The Role of National Human Rights Institutions
When the UDHR1 was adopted in 1948 the main actors on the international human rights stage were states, with other players getting only brief mention in the preamble.2 Contrast the recognition in 1993 at the Vienna World Conference to ‘the important and constructive role played by national institutions for the promotion and protection of Human Rights’ and the need for states to establish them,3 and then, later, to the direct reference by the United Nations (UN) High Commissioner for Human Rights to National Human Rights Institutions (NHRIs) as part of the 60th anniversary of the UDHR and their role in prevention of torture.4 Statements such as those from the UN Secretary-General in March 2008 that ‘NHRIs compliant with the Paris Principles are key elements of strong and effective national human rights protection systems. They can also be important partners in the international human rights system, especially through the Human Rights Council, the human rights treaty bodies and special procedures mandate holders’,5 reflect the significant role that NHRIs are perceived now to play in the human rights field.
We are now at a position where NHRIs occupy as important a position as states, NGOs and international bodies, in drafting treaties and other international documents, having separate standing before the UN and regional bodies, submitting amicus briefs before regional human rights courts,6 and forming influential groups at the international and regional levels. Yet, with this recognition comes an understanding of the unique and powerful position these types of bodies hold and a need to consider more their accountability and separate status from governments and civil society. While their position as actors appears to have been clearly established on the international plane, there are still many unanswered questions about who exactly should be permitted to be involved and whether the checks and balances in place at present are sufficient. This chapter will examine the place now occupied by NHRIs in the international human rights arena, and focus on three emerging themes that are important to consider in relation to their future role.
2. What Are National Human Rights Institutions?
The term ‘national human rights institution’ (NHRI) has been defined as ‘a body which is established by a government under the constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights’.7 It can refer to a number of different institutions: human rights commissions or commissioners, ombudspersons or hybrid bodies, although ombudspersons are only properly being considered under this heading more recently.8 The Paris Principles, adopted in 1993 by the UN General Assembly,9 are seen as the checklist against which these types of bodies are assessed. These principles refer to the need for the institution to be independent, that members be appointed through an appropriate process, and that the institution have independent funding and a stable mandate. A NHRI should also have ‘as broad a mandate as possible’ and have a range of responsibilities including advising government and other bodies, making recommendations on existing or proposed legislation, preparing reports on violations, encouraging ratification of international instruments, contributing to reports submitted to the UN or other bodies, cooperating with international bodies, and promoting, educating and publicizing on human rights issues.
The Paris Principles, despite being a non-binding UN General Assembly Resolution, are now the benchmark applied to the variety of bodies at the national, regional and international levels, almost to the extent that, despite their being soft law, compliance with them is determinative of a range of rights and privileges then accorded to that institution. Yet, there is now a growing body of evidence and research which finds that compliance with the Paris Principles alone will not guarantee an effective or even independent institution and that what is needed is a more nuanced and sophisticated approach to an evaluation of the role of a NHRI.10 These include the need to examine the broader context in which they exist, the extent to which they use their powers and resources appropriately and to the full, how they are perceived by others, and their credibility and legitimacy.11 But the international system has still to catch up. UN and regional bodies are continuing to propound the idea that all states should establish a human rights commission12 and that as long as the Paris Principles are complied with, this is sufficient to ensure an independent, effective and appropriate body.
The role of NHRIs is an interesting one, as their potential contribution comes from the fact that they are neither governmental, nor non-governmental bodies.13 In reality, they sit in the uneasy ground between what are often seen as opposing factions in the human rights arena, with some erring more on the government side, some towards the NGOs. The need for them to have a clearly defined role that separates them from, on the one hand, the governments they were supposed to be watching and, on the other, the non-statutory and constitutional bodies, has gained increasing importance as NHRIs have sought to affirm their status at national and international fora.
NHRIs have formed a range of groupings, some of which have become increasingly important and influential. At the level of the UN, NHRIs meet under the International Coordinating Committee (ICC) of NHRIs, a forum representing their interests. Article 5 of its statute states that the role of the ICC is ‘an international association of NHRIs which promotes and strengthens NHRIs to be in accordance with the Paris Principles and provides leadership in the promotion and protection of human rights’. The ICC was established in 1994 and since then has gained more credibility and status. It is now supported by a secretariat at the UN Office of the High Commissioner for Human Rights (OHCHR) and the National Institutions Unit, and through its work and presence and the recognition of the Unit, it has developed a profile for these institutions throughout the UN structures. It has recently registered itself as a non-governmental entity in Geneva under Swiss law.14 Its tasks include coordinating NHRI activities with the UN bodies, collaborating with NHRIs, and providing communication and information sharing among them as well as good practice.15 Yet, it also has a role expressly provided in its statute now to ‘promote the establishment and strengthening of NHRIs in conformity with the Paris Principles’, through processes of accreditation, by providing assistance and training.16 The ICC also now has a presence in Geneva, which, it is hoped, will facilitate the relationship between the ICC and UN bodies.
NHRIs have also grouped themselves together both under the regional groupings of the ICC and in other fora, some of which are more active than others. The Asia-Pacific Forum on National Human Rights Institutions is the most prominent and visible of these regional groupings, with a secretariat based in Sydney, Australia. It has spearheaded a significant amount of work on NHRIs including, more recently, on the UN Convention on Disabilities17 and has assisted in pushing forward the role of NHRIs on a formal basis at the international level. The Coordinating Committee of African National Human Rights Institutions has been less active, although it does have a secretariat, based in Kenya, and its meetings have produced some important declarations.18 An additional network of West African NHRIs has also been created.19 For the Americas, there is a Network of National Human Rights Institutions for the Americas and networks of ombudsmen,20 and, in Europe, a European Coordinating Committee of NHRIs and European Group of National Human Rights Institutions have also held a number of events including various roundtables.
It is through these various groupings, in particular the ICC, that NHRIs have managed to use their collective weight to give themselves greater formal recognition and a status separate from those of governments and NGOs. While NHRIs used to sit with governments or NGOs at UN committee meetings and in other sessions, with the changes brought about by the work of the ICC, as will be described below, NHRIs now have a separate standing and are able to participate in their own right, with specific seating at these international and regional meetings.
Regionally, the African Commission on Human and Peoples’ Rights has recognized NHRIs with its creation of the category of ‘affiliated status’ open to application by NHRIs who comply with the Paris Principles.21 Applications are assessed by commissioners in open forum, and NHRIs have to provide paperwork including the legislative documents establishing them, a financial statement, and a recent activity report and its composition.22 In return, they may participate in the sessions of the commission and make statements, and they are obliged to submit reports every two years on their activities in this regard. Although this sounds like a relatively sophisticated approach on paper, and over 20 NHRIs have made use of this affiliated status category, in reality few actually participate in the African Commission’s sessions or attend its meetings. The Commission in turn has not felt it necessary to challenge those who have such status to engage more fully with it, and it has never held NHRIs to account for their total failure to submit any reports. As a result, although the potential for its use is there, at this stage the African Commission cannot be said to have contributed a great deal to the debate at the African level.
The Asia-Pacific Forum (APF), operating in a region which does not have a human rights treaty, has spent considerable time in developing its approach to membership. There are three categories of membership: full, candidate and associate.23 Full members are those that are deemed by the Forum Council to comply with the Paris Principles. As the ICC develops its more robust approach to accreditation, however, the APF is bringing its approach more in line with that of the ICC.
Given the increased recognition of NHRIs, a number of challenges and issues have also arisen.
Because of the unique position NHRIs occupy, being neither government nor NGO, but a possible additional voice in international and regional fora, over the years greater attention has been paid to the need to accredit or assess these NHRIs against some form of benchmark. The Paris Principles have been used as the criteria against which these institutions are assessed in order to determine the level of their involvement in international bodies in particular, but also at the regional level. The ICC set up a Sub-Committee on Accreditation, whose task is to assess applications from NHRIs. It is composed of one NHRI from each of four regions: Europe, Africa, Americas and Asia-Pacific.24 With the replacement of the Human Rights Commission by the Human Rights Council and the general process of reform in the UN, the ICC used the opportunity of change to assert the role of NHRIs and ensure their formal recognition before the UN Human Rights Council and many of the treaty bodies.25 Over recent years, there have been a number of changes made to the way in which NHRIs are accredited26 with the aim of ensuring ‘transparency, rigour and independence’.27
An NHRI applying for accreditation must produce a number of written documents including the legislation or document by which the NHRI was established, its organizational structure, staff and budget, a copy of its recent annual report, and ‘a detailed statement showing that the organization complies with the Paris Principles’.28 This statement of compliance covers a range of issues including its pluralist representation, the manner in which its members are appointed, its relationship with civil society and others including UN bodies, its working methods, and how it is accessible. The National Institutions Unit of the OHCHR, acting as the secretariat to the ICC, will receive this documentation, and it is also now permitted to seek information from civil society and other actors, including OHCHR field missions, to give alternative views on the compliance of the NHRIs with the Paris Principles. The National Institutions Unit produces a summary document which is presented to the Sub-Committee on Accreditation, and the NHRI is given the opportunity to comment on its contents. This has introduced a more objective analysis into the process of accreditation compared to previously when it was only information submitted by the NHRI itself that was taken into account in the accreditation process.
Two categories of accreditation can be granted: (A) compliance with the Paris Principles; (B) observer status – not fully in compliance with the Paris Principles or insufficient information provided to make a determination.29 Each NHRI is now reviewed every 5 years or when necessary if there is a change of circumstances.
The ICC managed to attain the position before the former UN Human Rights Commission whereby ‘national institutions that are accredited by the Accreditation Subcommittee of the International Coordinating Committee … under the auspices of the UN Office of the High Commissioner, and coordinating committees of such institutions, are permitted ‘to speak … within their mandates, under all items of the Commission’s agenda … to allocate dedicated seating to national institutions for this purpose…’.30 In adopting the approach that ‘participation of and consultation with observers, including … national human rights institutions … shall be based on arrangements and practices observed by the Commission on Human Rights’,31 NHRIs have now consolidated this standing before the Human Rights Council on the basis that ‘accreditation of national institutions in international forums could be commensurate with the institution’s accreditation to the ICC’.32
Now only those NHRIs who have category ‘A’ accreditation can address the Human Rights Council, and it is apparent that the UN treaty bodies and others take the accreditation very seriously.33 Indeed, as a result of the changes to the accreditation process, a number of NHRIs have been downgraded from category A to B status.34