What is a national human rights institution?

What is a national human rights institution?

By Morten Kjærum

In 1991 the First International Workshop on National Institutions for the Promotion and Protection of Human Rights was held in Paris. The outcome of this workshop was a set of principles guiding the work and structure of national institutions. These guidelines were endorsed by the UN Commission on Human Rights the following year and adopted by the UN General Assembly in December 1993. However, the idea of establishing national institutions can be traced back to the second session of the UN Economic and Social Council in 1946 where it was decided to invite member states to “consider the desirability” of establishing local bodies in the form of “information groups or local human rights committees” to function as vehicles for collaboration with the UN Commission on Human Rights.

In the period between 1946 and 1991 the issue of creating mechanisms to implement the increasing volume of new human rights instruments was raised at seminars, in UN bodies such as the Commission on Human Rights, and in the General Assembly. It is also recommended in legal texts such as, for example, in article 14 of the Convention on the Elimination of all Forms of Racial Discrimination (ICERD). During this period the profile of the institution was not clear as it ranged from being a service organ for the UN Commission on Human Rights in the ECOSOC resolution, to a specialized body dealing with complaints about racial discrimination under the ICERD. Moreover, some texts9 even embrace institutions remotely concerned with human rights. Given the above circumstances, a clarification of the specific structure and mandate of these institutions was called for.
 
The clarification came with the formulation of the so-called Paris Principles in 1991. The Principles establish in particular the competence and responsibilities of a national institution as well as its composition and guarantees of independence and pluralism. According to the Principles the institution shall be given as broad a mandate as possible in order for it to be able to promote and protect human rights. This implies that institutions with a singular human rights mandate will normally not be categorized as a national institution but rather as a specialized institution, e.g., ombudsman against ethnic discrimination, institutions dealing with human rights issues related to disabled persons, children or other groups. However, the International Coordination Committee of National Institutions (ICC) has recognized that a group of specialized institutions can collectively be recognized as a national institution since they jointly cover a broad range of key human rights issues. Further to the scope of the mandate, nothing in the Paris Principles rules out that a national institution can deal with human rights related international issues and the foreign policy of its respective country. However, without the domestic dimension the institution would not qualify as a national institution. This is relevant for many European institutions since they have traditionally mainly perceived their role as one of addressing human rights issues abroad, or in international bodies rather than domestically.

The Paris Principles list a number of responsibilities for national institutions, which fall under five headings.

First, the institution shall monitor any situation of violation of human rights, which it decides to take up. In order to carry out this function the institution needs sufficient staff to follow developments in any part of the country, and it must furthermore not be limited in its access to any NGO, group or individual, which may be threatened or possess knowledge about violations.

Second, the institution shall be able to advise the Government, the Parliament and any other competent body on specific violations, on issues related to legislation and its compliance with international human rights instruments, and on the implementation of these instruments. Thus, some channels of communication should be established, formally or informally between the institution and the relevant state organs. It would hamper the work of the institution if the primary channel of communication would be via the media.

Third, the institution shall relate to regional and international organizations. The Government shall be encouraged by the national institution to ratify human rights instruments, and the institution shall contribute to the reports which States are required to submit to regional and international institutions or committees. The cooperation with regional and international bodies shall be broadly based and be without specific limitations.

Fourth, the institution shall have a mandate to educate and inform in the field of human rights. It shall assist in the formulation of educational human rights programmes and in human rights research, and take part in their implementation at schools, universities and in professional circles. Finally, the institution shall be able to prepare and publicize reports on any human rights matter and make use of all press organs. The Paris Principles underscore in particular the important role that national institutions can play in relation to combating all forms of discrimination, in particular racial discrimination, by raising public awareness.

Fifth, some institutions are given a quasi-judicial competence. Whereas an institution can hardly be recognized as fulfilling the Paris Principles if one of the first four elements is left out of its mandate, it is facultative to give it the mandate to hear and consider individual complaints and petitions. Notwithstanding the latter, the development in this area is moving towards more institutions having this mandate as well.

The key elements of the composition of a national institution are its independence and pluralism. In relation to the independence the only guidance in the Paris Principles is that the appointment of commissioners or other kinds of key personnel shall be given effect by an official Act, establishing the specific duration of the mandate, which may be renewable. In the UN Handbook on National Human Rights Institutions these criteria are further elaborated to contain elements such as nationality, profession and qualifications, which persons are entitled to dismiss members and for what reasons, privileges and immunities. Furthermore, a principle of continuation is developing in practice, stipulating that there shall be a continuation of the individuals manning the institution, aimed at situations where the law governing an institution is changed without bringing about any obvious improvements. This serves to prevent a government from being able to silence an institution by changing the law and then manning the institution with individuals with more pro-government views. Looking at the existing institutions there are a variety of ways to ensure the independence of the institution, often following local legal traditions for that kind of administrative bodies or courts.

An often-neglected element in relation to the independence of national institutions is the regional and international networks and structures. These networks may help mobilize an international reaction and thereby provide a de facto safety net against unfriendly governmental attacks on an institution. Viewed in this way these regional and international networks should be perceived as an element in establishing the independence of a national institution.

One of the ways in which national institutions differ from traditional ombudsman institutions is in relation to the pluralist representation in the governing structures. The appointment procedures shall ensure pluralist representation of the social forces involved in the promotion and protection of human rights. The Paris Principles specifically point to the representation of NGOs, trends in philosophical or religious thought, universities and qualified experts, parliament and government departments. If government departments are represented they should participate in the deliberations in an advisory capacity only. The pluralist representation ensures input from different sectors in society and thus offers an opportunity for the institution to detect possible human rights violations as well as different perspectives offer an opportunity to broaden the inventiveness in responding to the violations. Furthermore, it provides channels for information and education to specific target groups. If the pluralist composition is not taken seriously, a national institution runs the risk of being self-contained in a narrow circle of like-minded persons from the urban and academic elite. Thus, neglecting issues related to, for example, rural areas, minority groups or certain sectors.

These basic principles for national institutions constitute the international normative platform for a variety of institutions. The diversity in the composition and mandate of the institutions underlines the different legal traditions in the world. Nonetheless, the existing recognized institutions can be categorized in five different groups. The French Human Rights Commission, which is the oldest from 1948, is a good example of a consultative commission. It is a broad-based commission with a membership consisting of key NGOs, the academia, representatives from different religious communities and others
– all together 119 institutions and individuals. The members take an active part in the decisions of the Commission. The Commission does not deal with individual complaints. This type of institution is found in Greece and in a number of francophone African countries, including Morocco.

Commissions with judicial competence are seen in a number of common law countries, for example, India, Ireland as well as in South Africa. However, the model has also been a source of inspiration in countries such as Latvia and Nepal. These institutions have a number of full-time or part-time commissioners appointed according to different criteria. An important function is the handling of individual complaints about human rights violations. In some countries the mandate of this type of institution is expanded to cover the mandate of a traditional ombudsman as well and it thereby becomes a commission with judicial and ombudsman competence. This is the case in Ghana, Mexico, Mongolia and Tanzania.

National human rights centres have developed in Northern Europe, e.g., Denmark, Germany and Norway, the oldest of which is the Danish Centre for Human Rights established in 1987. In many ways this type of institution resembles the consultative commission with the broad membership base. However, the work of the institutions is research-based, and the members play a less active role in the specific work of the institutions as they mainly serve to give policy directions to the management. In general, institutions of this nature do not deal with individual complaints.

Finally, in the gray zone a number of human rights ombudsmen have obtained formal status as national institutions. As mentioned above this has, e.g., been the case in Sweden where specialized ombudsmen have been recognized collectively. Moreover, ombudsman institutions in Latin America and in some Eastern and Central European countries often have such a strong human rights mandate that they have been recognized as national institutions. This is the case despite the fact that these institutions often fall short of the formal institutional input from civil society. Nonetheless many of them have a very dynamic interaction with civil society groups.

With the adoption of the Paris Principles, the profile of the national human rights institutions became more distinct. Occasionally, the issue is raised whether to adjust the Principles following a decade of experience. However, since they have so far proven to serve their purpose as a common frame of reference in establishing these institutions, such a process of revision may be premature and only serve to open Pandora’s box. In an historical perspective national institutions are still young and before opening the box it might be advisable to gain more experience on strengths and weaknesses, opportunities and threats.

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