Excerpt
Table of Contents
List of Abbreviations
Abstract
1. Introduction
1.1 Purpose of the thesis
1.2 Scope and method of research
1.3 Outline.
2. National Human Rights Institutions: An Overview
2.1 Development of the concept of NHRIs
2.2 Standards within the Paris Principles
2.2.1 Mandate on the promotion and protection of human rights
2.2.2 Competence, responsibilities, methods of operation
2.2.3 Independence and pluralism
2.3 The accreditation of NHRIs
2.3.1 The International Coordinating Committee of NHRIs
2.3.2 The accreditation process
2.3.3 The function and significance of accreditation
2.4 Distinction from other national actors
2.4.1 Public authorities
2.4.2 National courts
2.4.3 NGOs
3. NHRIs and the international human rights system
3.1 Cooperation with the UN Charter-based Bodies
3.1.1 NHRIs and the Human Rights Council
3.1.2 The role of NHRIs in the UPR
3.1.3 NHRIs and Special Procedures
3.2 Cooperation with the UN Treaty-based Bodies
3.2.1 Implementing human rights
3.2.2 Standard-setting
3.2.3 NHRIs as official national monitoring mechanisms
4. Towards greater cooperation between NHRIs and the UN
4.1 Challenges
4.1.1 Controversial status
4.1.2 Lack of needs and knowledge
4.1.3 Which NHRI may participate?
4.1.4 Lack of consistent regulations
4.2 Explanations
4.2.1 Best practices of NHRIs
4.2.2 Efforts of the UN to strengthen the cooperation
4.2.3 Further engagement opportunities
5. Conclusion
Bibliography
Annex II: Map on accredited NHRIs
List of Abbreviations
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Abstract
National Human Rights Institutions (NHRIs) are cornerstones of strong domestic human rights protection systems. They play a crucial role in the promotion and protection of human rights at the national level. Within their broad mandate, they advise governments on various human rights issues, monitor the implementation of international human rights instruments, promote the harmonisation of national law and practice with the international human rights standards, disseminate human rights information, cooperate with regional and international human rights bodies, and remedy human rights violations. However, National Human Rights Institutions are primarily domestic instruments, they increasingly engage with the international human rights mechanisms. In the last 20 years, they became the practical link between international human rights standards and their concrete application at the national level. The institutions’ interaction with the UN Charter-based and Treaty-based Bodies is a relatively new phenomenon and as such, has its obstacles. In order to clarify the nature and ways of co-operation between NHRIs and the UN human rights monitoring mechanisms, the Master’s thesis sets out the characteristics and role of National Human Rights Institutions in the UN human rights framework. Meanwhile, it is aiming to answer two main questions: what added value does the participation of NHRIs at the international level bring and how should the cooperation between NHRIs and the UN be strengthened in the future.
1. Introduction
Due to the nature of international human rights law, states bear the primary responsibility for the implementation and enforcement of human rights, as they are the carriers of international human rights obligations arising from both customary and treaty law.[1] Article 26 of the Vienna Convention on the Law of Treaties[2] requires states parties to perform binding treaties in good faith. Regarding human rights treaties, this obligation means that states parties must implement treaties in domestic law and integrate international human rights standards into national policies.[3] According to principal human rights instruments, developed by the UN, as a general rule, states are supposed to respect and ensure rights to all individuals.[4] This broad obligation was interpreted by the UN human rights Treaty-based Bodies, which constituted a triangle of human rights obligations of states. According to this, states must respect, protect and fulfil human rights.[5]
In order to make human rights a reality at the national level, the major international human rights instruments impose a duty on states to put in place effective mechanisms for the promotion and protection of human rights.[6] States are free in the choice of means of performing this task, including what organs they entrust with carrying out this activity. Establishing a human rights framework at the national level is not merely a state duty, but powerful domestic institutions can contribute to the ability of states to fulfil their international obligations effectively. Such a strong national human rights protection system requires an independent judiciary, an effective administration of justice, a parliament with human rights committees, active academic and research centres, vivid human rights NGOs, and an independent media.[7] Mertus states that without these national mechanisms, neither the international bodies could have an effect on the national legal orders and practice, as they are dependent on the support of domestic institutions.[8]
National Human Rights Institutions (NHRIs) are important partners for international human rights bodies at the national level, and as such central elements of national protection systems. This type of institution has emerged worldwide in the last 20 years. The Paris Principles[9] developed by the UN in 1993 set standards for the establishment, mandate and functions of the institutions. According to these, they play an important and constructive role for the promotion and protection of human rights, in particular in their advisory capacity to the competent authorities, in remedying human rights violations, in the dissemination of human rights information, and in education in human rights.[10]
In comparison with other national human rights mechanisms, NHRIs are unique in that sense that they form a bridge and constitute a practical connection between the national and international level. They are able to bring international debates into domestic discourse and make them available for the government and the people.[11] Namely, according to the Paris Principles, NHRIs are usually commissioned to promote the ratification of international instruments, assist the government in the implementation of its human rights obligations and advise it on drafting state reports to the UN human rights bodies, as well as ensure the harmonization of national legislation and practices with international human rights standards and cooperate with regional and international human rights bodies, above all with the UN.[12]
The role of NHRIs in connection to the international arena is not only prescribed within the Paris Principles but is recently emphasized by various UN human rights bodies calling upon UN member states to establish NHRIs or encouraging existing institutions to participate in UN activities.[13] The institutions take this notice and increasingly engage in the work of UN human rights monitoring mechanisms, such as the Human Rights Council (HRC), its Universal Periodic Review (UPR), Special Procedures, and the Treaty-based Bodies. However, the legal nature of the working relations between these UN entities and NHRIs is not regulated clearly. This might be explicable by the fact that this phenomenon is relatively new and as such, there has not been evolved any uniform regulation yet, neither regarding the practice of the UN bodies nor the activity of NHRIs. On-going discussions within the UN take place though, for instance, the UN General Assembly (UN GA) welcomed recently the strengthening of the participation rights of Paris Principles-conform NHRIs in the HRC as a result of the review process 2011.[14]
1.1 Purpose of the thesis
The thesis aims to describe the exact position and roles of National Human Rights Institutions in the UN human rights framework. It intends to clarify the nature and ways of cooperation between NHRIs and the different UN human rights monitoring mechanisms. As an analytical paper, it contains a set of best practices and recommendations on the development of the relationship between National Human Rights Institutions and the UN human rights bodies. By establishing one set of applicable rules for strengthen this relationship, the Master’s thesis intends to assist NHRIs and the UN human rights bodies to structure their cooperation with regard to a valid contribution to the better implementation of international human rights instruments at the national level.
1.2 Scope and method of research
The research focused on the theory of NHRIs on the one hand, in order to explore and understand the mission of these national institutions in the international sphere. On the other hand, it concentrated on the prevailing practice regarding the cooperation between NHRIs and the UN bodies so that to identify the challenges of this partnership. The research approach was two-sided: analysing the subject both from NHRI- and UN-perspectives, i.e. exploring what NHRIs are mandated for according to the Paris Principles and what different UN bodies do expect from the member states and their national institutions.
Information were obtained from various written materials, like monographs, edited books, journal articles, official UN documentation, UN collections, conference and academic papers listed in the bibliography, as well as notes of personal observations and interview transcripts.
Arising from the describing and comprising nature of the topic a combination of methods, primarily qualitative research, i.e. documentary analysis, interviews, and personal observations were applied. Competing theories have emerged rarely, as the analysed sources claimed overall uniformly that NHRIs play or should play an important role within the UN machinery. Difficulties arose from the lack of clear systematized reference to the role of NHRIs by different UN bodies, however, some common concerns were found.
1.3 Outline
After the Introduction Unit, the thesis is divided into three main units. The second unit gives an overview on National Human Rights Institutions by describing the development of the NHRI-concept, the types of institutions, the standards within the Paris Principles: the institution-mandate, the competence, responsibilities and methods of operation, and the guarantees of independence and pluralism. Within this first part, the accreditation of NHRIs is demonstrated as well, including the tasks of the International Coordinating Committee of NHRIs (ICC) and the function and significance of the accreditation process. Closing this chapter, distinction is made from other national actors for the promotion and protection of human rights, like public authorities, national courts, and human rights NGOs. The aim of this unit is to describe the nature and functions of NHRIs, as well as their distinctive character, which enables them to have a special importance in the human rights framework both at the national and international level.
The following, third unit deals with National Human Rights Institutions in the UN context. Division is made between their cooperation with the UN Charter-based Bodies and the UN Treaty-based Bodies. Within the first category the NHRI-related practice of the HRC and the contribution of NHRIs to its review process, the role of NHRIs in the UPR and their relations to Special Procedures are analysed. In the second category, contribution to the work of Treaty-based Bodies is described by exploring the institutions’ role regarding the implementation of international human rights, standard-setting and national monitoring.
The fourth unit is devoted to the demand of greater cooperation between National Human Rights Institutions and the UN. It evolves the challenges of this cooperation, including the controversial status of NHRIs, their lack of knowledge on international human rights issues, the significance of A-status accreditation and the lack of proper regulations at the national and the international level. Explanations are also given by highlighting best practices of NHRIs worldwide, describing the efforts of the UN for strengthening its partnership with NHRIs, and presenting further engagement opportunities. The thesis winds up in conclusion.
2. National Human Rights Institutions: An Overview
National Human Rights Institutions are state-founded, independent and pluralistic national bodies established by law and mandated to promote and protect human rights at the national level. The concept of NHRIs originates from the UN, as the idea that ‘national human rights commissions should be established to monitor state compliance with the norms contained in the Universal Declaration of Human Rights’ was conceived in the earliest years of the UN,[15] and developed strongly in the last 20 years.
2.1 Development of the concept of NHRIs
In 1946, one year before the establishment of the first institution in France (Commission national consultative des droits de l’homme) the UN Economic and Social Council (ECOSOC) invited the UN member states to establish local human rights commissions. The aim was to facilitate the communication between the UN and its member states by providing periodic information on national human rights practices to the UN.[16] At this time, the precise function of these new domestic entities was undefined.[17] The emphasis was not on the promotion of human right at the national level, but rather on their supporting role regarding the work of the ‘emerging international human rights organization’.[18] In the 50s and 60s, ‘the international human rights regime was only in its early stages of development’ being engaged in its own standard setting and institution building.[19]
The next important step in the development of the concept of NHRIs was followed only in 1978, when the UN Commission on Human Rights (CHR) called a Seminar on National and Local Institutions for the Promotion and Protection of Human Rights.[20] Its purpose was to develop a set of guidelines on the structure and functionality of national institutions.[21] The seminar, supported later on by the UN GA,[22] was particularly representative and productive.[23] Aside from the adoption of the first set of international guidelines on national institutions, the institutions gained ‘a considerable amount of international attention’ and ‘a growing number of governments became interested’ in the creation of similar structures.[24]
However, during the 80s the UN Secretary-General (UN SG) prepared five reports on National Human Rights Institutions,[25] these did not contribute to the development of the concept substantially. In the beginning of the 90s, democratization wave swept over the world and many states transformed from authority to democracy, so that human rights and their institutional protection became important.[26] Several institutions were established in the course of these political changes.
The breakthrough in the NHRI-concept resulted from the first international workshop of national institutions for the promotion and protection of human rights in Paris in 1991. In the course of this gathering, representatives of National Human Rights Institutions, governments, the UN and its agencies, and intergovernmental and non-governmental organizations[27] agreed upon the so-called Paris Principles.[28] The Paris Principles describe NHRIs as key domestic bodies, which have a broad mandate, a general competence to promote and protect human rights at the national level worldwide.
In 1993, the World Conference on Human Rights reaffirmed the important and constructive role played by National Human Rights Institutions and recognized the value of the Paris Principles as a benchmark for national institutions. Its final act, the Vienna Declaration and Programme of Action, encouraged the UN member states to establish and strengthen NHRIs in accordance with the Paris Principles.[29]
The Vienna Declaration claimed that each state had the right ‘to choose the framework which is best suited to its particular needs at the national level’.[30] Therefore, there is no universal or ideal model of institutions. They are established in different forms and with various mandates in each state. This is because ‘NHRIs are situated within a particular national context’[31] according to the needs and legal tradition of the respective state. Because of this institutional diversity, the question arises whether and how NHRIs can be categorized though. As the Paris Principles frame minimum requirements, the institutions hold some similarities concerning their competencies and responsibilities; however, they often place emphasis on particular functions. Some institutions underline their advisory, monitoring and promotional activity; others are engaged in the investigation of human rights abuses.
The traditional literature suggests a classification that distinguishes between human rights commissions and ombudsman institutions according to the structure: those composed of more commissioners and those governed by one individual.[32]
Based on their activity, more types of national institutions can be distinguished: human rights commissions, human rights councils, committees or centres, human rights institutes, ombudsman institutions.[33] Human rights commissions are mostly involved in investigation of human rights abuses and in human rights education.[34] Human rights councils act especially within the area of political consulting.[35] Institutes have their focus on the sectors of political consulting, human rights education and research.[36] Ombudsman institutions, as important actors of the individual legal protection, consider and hear individual complaints.[37]
At this point, it is important to make clear that this thesis only treats institutions as National Human Rights Institutions in terms of the Paris Principles. As discussed later, NHRI-like public institutions (e.g. classic ombudsman offices) have been established long ago in various countries around the world. Not all of them can, however, be classified as a NHRI conforming to the Paris Principles.
2.2 Standards within the Paris Principles
According to their legal nature, the Paris Principles are nonbinding benchmarks of international law, ‘as they are laid down in an annex to a UN GA resolution’.[38] They are ‘internationally agreed minimum standards’[39] for the establishment, operation and assessment of NHRIs and determine guidelines towards which states can be steered when they wish to establish an institution or strengthen their existing body to a National Human Rights Institution. Despite of being soft law, the significance of the Paris Principles cannot be underestimated, as the compliance with them determinates a range of rights and privileges for the institutions.[40] The Paris Principles describe the mandate, the competency and responsibilities, the composition, the guarantees of independence and pluralism as well as the methods of operation of such institutions.
2.2.1 Mandate on the promotion and protection of human rights
The Paris Principles specify that a National Human Rights Institution must have a clearly defined and broad mandate.[41] The mandate is clearly defined if the composition and the competencies of the institution are regulated and described in a statute or in the constitution. The mandate must be ‘as broad as possible’.[42] This is one of the most important features of NHRIs and one that draws a distinction between Paris Principles-compliant NHRIs and other national human rights bodies or structures. This demand encompasses more requirements.
First, the mandate must charge the institution with competencies for both the promotion and protection of human rights.[43] Promotion serves the goal of making human rights and the related mechanisms visible and understandable. This can be achieved through a variety of activities, including human rights education, disseminating publications, organizing seminars and workshops, and developing human rights policies.[44] Protection addresses, first and foremost, elimination of human rights violations by monitoring human rights, conducting thematic inquiries, and accepting and investigating individual complaints.[45]
Second, the mandate of the institution must involve both national and international activities. ‘Although NHRIs are creation of their own domestic laws and processes, their existence is closely connected with the international human rights system …’[46] They have the mission of promoting the national implementation of international human rights instruments; encouraging the ratification of such instruments; ensuring the harmonization of national legislation, regulations and practices with the international human rights standards; and interacting with international human rights bodies.[47]
Third, a broad mandate covers the whole spectrum of human rights, including civil, political, economic, social, and cultural rights. However, the institutions can ascertain their priorities and have a focus on a special thematic area within their broad mandate where the major issues on national implementation of human rights emerge. Some institutions work as equality human rights commissions, focusing on discrimination-related human rights abuses;[48] some promote and protect women’s and children’s rights;[49] and others specialize in business and human rights.[50]
Fourth, the broad mandate should enable the institutions to investigate human rights violations committed by non-state actors, including business enterprises. While the Paris Principles do not explicitly require that NHRIs engage directly with non-state violations, they do encourage the action of NHRIs aimed at protecting and promoting human rights as they relate to private actors in more specific ways.[51]
2.2.2 Competence, responsibilities, methods of operation
Regarding the institutions’ competencies, the Paris Principles specify minimum duties, which must be fulfilled, and further tasks, from which the institutions can choose. States can confer extra assignments on the institutions that are compatible with the function of an independent NHRI. According to the Paris Principles, their main tasks are: monitoring of human rights and their implementation; political consulting; investigation of human rights violations; awareness-raising, such as human rights education; public relations; research activity; and cooperation with other institutions having competence in the areas of human rights protection and promotion at the national, regional, and international levels.
An institution’s monitoring function is one of its core duties, which is the precondition of carrying out other functions. While the term ‘monitoring’ is not explicitly mentioned in the Paris Principles, some of the competencies therein are monitoring activities by nature. Based on their mandate, NHRIs can examine the domestic legislation and administrative provisions in force, as well as bills, proposals, and administrative praxis, to see whether they comply with international human rights standards.[52] The aim is ‘to promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments’.[53]
In the course of their consultancy capacity, the institutions submit to the government, parliament, administrative authorities or courts either at request or ex officio, advisory opinions and recommendations on any matters concerning the promotion and protection of human rights and prepare reports on their findings.[54] The aim of this advisory function is to ensure that internationally recognized rights find a home within national regulation and practice.[55] Encouraging the ratification of international human rights instruments, ensuring the effective implementation of the already ratified treaties,[56] and contributing to the reporting activity of the state under its international human rights obligations[57] is part of the advisory function.
The NHRIs’ investigative function constitutes the core element of their protection mandate. Investigations consider abusive situations and can be initiated by individual human rights complaints or carried out as thematic investigations or public inquiries. The Paris Principles do not require NHRIs to have complaint-handling competence. This is merely an additional principle concerning the status of commissions with quasi-jurisdictional competence.[58] Accordingly, there are several institutions that are not authorized to hear or consider complaints and petitions concerning individual situations but are still in compliance with the Paris Principles. Thematic investigations are more proactive than individual case processing and provide protection to vulnerable groups who live with a special human rights threat potential and are often unaware of their rights and of the protecting mechanisms.[59]
In the course of their promotion mandate, the institutions carry out research, education, and PR activities. Research serves as a basis to all other activities, and is especially complementary to the monitoring and advising functions. Human rights education means systematic public awareness-raising on national and international human rights standards and the development and promotion of skills and competencies of people to make them being able to realize their own rights and to advocate for the rights of others in the broader sense. Public relations cover the collecting, producing, and spreading of information material on human rights issues, which is necessary to the effective and reasonable functioning.
According to the Paris Principles, one of the functions of NHRIs is to cooperate with other actors working in the field of human rights promotion and protection at the national, regional, and international levels.[60] At national level, NHRIs should cooperate with parliamentary human rights commissions, human rights departments of ministries, human rights NGOs, and other similar bodies. At regional level, NHRIs cooperate with each other in four main geographical groups: Network of African National Human Rights Institutions,[61] Network of National Institutions in the Americas,[62] Asia Pacific Forum,[63] European Group of National Human Rights Institutions. These regional coordination mechanisms are well positioned to contribute to the development of regional human rights dialogue, networks, and practical programs of support, to foster knowledge and information exchange between individual members, and to enable them to have a collective voice at the regional and international levels.[64] At international level, national institutions group in the ICC and cooperate with regional and international intergovernmental organisations. The Paris Principles expressly emphasise the necessity of cooperation of NHRIs with the UN and any other organisation in the UN.[65]
In order to fulfil these tasks, the Paris Principles specify certain powers, which National Human Rights Institutions can and must be entrusted with. The main rule is that national institutions should ‘[f]reely consider any questions falling within [their] competence’ and must be authorized not only on the proposal of the government but also without referral to a higher authority.[66] Such powers include hearing any person, accessing any official documents, entering any premises, or filing a legal action.[67]
Closing their inquiries, national institutions must be able to publicize their findings and formulate opinions, reports, recommendations, or proposals.[68] Relatively few institutions have the power to issue enforceable orders. The institutions must manage themselves as well, for instance meet on a regular basis and where appropriate establish working groups or regional sections.[69]
2.2.3 Independence and pluralism
To the effective performing of the above-mentioned tasks, the Paris Principles prescribe two requirements: independence and pluralistic composition. Both are important characteristics of National Human Rights Institutions.
According to the Paris Principles, NHRIs must be independent in a functional, personal, and financial sense. Functional independence must be guaranteed through ascertain the legal basis of institutions in a legislative or constitutional text, which permits the institutions the above-mentioned powers. The establishment at the constitutional or statutory level increases the stability of the institutions so that the government cannot amend their mandate in a simple way and it also contributes to the transparent functioning. Fundamental guarantees granted by their official enabling act, including provisions on the appointment, election, and dismissal of the executive members on the top of the institutions, facilitate a greater scope of independent action.[70] Financial independence must be ensured through providing the institutions with adequate funding and sovereignty in budgetary matters.[71] The sources should origin first of all from public funds; however, it can be supplemented through third-party funds.
The Paris Principles require a pluralistic staff structure, which involves human rights relevant social power and reflects the cultural and social diversity of the society.[72] This enables the representation of different social groups, as for instance social and ethnic minorities in the work of the institution, and facilitates the access of socially disadvantaged groups to the services of national institutions.
2.3 The accreditation of NHRIs
As mentioned earlier, this thesis only treats institutions as NHRIs in terms of the Paris Principles. Whether or not an institution meets the requirements set down in the Paris Principles is examined in an international proceeding. This peer review procedure, the so-called accreditation, runs according to formal rules.[73]
2.3.1 The International Coordinating Committee of NHRIs
In 1993, in the course of the second international workshop of NHRIs in Tunis an international committee to coordinate the activities of national institutions was established.[74] The main task of the International Coordination Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) consists in promoting and strengthening NHRIs in accordance with the Paris Principles and providing them leadership in the promotion and protection of human rights.[75] The ICC is a non-profit legal entity, an association under Swiss law.[76] Those NHRIs become voting members of the ICC, which comply all criteria laid down in the Paris Principles. The ICC is managed by the ICC Bureau, which is composed of four member institutions each of the geographical regions (Africa, America, Asia-Pacific and Europe). The ICC Bureau has its statutory seat in Geneva, where it holds meetings twice a year. According to its Statute, the ICC coordinates at an international level the activities of NHRIs and promotes their establishment, foremost through the accreditation of new members and the periodic renewal of accreditation.
Beyond its management committee, the ICC has a permanent personal representative in Geneva, based with the National Institutions and Regional Mechanisms Section of the Office of the High Commissioner for Human Rights (OHCHR), but founded through voluntary contributions of the institutions themselves. The Geneva Representative assists the ICC with its activities at the international level on the one hand, and the individual institutions on the other hand. She plays an important role in making statements on behalf of NHRIs to the HRC.[77] Although the ICC Bureau and the ICC Geneva Representative cooperate with the OHCHR closely, neither of them is formally associated with it. This is due to the resolution of the institutions to maintain further their separation from ‘the politicized arena’ of the UN in order to sustain their independence, which protects them from state influence at the international level as well.[78]
In 2000, the ICC established a Sub-Committee on Accreditation (SCA) and mandated it to examine whether the institutions under consideration comply with the Paris Principles and make recommendations for their accreditation status.[79] While the responsibility for the examination of application documentation lies with the SCA, the ICC Bureau makes the final decision on accreditation. According to the SCA Rules of Procedure, the Sub-Committee consists of one representative of each of the four regions, appointed for a term of three years renewable.[80] The SCA holds its meetings twice a year closely after the general meetings of the ICC.
However, some criticise that NHRIs are overregulated by international gatekeepers such as the ICC,[81] ‘the work of the ICC is key to understanding the role of NHRIs in the UN structures’,[82] and without its accreditation process and lobby activity at the international level, NHRIs would not be able to participate effectively.
2.3.2 The accreditation process
In its early years, the accreditation of national institutions was rather a soft process without any written rules. Neither the ICC’s, nor the SCA’s Rules of Procedure provided guidance for determining whether an applicant institution conforms to the Paris Principles. In the absence of clear guidelines, the SCA has been left to develop its own understanding. This vague praxis and the increased number of applications led to the need of review of the accreditation process. In 2008, the findings of the examination were put down in a discussion paper[83] and built into the rules of procedure of the ICC and the SCA.
The ICC encourages strong national human rights protection system in the UN member states by having only one NHRI, however, in exceptional circumstances, more than one national institution may seek accreditation by the ICC. In this case, an agreement is needed including arrangements between the institutions for participation in the international human rights system.[84] However, primarily representatives of national institutions consider the accreditation applications, this is a multi-stakeholder process. Information submitted by NHRIs are supplemented by additional information received from civil society of the state concerned, representatives of the regional coordinating committees of institutions, having standing invitation to participate as observers in the sessions of the SCA, and UN field offices.[85] The ICC developed official documents,[86] which inform national institutions how to make an application, i.e. what documentation is needed,[87] what deadlines are to be considered and how the application process runs. Within their application, the institutions must answer questions regarding their establishment, independence, composition, appointment process, tenure, organizational infrastructure, working methods, general competencies and responsibilities and relationship with relevant human rights stakeholders and other bodies.[88] Beside written documents, an interactive dialogue between the SCA and applicant NHRIs takes place during the accreditation session, e.g. a telephone interview forms an important part of the process. The SCA works on schedule and reviews approx. twenty applications during its four-day session; though the volume of applications may change during the year.[89] After deliberations, the SCA agrees on a recommended accreditation status for each applicant and forwards its decision to the national institutions with the opportunity to respond. Thereafter, the recommendation is forwarded to the members of the ICC Bureau, who can approve or object to the recommendation. The decision of the ICC Bureau on accreditation is final.[90]
The outcome of the process depends on the Paris Principles-conformity of the institutions. The approved accreditation status may result in obtaining a new accreditation classification in the case of first applications, or holding or altering the existing one, including losing[91] or suspension.[92]
2.3.3 The function and significance of accreditation
On the ground of compliance with the Paris Principles, the institutions are assigned in three different categories.[93] If an institution meets all of the requirements, it will receive an A-status and become a full-member of the ICC. An institution will fall in category B if it does not comply with the Paris Principles in its entirety. These institutions gain membership in the ICC; however, they cannot be elected into the ICC-Bureau and does not have any right to vote at common meetings. As long as the requirements of the Paris Principles are not met, the institution receives a C-status and an observer status on joint international events.
Even though the ICC cannot make legally binding decisions under international law, its decisions on accreditations have had an increasing practical significance, since the accredited status influences the extent to which NHRIs participate in the UN human rights mechanisms.[94] Both the Charter-based and the Treaty-based Bodies consider whether a member state has an accredited National Human Rights Institution, and appreciate its contribution to the popularization and implementation of human rights standards at the domestic level.[95] Thus, the ICC and the UN linked the compliance with the Paris Principles to the issue of participation in the work of the UN human rights bodies.[96] Precisely, the A-status accreditation brings with the recognition of the respective NHRI within the UN system.[97]
Participation in the accreditation process affects not only the place of institutions in the international sphere but the national status of the institutions, since their independence is assessed and acknowledged by an international committee opposite to the political leadership of their respective state.
Because of the growing number of NHRIs and their increasing impact in the international fora, over the years greater attention has been paid to the need to assess national institutions.[98] Furthermore, where the circumstances of an institution change in way, which may affect its compliance with the Paris Principles, the ICC Bureau may carry out a review before the expiration of the five-year interval.
2.4 Distinction from other national actors
Some might argue that an independent judiciary and democratically elected parliament are sufficient means to ensure the promotion and protection of human rights and it is not necessary to establish special national machinery for this reason. Unfortunately, history has taught us differently: a body that is separated from the responsibilities of executive governance and judicial administration is in a better position to take a leading role in the promotion and protection of human rights.[99]
National Human Rights Institutions are national mechanisms, they work first of all at the national level. Therefore, they share some characteristics with other domestic human rights protection actors, such as public authorities, national courts, and human rights NGOs, and their roles overlap to a certain extent.[100] Nevertheless, they differ as well, especially in terms of the institutions’ independence, broad mandate, pluralistic staff structure, and special status.
2.4.1 Public authorities
Under public authorities, parliamentary human rights commissions, ministry departments, anti-discrimination agencies, and human rights commissioners or ombudsman offices will be considered. All of them are state-founded institutions like NHRIs. The difference lies in their state-influence on the one hand. While public authorities are bound by state instructions, National Human Rights Institutions must remain free from state influence. On the other hand, public authorities are able to apply exercise power and make binding decisions. However, some NHRIs with quasi-jurisdictional function can conduct investigations; they rarely can take enforcement measures after closing their investigations. At the same time, National Human Rights Institutions can take more preventive measures. They can not only handle human rights violations, but avoid and prevent them. The goal, to eliminate human rights abuses a priori, shows another, a more forward-looking human rights-based approach.
In some countries, there are ombudsman institutions. These are non-jurisdictional institutions for legal protection,[101] first of all by hearing and considering individual complaints. This is a competence what NHRIs might have too. However, not all ombudsman-institution can be considered as NHRI, only after granted a status in the accreditation process.[102] In most cases, their mandate does not cover all human rights issues, only fundamental rights constituted in the national legislation. Owing to their legal status, most ombudsman institutions are restricted to investigate human rights abuses occurred in the public administration, but not actions of private or legal persons. Therefore, they cannot consider alleged violations like human trafficking or discrimination caused by private enterprises. In addition, the connection between ombudsman institutions and civil society is often weak. On the contrary, NHRIs create human rights dialogue between civil society and the public administration.[103]
2.4.2 National courts
In democracies, the retroactive protection of individual human rights falls to the competence of courts. Therefore, the question often arises, why a National Human Rights Institution is needed beside the existing judiciary. It must be emphasized that NHRIs cannot replace national courts, they can only complete their activity. It is beyond doubt, that an independent judiciary has a very important role in enforcing the rule of law.[104]
In contrast to national courts, which intervene reactively after the violation has occurred, NHRIs act proactively in order to avoid human rights abuses. Where their mandate allows, National Human Rights Institutions not only handle human rights complaints but also offer the victims alternative dispute resolution and human rights dialogue, conduct thematic inquiries, and advance proposals for legal reform.[105] In addition, the advantage of the procedure of institutions with quasi-judiciary competencies compared to the courts is that it is not so costly in terms of time and expenses, it is flexible, informal and because of these reasons, more available for groups in need.
Nevertheless, the minority of NHRIs are able to enforce their recommendations directly and a few of them can be enforced in the same manner as court judgements.[106] For this reason, national institutions are usually not considered as effective domestic remedy as element of admissibility criteria required in regional and international legal procedures.[107] At the same time, some NHRIs have powerful court referral powers ‘such as constitutional review, habeas corpus, and amicus curiae powers’.[108]
2.4.3 NGOs
It is beyond doubt, that human rights NGOs play an essential role in promotion and protection of human rights at the national level. It is neither in question that ‘some of the space that NHRIs occupy today has traditionally been that of NGOs’.[109] In spite of their similar mission, they have several distinctive characteristics.
First of all, NGOs are private entities of the civil society without public mandate, while NHRIs are established by an act of the state. Therefore, national institutions have an official mandate, formal powers, and the law regulates their relationship to the state.[110] NGOs often work with limited spread of issues or with specific groups of the society, while NHRIs have a broad mandate. They have it in common, that some NHRIs having protection component in their mandates might represent victims and participate in court procedures like human rights NGOs do.
Considering the nature of their work: NHRIs provide more than a negatively critical voice; they are constructively critical actors, and ‘can contribute actively to solving the problems rather than merely pointing them out’.[111] Their activities are primarily not from a combative nature, but rather constructive and supportive,[112] and instead of mere monitoring, they can provide human rights impact assessments and proposals for government policies.[113]
Comparing their role within the international human rights framework, both are important stakeholders. Both are able to participate at the international level after being accredited by the appropriate committee. The basis of participation of NGOs has been laid down in Article 71 of the UN Charter, which acknowledges the potential contribution of non-governmental organizations to the work of the UN in economic and social matters.[114] This has also been elaborated in ECOSOC Resolution 1996/31 and in the Rules of Procedure of the functional commissions of ECOSOC. Based on these regulations, NGOs have an access to the UN through the standing committee of the ECOSOC, the Committee on Non-Governmental Organizations.[115] Nota bene, the work of the Committee in granting and reviewing accreditation of NGOs was criticized for ‘overpoliticization and lack of due process’.[116] Several authors formulated the demand of changing the foregoing practice and depoliticising the accreditation process of NGOs.[117]
However, the legal status of NHRIs in their relations with UN human rights bodies have been set out only in resolutions and decisions, national institutions have gained rights of participation at various international bodies and their contribution is increasingly supported by these international actors.[118] A particular advantage associated with NHRI submissions is that ‘with the special status of national institutions, their positions are more difficult to sideline than those of NGOs’.[119]
Compared to all these national state and non-state actors, the most significant distinctive characteristic of National Human Rights Institutions is their special status. Being an independent body established by the state, NHRIs are able to create human rights dialogue between civil society and public authorities and cooperate with international organizations and networks.
3. NHRIs and the international human rights system
Besides that NHRIs are cornerstones of strong domestic legal systems,[120] they increasingly ‘serve as relay mechanisms between international human rights norms and the state’.[121] In 1995, an OHCHR Handbook, designed as a guideline for the establishment and strengthening of national institutions worldwide, formulated the wish that while the domestic situation must remain the principal focus of an NHRI, it may be able to offer valuable advice on international issues.[122] This requirement has changed radically as according to recent trends among scholars and based on NHRI experiences. Namely, this international part of the institutions’ mandate has become equally important to that as the national related. Some authors argue that NHRIs ‘have become less national institutions and more an international project’,[123] as ‘there is an increasing tendency to assign powers to NHRIs to enforce international law at the municipal level’.[124] Others hold that engaging with issues at the international level is one of the greatest contributions that NHRIs can make to the protection of human rights.[125]
[...]
[1] Kälin and Künzli, 2009, p. 184.
[2] Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
[3] Boerefijn, 2009, p. 577.
[4] International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407, Art. 2(1).
[5] Mégret, 2010, p. 130.
[6] Lynch, 2009, p. 163.
[7] Magazzeni, 2009, p. 170.
[8] Mertus, 2009, p. 1; Mertus, 2010, p. 92.
[9] UN General Assembly Res., Principles relating to the status of national institutions, UN Doc. A/RES/48/134 of 20 December 1993, Annex. Hereinafter referred to as the Paris Principles.
[10] UN General Assembly Res., Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF/.157/23 of 12 July 1993, para. 36.
[11] Deutsche Gesellschaft für Technische Zusammenarbeit / Deutsches Institut für Menschenrechte, 2011, p. 2.
[12] Paris Principles, s. 1.
[13] Some of the latest examples: UN General Assembly Res., National institutions for the promotion and protection of human rights, UN Doc. A/RES/66/169 of 11 April 2012; UN Secretary-General Report, National institutions for the promotion and protection of human rights, UN Doc. A/HRC/20/9 of 1 May 2012; UN Human Rights Council Res. 20/14 of 16 July 2012, National institutions for the promotion and protection of human rights.
[14] UN General Assembly Res., National institutions for the promotion and protection of human rights, UN Doc. A/RES/66/169 of 11 April 2012.
[15] Carver, 2010, p. 3.
[16] UN Economic and Social Council Res. 9(II) of 21 June 1946, Commission on Human Rights, para. 5.
[17] Aichele, 2003, p. 69.
[18] Pohjolainen, 2006, p. 30.
[19] Ibid., p. 43.
[20] UN General Assembly Res., Observance of the thirtieth anniversary of the Universal Declaration of Human Rights, UN Doc. A/RES/32/123 of 16 December 1977, Annex, para. 2(b); United Nations Division of Human Rights, 1978.
[21] UN Commission on Human Rights Res. 1978 (XXXIV), National institutions in the field of human rights, UN Doc. E/CN.4/RES/1978/23 (XXXIV) of 8 March 1978.
[22] UN General Assembly Res. 33/46 of 14 December 1978, National institutions for the promotion and protection of human rights.
[23] Alston, 1992, p. 184.
[24] Pohjolainen, 2006, p. 47.
[25] UN Secretary-General Report, Alternative approaches and ways and means within the United Nations system for improving the effective enjoyment of human rights and fundamental freedoms: national institutions for the promotion and protection of human rights, UN Doc. A/36/440 of 9 October 1981; UN Secretary-General Report, Alternative approaches and ways and means within the United Nations system for improving the effective enjoyment of human rights and fundamental freedoms: national institutions for the promotion and protection of human rights, UN Doc. A/38/416 of 24 October 1983; UN Secretary-General Report, National institutions for the promotion and protection of human rights, UN Doc. A/39/556 of 9 October 1984; UN Secretary-General Report, National institutions for the protection and promotion of human rights, UN Doc. E/CN.4/1987/37 of 27 October 1986; UN Secretary-General Report, National institutions for the protection and promotion of human rights, UN Doc. E/CN.4/1989/47 of 16 December 1988 and Add. 1 of 15 February 1989.
[26] Kjærum, 2006, p. 67.
[27] The full list of participants is contained in: UN Economic and Social Council Res., Note by the Secretariat, Further promotion and encouragement of human rights and fundamental freedoms, including the question of the programme and methods of work of the Commission, National institutions for the promotion and protection of human rights, UN Doc. E/CN.4/1992/43/Add.1 of 23 January 1992.
[28] UN General Assembly Res., Principles relating to the status of national institutions, UN Doc. A/RES/48/134 of 20 December 1993, Annex.
[29] UN General Assembly Res., Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/23 of 12 July 1993, Part I, para. 36.
[30] Ibid., para. 36.
[31] Deutsche Gesellschaft für Technische Zusammenarbeit / Deutsches Institut für Menschenrechte, 2011, p. 3.
[32] United Nations / Centre for Human Rights, 1995, para. 41; United Nations / High Commissioner for Human Rights, 1993, p. 3; International Council on Human Rights Policy, 2000, p. 3; Pegram, 2010, p. 733; Nowosad, 2005, pp. 183-184; Reif, 2000, p. 6.
[33] Aichele, 2003, p. 102; European Union Agency for Fundamental Rights, 2010, p. 24.
[34] The majority of NHRIs work in this form in countries of Africa, Asia and Europe.
[35] E.g. France (1947), Luxembourg (2000), Mali (2009), Senegal (1997), Tunisia (2008), Qatar (2002).
[36] E.g. Cyprus (1998), Denmark (2002), Germany (2001), the Netherlands (2012), Romania (2007).
[37] E.g. in countries of South-America and Central-Europe.
[38] Aichele, 2010, p. 9.
[39] Kjærum and Grimheden, 2011, p. 364.
[40] Murray, 2010, p. 306.
[41] Paris Principles, s. 1, para. 2.
[42] Ibid.
[43] Ibid., para. 1.
[44] United Nations / High Commissioner for Human Rights, 2010, p. 57 et. al.
[45] Ibid., p. 76 et. al.
[46] Sidoti, 2012, p. 93.
[47] Paris Principles, s. 1.
[48] E.g. the Human Rights and Equal Opportunity Commission of Australia, the Canadian Human Rights Commission, the Equality and Human Rights Commission of the United Kingdom.
[49] E.g. the Afghan Independent Human Rights Commission, the National Human Rights Commission of India.
[50] E.g. the Danish Institute for Human Rights, the Scottish Human Rights Commission.
[51] Brodie, 2012.
[52] Paris Principles, s. 1, para. 3(a)(i).
[53] Ibid., s. 1, para. 3(b).
[54] Paris Principles, s. 1, para. 3(a).
[55] ICCPR Committee, General Comment No. 31[80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 of 26 May 2004, para. 13.
[56] Paris Principles, s. 1, para. 3(c).
[57] Ibid., para. 3(d).
[58] Paris Principles, s. D.
[59] Gallagher, 2000, pp. 214-215.
[60] Paris Principles, s. 1, para. 3(e).
[61] http://www.nanhri.org [Accessed 30 August 2012].
[62] http://www.nhri.net [Accessed 30 August 2012].
[63] http://www.asiapacificforum.net [Accessed 30 August 2012].
[64] Roberts, 2011, p. 230.
[65] Paris Principles, s. 1, para. 3(e).
[66] Ibid., s. 3(a).
[67] United Nations / Centre for Human Rights, 1995, para. 259.
[68] Paris Principles, s. 3(c) and s. 1, para. 3(a).
[69] Ibid., s. 3(e).
[70] United Nations / High Commissioner for Human Rights, United Nations / Development Programme / Democratic Governance Group / Bureau for Development Policy, 2010, p. 248.
[71] Paris Principles, s. 2, para. 2.
[72] Ibid., s. 2, para. 1.
[73] Rules of Procedure for the ICC Sub-Committee on Accreditation of 14 September 2004 (hereinafter referred to as the SCA Rules of Procedure); Guidelines for Accreditation & Re-Accreditation of National Human Rights Institutions of 30 July 2008 (hereinafter referred to as the Accreditation Guidelines).
[74] UN Commission on Human Rights, Report of the second International Workshop on National Institutions for the Promotion and Protection of Human Rights, Tunis, 13-17 December 1993, UN Doc. E/CN.4/1994/45 of 23 December 1993.
[75] Association International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights Statute of 30 July 2008, (hereinafter referred to as the ICC Statute), Art. 5.
[76] UN Secretary-General Report, National institutions for the promotion and protection of human rights, UN Doc. A/HRC/10/54 of 26 January 2009, para. 56.
[77] Sidoti, 2012, p. 109.
[78] Aichele, 2010, p. 12.
[79] UN Secretary-General Report, Effective functioning of human rights mechanisms: national institutions for the promotion and protection of human rights, UN Doc. E/CN.4/1999/95 of 3 February 1999, para. 49.
[80] SCA Rules of Procedure, rule 2.
[81] Carver, 2010, p. 31; Murray, 2007, p. 13.
[82] Murray, 2007, p. 30.
[83] Decision Paper on the Review of ICC Accreditation Procedures for National Human Rights Institutions (NHRIs), adopted on April 2008.
[84] ICC Sub-Committee on Accreditation, General Observations of March 2009 (hereinafter referred to as the SCA General Observations), s. 6.6.
[85] UN Secretary-General Report, Process currently utilized by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights to accredit national institutions in compliance with the Paris Principles, UN Doc. A/HRC/13/45 of 18 January 2010, paras. 11-12.
[86] Accreditation Guidelines; SCA General Observations.
[87] SCA General Observations, s. 6.7.
[88] Template for the Statement of Compliance with the Paris Principles.
[89] ICC Sub-Committee on Accreditation, 18 November 2009.
[90] Accreditation Guidelines, p. 3; the ICC Statute, Art. 12; the SCA Rules of Procedure, rule 6.1.
[91] ICC Statute, Art. 18.1.
[92] SCA General Observations, ss. 6.1(b) and 6.4; the ICC Statute, Art. 18.2, 18.3, 18.4, 19.
[93] ICC, May 2012.
[94] Murray, 2007, pp. 30-31.
[95] UN Human Rights Council Res. 5/1 of 18 June 2007, Institution-building of the United Nations Human Rights Council; UN Commission on Human Rights Res. 2005/74 of 20 April 2005, National institutions for the promotion and protection of human rights, para. 11; UN Human Rights Council Res. 16/21 of 12 April 2011, Review of the work and functioning of the Human Rights Council.
[96] Lynch, 2009, p. 163.
[97] Roberts, 2010, p. 227.
[98] Murray, 2010, p. 309.
[99] United Nations / High Commissioner for Human Rights, 1993.
[100] Roberts, 2011, p. 228.
[101] Marie, 2003, p. 266.
[102] Deutsche Gesellschaft für Technische Zusammenarbeit / Deutsches Institut für Menschenrechte, 2010, p. 4.
[103] de Beco, 2011, p. 91.
[104] United Nations / High Commissioner for Human Rights / Development Programme / Democratic Governance Group / Bureau for Development Policy, 2010, p. 3.
[105] United Nations / High Commissioner for Human Rights, 2010, p. 77.
[106] For instance, the Uganda Human Rights Commission Act (1997), para. 7(2).
[107] For instance, ECHR, Art. 35(1).
[108] Pegram, 25 November 2009, p. 5.
[109] Roberts, 2011, p. 228.
[110] de Beco, 2010, p. 134.
[111] Lindholt, 2007, p. 149.
[112] Nowosad, 2007, p. 189.
[113] Kumar, 2006, p. 760.
[114] Lempinen, 1999, p. 2.
[115] Established by UN Economic and Social Council Res. 3 (II) of 21 June 1946. The current terms of reference of the Committee are set out in Resolution 1996/31.
[116] Charnovitz, 2006, p. 359.
[117] UN General Assembly, Note by the Secretary-General, UN Doc. A/58/817 of 11 June 2004, para. 127. See also: Willetts, 2011, p. 61 et al.; Vedder, 2007, p. 171; Schwitter, 2004, p. 53; Baehr, 2009, p. 56; Rossi, 2010, p. 194.
[118] Abraham, 2006, p. 98.
[119] Kjærum, 2003, p. 17.
[120] Haász, 2011.
[121] Statement by the UN Deputy High Commissioner for Human Rights, Ms. Kyung-wha Kang address to the Seminar on the future role of National Institutions in celebration of the 20th anniversary of the Danish Institute for Human Rights.
[122] United Nations / Centre for Human Rights, 1995, para. 206.
[123] Carver, 2010, p. 2; Cardenas, 2003.
[124] Carver, 2010, p. 8.
[125] Dickson, 2002, p. 5; United Nations / High Commissioner for Human Rights, 2008, p. 43.