mechanism in Viet Nam, where do you think it should be located? What would make it effective? Which difficulties would it meet with?

Independent child rights monitoring

Which organizations do you see as being independent in Viet Nam? What makes them independent? What are the elements/functions in which they have some degree of independence? What would be your views about an independent child rights monitoring mechanism? Would you see your organization interacting with this mechanism? If yes, how? If no, why?

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Focus group discussions and work groups with adults Focus groups discussions and working groups are introduced with an overview of the concept of independent child rights monitoring, international practice, and its possible relevance in the Viet Nam context. Provincial and district level authorities How are child rights monitored at provincial and district level? Who does it? When there is a problem (in a school, in a child care institution, in a family etc), who do you contact? Why? Do you think their response solves the problem? What are the main challenges to your daily work for children? If you need advice to carry out your work related to children, who do you ask? Do you think their response solves the problem? Which institution(s) do you interact with at national level? What are the main strengths/positive aspects? (list at least 4) If there were to be a child rights monitoring mechanism at the provincial level, what would it do? How would it look like? (Where should it be located? Which competencies?...) Teachers What are the main issues children face in your area? When they have a problem, who do children go to? Why? When they have a problem, who do children not go to? Why? If you see a problem, who do you go to? who do you not go to? Do you think adequate action is taken when a problem arises to solve it? How do you cooperate with provincial authorities? What are the strengths/challenges of authorities in relation to children? Are children able to participate in your classroom? in the school? why? What do you think of an independent child rights monitoring mechanism? With whom should it be and what should it do? How do you expect to interact with it? Parents What are the main issues your children face? If you have a problem with the administration/service delivery, who do you go to? Who do you not go to? Why? Do you have a say in policies and programmes for children where you live (commune, neighborhood)? Do you feel adequately supported in your role as parent? What do you think should be done to enhance the quality of policies and interventions of authorities in the commune? What do you think of an independent child rights monitoring mechanism? With whom should it be and what should it do? How would you interact with it?

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Consultations with children Consultations with children are child-led and based on role-plays aiming to seek childrenâ&#x20AC;&#x2122;s views on the questions indicated below. Childrenâ&#x20AC;&#x2122;s names are kept confidential but the list of interviewees includes their age and gender. Children What is the most important right for you? What do you think is the child right most frequently not respected/violated? Why? Who is responsible for fulfilling that right? Why do you think they do not do their job? If you have a problem, who do you go to? Who do you not go to? Why? Do you feel you have a say in decisions that affect you? If there were a public authority whose role was to listen to you, how would you like to be in contact with it? what do you think would be the best activity through which they could listen to you?

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Annex 6 â&#x20AC;&#x201C; List of persons consulted (group consultations and bilateral interviews) #

Institution

Position

Name

National Assembly/Committee on Culture, Education, Youth and Children

Vice chairman

Ngo Thi Minh

National Assembly/ Caucus of Women National Assembly Representative

Member

Bui Thi An

National level

Office of the National Assembly

Nguyen Thanh Hai

MOLISA/Department of Children Protection and Care

Dang Hoa Nam

MOLISA/Department of Policy and Legal Affairs

Ha Dinh Bon

Ministry of Justice/ Department of Criminal Justice

Lien

Standing Office of the Steering Committee on Human Rights of the Government

Director

Nguyen Thanh Son

Deputy Director

Ho Chi Minh Political Academy/Vietnam Institute for Human Rights Study

Director

Dang Dung Chi

UNICEF

Representative

Youssouf Abdel-Jelil

UNICEF

Deputy Representative

Jesper Moller

UNICEF

Chief of Social Policy and Governance Programme

Yoshimi Nishino

UNICEF

Parliamentary Governance Specialist

Pham Thi Lan

UNICEF

Children Protection Specialist

Le Hong Loan

UNDP/Governance Cluster

Analyst

Le Nam Huong

International Organizations and NGOs

UNODC

Nguyen Thi Minh Nguyet

RTCCD

Deputy Director,

Nguyen Trong An

Center for Family and Population Studies

Senior Advisor

Vu Ngoc Binh

Oxfam/Governance Programme Save the Children Save the Children

Nguyen Thu Huong Country Director

Gunnar Andersen Le Quang Nguyen

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Save the Children

Nguyen Le Hien Nga

Save the Children

Nguyen Lu Gia

Institute for Social, Economics and Environmental Studies

Le Quang Binh Others Former senior UNICF staff

Hoang Van Sit

Former Deputy Chairmain of the National Assembly Committee on Culture, Education, Youth and Children

Nguyen Minh Thuyet

Dien Bien Province

Dien Bien Department of Culture, Sport and Tourism

Tran Van Hoa

Dien Bien Department of Culture, Sport and Tourism

Dao Ngoc Luong

Dien Bien Delegation of National Assembly Representatives

Vi Thi Huong

Dien Bien Delegation of National Assembly Representatives Office

Nguyen Mai Hong

Dien Bien Department of Investment and Planning

Nguyen Viet Thanh

Dien Bien Youth Union

Trinh Van Dung

Dien Bien Youth Union

Vu Nhu Quang

Dien Bien Department of Health

Vi Thi Hoa

Dien Bien Department of Health

Nguyen Hong Thanh

Dien Bien Womenâ&#x20AC;&#x2122;s Union

Ha Thi Tuoi

Dien Bien Department of Labour, Invalids and Social Affairs

Tran Van Bon

Dien Bien Department of Education and Training

Do Van Muoi

Dien Bien Department of Justice

Le Quang Muoi

Dien Bien Department of Justice

Le Quang Nhuan

Dien Bien Womenâ&#x20AC;&#x2122;s Union

Luong Hong Nhung

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Dien Bien Centre for Children Welfare

Le Xuan Hong

Dien Bien Department of Justice

Nguyen Quynh Van

Dien Bien Department of Investment and Planning

Pham Duc Toan

Dien Bien Dong District Department of Labour, Invalids and Social Affairs

Bui Van Thuoc

Dien Bien Department of Labour, Invalids and Social Affairs

Lo Thi Thoa

Dien Bien Department of Labour, Invalids and Social Affairs

Nguyen Thi Chuc

Dien Bien Department of Labour, Invalids and Social Affairs

Tran Thi Nhuan

Dien Bien Department of Labour, Invalids and Social Affairs

Vu Thi Le

Dien Bien Department of Labour, Invalids and Social Affairs

Nguyen Kim Oanh

Dien Bien Department of Labour, Invalids and Social Affairs

Ha Thi Thu

Dien Bien Department of Labour, Invalids and Social Affairs

Le Thi Thuy

Dien Bien Department of Labour, Invalids and Social Affairs

Nguyen Thi Chuc

Dien Bien Fund for Children Protection and Welfare

Trinh Thi Ha

Dien Bien Peopleâ&#x20AC;&#x2122;s Council Office

Nhu Van Quang

Dien Bien Peopleâ&#x20AC;&#x2122;s Council Office

Bach Hai Yen

Dien Bien Department of Public Securities

Nguyen Thi Hoai

Dien Bien Department of Information and Communications

Le Thi Kim Thu

Dien Bien Department of Information and Communications

Mai Hoang Ha

Dien Bien Television

Vu Van Phuc

Dien Bien Department of Information and Communications

Nguyen Van Cong

Dien Bien Phu News

Vu Tat Loi

Dien Bien Phu News

Nguyen Thi Hien

Headmaster, Keo Lom Secondary school

Pham Viet Anh

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Vice-headmaster, Keo Lom Secondary school

Nguyen The Hung

Teacher, Keo Lom Secondary school

Pham Thi Trang

Teacher, Keo Lom Secondary school

Vu A Phia

Teacher, Keo Lom Secondary school

Nguyen Tuan Phong

Teacher, Keo Lom Secondary school

Tran Trong Hien

Teacher, Keo Lom Secondary school

Nong Thi Hong Hanh

Teacher, Keo Lom Secondary school

BuiNgoc Linh

Teacher, Keo Lom Secondary school

Luong Quy Thuoc

Teacher, Keo Lom Secondary school

Tran Ngoc Hung

Keo Lom Commune People’s Committee

Vice chairman

Lo Van Nhot

Keo Lom Commune Youth Union

Secretary

Mua A Lu

Keo Lom Commune People’s Committee

Culture Officer

Thao A Sua

Keo Lom Commune Women’s Union

President

Quang Thi Thanh

Keo Lom Commune People’s Committee

Legal Officer

Giang A Thao

Keo Lom Commune People’s Council

Vice President

Lo Van Hoan

Keo Lom Commune People’s Committee

Statistic Officer

Vu A Tho

Keo Lom Commune Office

Officer

Mua A De

Keo Lom Commune Labour & Social Affairs

Social Affairs Officer

Lo Van Thanh

Keo Lom Commune People’s Committee

Land Adminstration Officer

Mua A Thai

Keo Lom Commune People’s Committee

Finance Officer

Nguyen Van Tien

Keo Lom Commune People’s Committee

Party Secretary

Sung Va Chung

Keo Lom Commune People’s Committee

Officer

Va A Bay

Keo Lom Commune People’s Committee

Officer

Cha Lau Mua

Keo Lom Commune People’s Committee

Officer

Ly A Dia

Keo Lom Commune Fatherland Front

Deputy

Sung Thi Thuy

Keo Lom communes

Parent

Vang Thi Thu

Keo Lom communes

Parent

Vang Thi Sau

Keo Lom communes

Parent

Vang Thi Genh

Keo Lom communes

Parent

Lo Thi Hien

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Keo Lom communes

Parent

Lo Van Chung

Keo Lom communes

Parent

Lo Van Thuan

Keo Lom communes

Parent

Lo Thi Hanh

Keo Lom communes

Parent

Quang Thi Xinh

Na Nhan Commune

Na Nhan People’s Committee

Quang Van Son

Na Nhan Commune

Na Nhan Women’s Union

Tong Thi Phuong

Na Nhan Commune

Na Nhan Commune People’s Council

Lo Van Chuong

Na Nhan Commune

Na Nhan Commune Cultural Officer

Nguyen Thi Thom

Na Nhan Commune

Na Nhan Commune Legal Officer

Luong Thi Hai

Na Nhan Commune

Na Nhan Commune Social Affairs Officer

Quang Thi Huong

Na Nhan Commune

Na Nhan Commune Police Officer

Mua A Long

Na Nhan Commune

Na Nhan Commune Officer

Lo Thi Phuong

Na Nhan Commune

Na Nhan Commune Clinic

LO Van Hai

Na Nhan Commune

Na Nhan Commune Officer

Tong Thi Phuong

Na Nhan Commune

Na Nhan Commune Cultural – Social Officer

Ca Thi Huong

Na Nhan Commune

Na Nhan Commune Party Secretary

Quang Van So

Na Nhan Commune

Na Nhan Commune Youth Secretary

Luong Thi Thuy

Na Nhan Commune

Na Nhan Commune People’s Council

Luong Thi Ninh

Na Nhan Commune

Na Nhan Commune People’s Committee

Mua A Hu

Na Nhan Commune

Na Nhan Commune Officer

Mua A Hong

Na Nhan Commune

Na Nhan Commune Officer

Nguyen Thi Huong Giang

Na Nhan Commune

Na Nhan Commune Officer

Nguyen Thi Hoa

Na Nhan Commune

Parent

Lo Duc Thuan

Na Nhan Commune

Parent

Quang Thi Thanh

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Na Nhan Commune

Parent

Quang Van Luan

Na Nhan Commune

Parent

Lo Van Tien

Na Nhan Commune

Parent

Luong Van Bien

Na Nhan Commune

Parent

Mua A Hu

Na Nhan Commune

Parent

Quang Van Duc

Na Nhan Secondary school

teacher

Bui Thi Van Khanh

Na Nhan Secondary school

teacher

Le Duc Thinh

Na Nhan Secondary school

teacher

Duong Trong Khanh

Na Nhan Secondary school

teacher

Nguyen Thi Ha

Na Nhan Secondary school

teacher

Tran Thi Van

Na Nhan Secondary school

teacher

Lo Thi Son

Na Nhan Secondary school

teacher

Hoang Thi Thu Hong

Na Nhan Secondary school

teacher

Nguyen Van Tue

Na Nhan Secondary school

teacher

Nguyen Thi Hoa

Na Nhan Secondary school

teacher

Nguyen Thi Huong Giang

Na Nhan and Keo Lom Secondary school

40 children

Keo Lom commune

3 children

Na Nhan commune

15 children

Ninh Thuan Province

Ninh Thuan Province Peopleâ&#x20AC;&#x2122;s Council

Nguyen Thanh Chieu

Ninh Thuan Province Department of Statistics

Nguyen Van Huong

Ninh Thuan Province Department of Culture, Sport and Tourism

Dinh Xuan Huong

Ninh Thuan Province Department of Finance

Nguyen Thi Bich Linh

Ninh Thuan Province Department of Labour, Invalids, Social Affairs

Le Thi Sua

Ninh Thuan Province Department of Planning and Investment

Dang Hoang Long

Ninh Thuan Province Department of Planning and Investment

Hoang Ngoc Trang

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Ninh Thuan Province Department of Planning and Investment

Tran Thuc Doan

Ninh Thuan Province Department of Planning and Investment

Nguyen Trung Khanh

Ninh Thuan Province Department of Education and Training

Thieu Thi Phong Lan

Ninh Thuan Province Department of Sciences and Technology

Nguyen Duc Thang

Ninh Thuan Province Department of Ethnic Minorities Affairs

Nguyen Van Toan

Ninh Thuan Province Department of Transport

Tran Minh Tu

Ninh Thuan Province Department of Health

Truong Van Tho

Ninh Thuan Province Fatherland Front

Pham Thi Bich Ha

Ninh Thuan Province Farmers’ Union

Nguyen Thi Ngoc Yen

Ninh Thuan Province Women’s Union

Le Thi Thu Hien

Ninh Thuan Province Youth Union

Nguyen Thi Huong

Ninh Thuan Centre for Social Works

Nguyen Van Binh

Thuan Nam district, Division of Labour, Invalids and Social Affairs

Tran Duc Long

Ninh Hai district, Division of Labour, Invalids and Social Affairs

Nguyen Thi Thanh Xuan

Ninh Son district, Division of Labour, Invalids and Social Affairs

Nguyen Thi Ngoan

Phan Rang district, Division of Labour, Invalids and Social Affairs

Nguyen Thanh Vinh

Thuan Bac district, Division of Labour, Invalids and Social Affairs

Nguyen Ngoc Dinh

Bac Ai district, Division of Labour, Invalids and Social Affairs

Nguyen Bich Thai

Ninh Phuoc district, Division of Labour, Invalids and Social Affairs

Nguyen Thi Doan

Bac Ai district, Phuoc Thanh Commune People’s Committee

Nguyen Canh Tai

Bac Ai district, Phuoc Thanh Commune Fatherland Front

Tran Thi Kim Hue

Bac Ai district, Phuoc Thanh Commune Youth Union

Chamalea Thi Ngoan

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Bac Ai district, Phuoc Thanh Commune Farmers’ Union

Chamalea Tuynh

Bac Ai district, Phuoc Thanh Commune Child Care staff

To Thi Thao

Bac Ai district, Phuoc Thanh Commune staff

Dao Thi Hoang Hau

Bac Ai district, Phuoc Thanh Commune Legal affairs officer

Kator Nieu

Bac Ai district, Phuoc Thanh Commune Office

Truong thi Thanh Van

Bac Ai district, Phuoc Thanh Commune Deputy Chief Police Officer

Chamalea Trieu

Bac Ai district, Phuoc Thanh Commune, head of Maro village

Cada Binh

Bac Ai district, Phuoc Thanh Commune, Suoi Lo village, collaborator for Child Care

Chamalea Thi Ngam

Bac Ai district, Phuoc Thanh Commune staff, Head of Madu village

Pinang Chuc

Bac Ai district, Phuoc Thanh Commune, head of Dabacai village

Cao Thanh Hoa

Bac Ai district Division for Labour, Invalids and Social affairs

Pi Thi Bich Thai

Bac Ai district, Phuoc Thanh Commune staff, Child Care collaborator for Ma Nai village

Chamalea Thi Te

Thuan Bac district, Bac Phong Commune Office of the Party

Nguyen Thi Hai Thanh

Thuan Bac district, Bac Phong Commune Veteran

Nguyen Minh Tuan

Thuan Bac district, Bac Phong Commune Red Cross

Tran Vo Thuy Doanhans

Thuan Bac district, Bac Phong Commune Women’s Union

Nguyen Thi Kim Anh

Thuan Bac district, Bac Phong Commune Fatherland Front

Le Thi Phan

Thuan Bac district, Bac Phong Commune People’s Committee

Nguyen Van Tien

Thuan Bac district, Bac Phong Commune Farmers’ Union

Nguyen Kim Hung

Thuan Bac district, Bac Phong Commune People’s Council

Nguyen Van Tuan

Thuan Bac district, Bac Phong Commune Military staff

Ha Quoc Thanh

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Thuan Bac district, Bac Phong Commune Youth Union

Tran Van Tuan

Thuan Bac district, Bac Phong Commune Legal Affairs Officer

Ha Quoc Minh

Thuan Bac district, Bac Phong Commune Police

Vu Ngoc Tinh

Thuan Bac district, Bac Phong Commune Child Care officer

Thanh Thi Kim Thinh

Thuan Bac district, Bac Phong Commune Households management officer

Huynh Thi Kieu Giang

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Bui Thi Thuy Trang

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Ngo Duc Hoa

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Bui Minh Tinh

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Hoang Minh An

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Nguyen Van Thanh

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Nguyen Thi Thanh Tuyen

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Vo Thi Thien

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Nguyen Thi My Hiep

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Nguyen Xuan Hoang Mai

Thuan Bac district, Bac Phong Commune, Cao Ba Quat Secondary school

Pham Thi Kim Ut

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Huynh Quang Chau

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Nguyen Thi Minh Phuong

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Nguyen Van Bi

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Nguyen Van Thanh

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Bui Thi Truc Phuong

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

100

Institution

Position

Name

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Phung Thi Thoa

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Dam Thi Ngoc Linh

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Nguyen Thi Phuong

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue Secondary school

Le Thi Suong

Thuan Bac district, Bac Phong Commune, My Nhon village

Le Thi Tuyet Nga

Thuan Bac district, Bac Phong Commune, My Nhon village

Cao Thi Bich Thuy

Thuan Bac district, Bac Phong Commune, My Nhon village

Bui Thi My Dung

Thuan Bac district, Bac Phong Commune, My Nhon village

Nguyen Thi Mai

Thuan Bac district, Bac Phong Commune, My Nhon village

Nguyen Van Nghi

Thuan Bac district, Bac Phong Commune, Go San village

Damg Thi Gai

Thuan Bac district, Bac Phong Commune, Go San village

Duong Thi Vuong

Thuan Bac district, Bac Phong Commune, Ba Thap village

Nguyen Thi Bo

Thuan Bac district, Bac Phong Commune, Ba Thap village

Nguyen Thanh Tai

Thuan Bac district, Bac Phong Commune, Ba Thap village

Duong Thi Truyen

Thuan Bac district, Bac Phong Commune, Ba Thap village

Phan Thanh Tu

Bac Ai district, Phuoc Thanh Commune, Ba Cai village

Kator Luong

Bac Ai district, Phuoc Thanh Commune, Mala village

Chamalea Thi Thua

Bac Ai district, Phuoc Thanh Commune, Maro village

Chamalea Thi Thuy

Bac Ai district, Phuoc Thanh Commune, Maro village

Kadha Thi Uong

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Bac Ai district, Phuoc Thanh Commune, Madu village

Chamalea Thi Hom

Bac Ai district, Phuoc Thanh Commune, Maro village

Chamalea Thi Thuy

Bac Ai district, Phuoc Thanh Commune, Dacai village

Pi nang thi Minh

Bac Ai district, Phuoc Thanh Commune, Madu village

Chamalea Thi Them

Bac Ai district, Phuoc Thanh Commune, Suoi Lu village

Kator Thi Huan

Bac Ai district, Phuoc Thanh Commune, Mari village

Chamalea Long

Children Bac Ai district, Phuoc Thanh Commune

9 children of 7-15 years old

Bac Ai district, Phuoc Thanh Commune, Nguyen Hue school

23 children of grade 6-8th

Thuan Bac district, Bac Phong Commune

7 children of 6-15 years old

Thuan Bac district, Bac Phong Commune

20 children of grade 6-8th

Ho Chi Minh city Department of Information and Communication

Trần Minh Nguyệt

Department of Justice

Nguyễn Thị Thư

Department of Planning and Investment

Lưu Quốc Cường

Department of Finance

Nguyễn Kim Thu

DOLISA/ Division of Gender Equality

Nguyễn Hiệp Trí

DOLISA/Division of Children Protection and Care

Nguyễn Thành Phụng

DOLISA/Division of Children Protection and Care

Nguyễn Văn Tính

DOLISA/Division of Children Protection and Care

Huỳnh Minh Phúc

DOLISA/Division of Children Protection and Care

Vũ Thị Ánh Hồng

Department of Health

Huỳnh Ngọc Thành

Department of Culture, Sports and Tourism

Phạm Hiền Thông

Department of Culture, Sports and Tourism

Thai Hoang Ngoc

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

101

Institution

Position

Name

Department of Education and Training

Nguyễn Tài Dũng

Center for Social Work with children

Nguyễn THị Thùy Dương

Binh Thanh District Division of Labour, Invalids and Social Affairs

Huỳnh Ngọc Phương Thanh

12 District Division of Labour, Invalids and Social Affairs

Võ Thị Đồng Giao

Nhà Bè District Division of Labour, Invalids and Social Affairs

Võ Thị Yến

Cần Giờ District Division of Labour, Invalids and Social Affairs

Hồ Thị Tuyết Trang

Former Deputy Chairwomen of the People’s Council, Ho Chi Minh city

Phạm Phương Thảo

Thảo Đàn Center for Social Protection

Lê Thị Thu Thủy

Center for Support Development Initiatives

Lâm Ngọc Thúy

WWO

Nguyễn Thị Kim Phụng

LIN Center

Phạm Trường Sơn

Association for Chldren Protection in Ho Chi Minh city

Nguyễn Ngọc Phúc

Association for Chldren Protection in Ho Chi Minh city

Mai Thị Hoa

Sài Gòn Chairity Foundation

Triệu Thị Ánh Nguyệt

Việt Nam Network for people living with autism

Phạm Thị Kim Tâm Huỳnh Kim Tiên

102

Partage

Võ Chiêu Hoàng

Center for Social Work

Nguyễn Ngọc Phúc

Long Hoa Children Center, District No.7

Hồ Nhật Quang

Long Hoa Children Center, District No.7

Thích Thiện Hạnh

Long Hoa Children Center, District No.7

Thích Tâm Tài

Long Hoa Children Center, District No.7

Thích Nhuận Hoa

Long Hoa Children Center, District No.7

Nguyễn Thị Năm

Long Hoa Children Center, District No.7

Võ Thị Sáu

Long Hoa Children Center, District No.7

Ngô Thị Hạnh

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Institution

Position

Name

Long Hoa Children Center, District No.7

Đỗ Thị Hải

Long Hoa Children Center, District No.7

Nguyễn Thị Phượng

Long Hoa Children Center, District No.7

Lê Kim Anh

Long Hoa Children Center, District No.7

Nguyễn Thị Nhàn

Phu My Ward People’s Committee, District No. 7.

Lê Thị Ngọc

Phu My Ward People’s Committee, District No. 7.

Lưu Thị Kim Thu

Phu My Ward People’s Committee, District No. 7.

Nguyễn Thị Ngọc Hạnh

Phu My Ward People’s Committee, District No. 7.

Nguyễn Đăng Khoa

Phu My Ward People’s Committee, District No. 7.

Trần Kim Phượng

Phu My Ward People’s Committee, District No. 7.

Nguyễn Thi Lan Hương

Phu My Ward People’s Committee, District No. 7.

Trần Thị Thanh Thảo

Phu My Ward People’s Committee, District No. 7.

Nguyễn Thị Mạnh Hòa

Bạch Đằng Secondary School

Trần Thanh Trúc

Bạch Đằng Secondary School

Tạ Tấn Tài

Bạch Đằng Secondary School

Trần Tuấn Anh

Bạch Đằng Secondary School

Nguyễn Thế Hạnh

Bạch Đằng Secondary School

Nguyễn Thị Nhu

Bạch Đằng Secondary School

Nguyễn Thị Mỹ Lệ

Bạch Đằng Secondary School

Vũ Hoàng Phương Uyên

Bạch Đằng Secondary School

Đỗ Thị Hồng Diễm

Bạch Đằng Secondary School

Đặng Đức Hùng

Bạch Đằng Secondary School

Phạm Thị Ngọc Hạnh

Bạch Đằng Secondary School

Phan Huy

Ward 14, District 3

Nguyễn Minh Nguyêt

Ward 14, District 3

Nguyễn Thanh Thúy Thành

Ward 14, District 3

Lê Thị Hòa

Ward 14, District 3

Phạm Văn Cư

Ward 14, District 3

Biên Thị Nở

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

103

104

Institution

Position

Name

Ward 14, District 3

Ngô Thị Xuân Mai

Ward 14, District 3

Hoàng Xuân Thảo

Ward 14, District 3

Lê Thị BÍch

Ward 14, District 3

Lê Thúy Diễm

Ward 14, District 3

Trần Thị Chính

Ward 14, District 3

Mai Ngọc Bích

Ward 14, District 3

Lê Thị Muôn

Ward 14, District 3

Trang Thị Thanh

Ward 14, District 3

Phan Thị Âu

Ward 14, District 3

PHạm Thị Ngọc Giàu

Ward 14, District 3

Nguyễn Thị Nhung

Ward 14, District 3

Hồ Thị Kim Ánh

Ward 14, District 3

Nguyễn Trọng TÍn

Cơ sở nuôi dưỡng trẻ em Long Hoa, Quận 7

25 children from 12 - 15

Trường THCS Bạch Đằng

25children from 12 – 15

Phường Phú Mỹ, Quận 7

12 children from 6 to 14

Phường 14, Quận 3.

9 children from 8-14

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

Annex 7 – CRC Committee General Comment No. 2 (2002)

CRC

UNITED NATIONS

Convention on the Rights of the Child

Distr. GENERAL CRC/GC/2002/2 15 November 2002 Original: ENGLISH

COMMITTEE ON THE RIGHTS OF THE CHILD Thirty-second session 13-31 January 2003

GENERAL COMMENT No. 2 (2002) The role of independent national human rights institutions in the promotion and protection of the rights of the child

Article 4 of the Convention on the Rights of the Child obliges States parties to “undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention”. Independent national human rights institutions (NHRIs) are an important mechanism to promote and ensure the implementation of the Convention, and the Committee on the Rights of the Child considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights. In this regard, the Committee has welcomed the establishment of NHRIs and children’s ombudspersons/children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties. The Committee issues this general comment in order to encourage States parties to establish an independent institution for the promotion and monitoring of implementation of the Convention and to support them in this regard by elaborating the essential elements of such institutions and the activities which should be carried out by them. Where such institutions have already been established, the Committee calls upon States to review their status and effectiveness for promoting and protecting children’s rights, as enshrined in the Convention on the Rights of the Child and other relevant international instruments. The World Conference on Human Rights, held in 1993, in the Vienna Declaration and Programme of Action reaffirmed “… the important and constructive role played by national institutions for the promotion and protection of human rights”, and encouraged “… the establishment and strengthening of national institutions”. The General Assembly and the

Feasibility study for the establishment of an independent child rights monitoring mechanism in Viet Nam

105

GE.02-45736 (E) 061202 Commission on Human Rights have repeatedly called for the establishment of national human rights institutions, underlining the important role NHRIs play in promoting and protecting human rights and enhancing public awareness of those rights. In its general guidelines for periodic reports, the Committee requires that States parties furnish information on “any independent body established to promote and protect the rights of the child …”1, hence, it consistently addresses this issue during its dialogue with States parties. NHRIs should be established in compliance with the Principles relating to the status of national institutions for the promotion and protection of human rights (The “Paris Principles”) adopted by the General Assembly in 19932 transmitted by the Commission on Human Rights in 1992.3 These minimum standards provide guidance for the establishment, competence, responsibilities, composition, including pluralism, independence, methods of operation, and quasi-judicial activities of such national bodies. While adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children’s developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited. Specialist independent human rights institutions for children, ombudspersons or commissioners for children’s rights have been established in a growing number of States parties. Where resources are limited, consideration must be given to ensuring that the available resources are used most effectively for the promotion and protection of everyone’s human rights, including children’s, and in this context development of a broad-based NHRI that includes a specific focus on children is likely to constitute the best approach. A broad-based NHRI should include within its structure either an identifiable commissioner specifically responsible for children’s rights, or a specific section or division responsible for children’s rights. It is the view of the Committee that every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. The Committee’s principal concern is that the institution, whatever its form, should be able, independently and effectively, to monitor, promote and protect children’s rights. It is essential that promotion and protection of children’s rights is “mainstreamed” and that all human rights institutions existing in a country work closely together to this end. Mandate and powers NHRIs should, if possible, be constitutionally entrenched and must at least be legislatively mandated. It is the view of the Committee that their mandate should include as broad a scope as possible for promoting and protecting human rights, incorporating the Convention on the Rights of the Child, its Optional Protocols and other relevant international human rights instruments - thus effectively covering children’s human rights, in particular their civil, political, economic, social and cultural rights. The legislation should include provisions setting out specific functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its Optional Protocols. If the NHRI was established before the existence of the Convention, or without expressly incorporating it, necessary arrangements, including the enactment or amendment of legislation, should be put in place so as to ensure conformity of the institution’s mandate with the principles and provisions of the Convention. NHRIs should be accorded such powers as are necessary to enable them to discharge their mandate effectively, including the power to hear any person and obtain any information and document necessary for assessing the situations falling within their competence. These powers should include the promotion and protection of the rights of all children under the jurisdiction of the State party in relation not only to the State but to all relevant public and private entities. Establishment process

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The NHRI establishment process should be consultative, inclusive and transparent, initiated and supported at the highest levels of Government and inclusive of all relevant elements of the State, the legislature and civil society. In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding (including specifically for children’s rights, within broad-based institutions), staff, premises, and freedom from forms of financial control that might affect their independence. Resources While the Committee acknowledges that this is a very sensitive issue and that State parties function with varying levels of economic resources, the Committee believes that it is the duty of States to make reasonable financial provision for the operation of national human rights institutions in light of article 4 of the Convention. The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers. Pluralistic representation NHRIs should ensure that their composition includes pluralistic representation of the various elements of civil society involved in the promotion and protection of human rights. They should seek to involve, among others, the following: human rights, anti-discrimination and children’s rights non-Governmental organizations (NGOs), including child- and youth-led organizations; trade unions; social and professional organizations (of doctors, lawyers, journalists, scientists, etc.); universities and experts, including children’s rights experts. Government departments should be involved in an advisory capacity only. NHRIs should have appropriate and transparent appointment procedures, including an open and competitive selection process. Providing remedies for breaches of children’s rights NHRIs must have the power to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by children. In order to be able to effectively carry out such investigations, they must have the powers to compel and question witnesses, access relevant documentary evidence and access places of detention. They also have a duty to seek to ensure that children have effective remedies - independent advice, advocacy and complaints procedures - for any breaches of their rights. Where appropriate, NHRIs should undertake mediation and conciliation of complaints. NHRIs should have the power to support children taking cases to court, including the power (a) to take cases concerning children’s issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the human rights issues involved in the case. Accessibility and participation NHRIs should be geographically and physically accessible to all children. In the spirit of article 2 of the Convention, they should proactively reach out to all groups of children, in particular the most vulnerable and disadvantaged, such as (but not limited to) children in care or detention, children from minority and indigenous groups, children with disabilities, children living in poverty, refugee and migrant children, street children and children with special needs in areas such as culture, language, health and education. NHRI legislation should include the right of the institution to have access in conditions of privacy to children in all forms of alternative care and to all institutions that include children. NHRIs have a key role to play in promoting respect for the views of children in all matters affecting them, as articulated in article 12 of the Convention, by Government and throughout society. This general principle should be applied to the establishment, organization and activities of national human rights institutions. Institutions must ensure that they have direct contact with children and that children are appropriately involved and consulted. Children’s councils, for example, could be created as advisory bodies for NHRIs to facilitate the participation of children in matters of concern to them. NHRIs should devise specially tailored consultation programmes and imaginative communication strategies

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to ensure full compliance with article 12 of the Convention. A range of suitable ways in which children can communicate with the institution should be established. NHRIs must have the right to report directly, independently and separately on the state of children’s rights to the public and to parliamentary bodies. In this respect, States parties must ensure that an annual debate is held in Parliament to provide parliamentarians with an opportunity to discuss the work of the NHRI in respect of children’s rights and the State’s compliance with the Convention. Recommended activities The following is an indicative, but not exhaustive, list of the types of activities which NHRIs should carry out in relation to the implementation of children’s rights in light of the general principles of the Convention. They should: (a) Undertake investigations into any situation of violation of children’s rights, on complaint or on their own initiative, within the scope of their mandate; (b) Conduct inquiries on matters relating to children’s rights; (c) Prepare and publicize opinions, recommendations and reports, either at the request of national authorities or on their own initiative, on any matter relating to the promotion and protection of children’s rights; (d) Keep under review the adequacy and effectiveness of law and practice relating to the protection of children’s rights; (e) Promote harmonization of national legislation, regulations and practices with the Convention on the Rights of the Child, its Optional Protocols and other international human rights instruments relevant to children’s rights and promote their effective implementation, including through the provision of advice to public and private bodies in construing and applying the Convention; (f )

Ensure that national economic policy makers take children’s rights into account in setting and evaluating national economic and development plans;

(g) Review and report on the Government’s implementation and monitoring of the state of children’s rights, seeking to ensure that statistics are appropriately disaggregated and other information collected on a regular basis in order to determine what must be done to realize children’s rights; (h) Encourage ratification of or accession to any relevant international human rights instruments; (i)

In accordance with article 3 of the Convention requiring that the best interests of children should be a primary consideration in all actions concerning them, ensure that the impact of laws and policies on children is carefully considered from development to implementation and beyond;

(j)

In light of article 12, ensure that the views of children are expressed and heard on matters concerning their human rights and in defining issues relating to their rights;

(k) Advocate for and facilitate meaningful participation by children’s rights NGOs, including organizations comprised of children themselves, in the development of domestic legislation and international instruments on issues affecting children; (l)

Promote public understanding and awareness of the importance of children’s rights and, for this purpose, work closely with the media and undertake or sponsor research and educational activities in the field;

(m) In accordance with article 42 of the Convention which obligates State parties to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and

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children alike”, sensitize the Government, public agencies and the general public to the provisions of the Convention and monitor ways in which the State is meeting its obligations in this regard; (n) Assist in the formulation of programmes for the teaching of, research into and integration of children’s rights in the curricula of schools and universities and in professional circles; (o) Undertake human rights education which specifically focuses on children (in addition to promoting general public understanding about the importance of children’s rights); (p) Take legal proceedings to vindicate children’s rights in the State or provide legal assistance to children; (q) Engage in mediation or conciliation processes before taking cases to court, where appropriate; (r)

Provide expertise in children’s rights to the courts, in suitable cases as amicus curiae or intervenor;

(s)

In accordance with article 3 of the Convention which obliges States parties to “ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”, undertake visits to juvenile homes (and all places where children are detained for reform or punishment) and care institutions to report on the situation and to make recommendations for improvement;

(t)

Undertake such other activities as are incidental to the above.

Reporting to the Committee on the Rights of the Child and cooperation between NHRIs and United Nations agencies and human rights mechanisms NHRIs should contribute independently to the reporting process under the Convention and other relevant international instruments and monitor the integrity of Government reports to international treaty bodies with respect to children’s rights, including through dialogue with the Committee on the Rights of the Child at its pre-sessional working group and with other relevant treaty bodies. The Committee requests that States parties include detailed information on the legislative basis and mandate and principal relevant activities of NHRIs in their reports to the Committee. It is appropriate for States parties to consult with independent human rights institutions during the preparation of reports to the Committee. However, States parties must respect the independence of these bodies and their independent role in providing information to the Committee. It is not appropriate to delegate to NHRIs the drafting of reports or to include them in the Government delegation when reports are examined by the Committee. NHRIs should also cooperate with the special procedures of the Commission on Human Rights, including country and thematic mechanisms, in particular the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Representative of the Secretary-General for Children and Armed Conflict. The United Nations has a long-standing programme of assistance for the establishment and strengthening of national human rights institutions. This programme, which is based in the Office of the High Commissioner for Human Rights (OHCHR), provides technical assistance and facilitates regional and global cooperation and exchanges among national human rights institutions. States parties should avail themselves of this assistance where necessary. The United Nations Children’s Fund (UNICEF) also offers expertise and technical cooperation in this area. As articulated in article 45 of the Convention, the Committee may also transmit, as it considers appropriate, to any specialized United Nations agency, OHCHR and any other competent body any reports from States parties that contain a request or indicate a need for technical advice or assistance in the establishment of NHRIs.

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NHRIs and States parties The State ratifies the Convention on the Rights of the Child and takes on obligations to implement it fully. The role of NHRIs is to monitor independently the State’s compliance and progress towards implementation and to do all it can to ensure full respect for children’s rights. While this may require the institution to develop projects to enhance the promotion and protection of children’s rights, it should not lead to the Government delegating its monitoring obligations to the national institution. It is essential that institutions remain entirely free to set their own agenda and determine their own activities. NHRIs and NGOs Non-Governmental organizations play a vital role in promoting human rights and children’s rights. The role of NHRIs, with their legislative base and specific powers, is complementary. It is essential that institutions work closely with NGOs and that Governments respect the independence of both NHRIs and NGOs. Regional and international cooperation Regional and international processes and mechanisms can strengthen and consolidate NHRIs through shared experience and skills, as NHRIs share common problems in the promotion and protection of human rights in their respective countries. In this respect, NHRIs should consult and cooperate with relevant national, regional and international bodies and institutions on children’s rights issues. Children’s human rights issues are not constrained by national borders and it has become increasingly necessary to devise appropriate regional and international responses to a variety of child rights issues (including, but not limited to, the trafficking of women and children, child pornography, child soldiers, child labour, child abuse, refugee and migrant children, etc.). International and regional mechanisms and exchanges are encouraged, as they provide NHRIs with an opportunity to learn from each other’s experience, collectively strengthen each other’s positions and contribute to resolving human rights problems affecting both countries and regions.

Notes 1 General guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention (CRC/C/58), para. 18. 2 Principles relating to the status of national institutions for the promotion and protection of human rights (The “Paris Principles”), General Assembly resolution 48/134 of 20 December 1993, annex. 3 Commission on Human Rights resolution 1992/54 of 3 March 1992, annex.

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