OHCHR, National Institutions Unit, September 2007

GUIDANCE NOTE

National Human Rights Institutionsand the work of OHCHR

at Headquarters and field level

Important notice
“A status NHRIs”
This Guidance Note refers to National Human Rights Institutions (NHRIs) in general. However, the recommendations contained in this guidance note should ideally be taken into consideration whenever the NHRI has been accredited with “A status” by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC)
“Other NHRIs”
OHCHR staff will have to exercise caution with NHRIs that do not have “A status” accreditation. In these cases, careful attention needs to be paid as to the legal and practical aspects of the NHRI, thus avoiding situations in which OHCHR may inadvertently legitimize an NHRI that is neither effective nor independent.
Practical difficulties that OHCHR staff and field presences may face in terms of the functioning of an NHRI at the national level may include:
-an NHRI that has not been accredited by the ICC;
-an NHRI that has been accredited with “A status” in the past, but is currently falling short of the Paris Principles or has been suspended or is under review;
-an NHRI with B or C status (B: observer status; C; non compliant with the Paris Principles);
-an NHRI that isclosely associated with the national Authorities and would clearly not meet the Paris Principles.
Each circumstance needs to be considered carefully, with the support and assistance of the NIU. However, OHCHR staff and field presences are encouraged to strive to improve the level of compliance of an NHRI with the Paris Principles and work to enhance the independence and effectiveness of an NHRI. Based on the first checklist in this guidance note (Checklist for assessing the involvement of NHRIs in areas of work of relevance to OHCHR) the actual performance of the NHRI may be assessed. Lacunae that appear through this assessment may then be used as benchmarks for improvement through action by OHCHR staff or the field presence. Annex I of the guidance note (Steps for the establishment of a NHRI) provides the field presence with the basic “building blocks” based upon which the NHRI should function. Annex II (Steps for the strengthening of a NHRI) may also be used as a source of inspiration for activities to bring the NHRI more into line with the Paris Principles, and through this to strengthen the NHRI in such a manner that the complications listed earlier are addressed.
In this context, it is also important to note that the ICC Sub-Committee on Accreditation may have assessed the NHRI for its compliance (or lack thereof) with the Paris Principles. Current practice by the Sub-Committee ensures that specific recommendations for compliance with the Paris Principles are made to each accredited institution. These recommendations should be a point of departure for OHCHR staff or field presence for follow up work to strengthen the NHRI.
In addition, whenever threats are issued against an NHRI or its members, OHCHR staff or the field presence are encouraged to:
-report to OHCHR HQ these threats and discuss appropriate follow up action, including public expressions of support which would raise the visibility of the NHRI at the national level and offer some protection;
-seek assistance from the ICC of NHRIs in terms of early warning or preventive action;
-inform, and possibly involverelevant special procedure mandate holders;
-inform and possibly involve relevant treaty bodies when discussing the State party report;
-make sure the High Commissioner uses every opportunity to address these threats through public or discreet communications with the national Authorities.
“NHRIs, National Protection Systems and the Rule of Law”
It should be pointed out that NHRIs are a key component of national human rights protection systems which also include an independent judiciary, an effective administration of justice, a parliament with a Human Rights Committee, strong and dynamic civil society organizations, alert and responsive media, a school system with human rights education programs at all levels and generally a society encouraging the objective of a universal culture of human rights. OHCHR staff and field presences may need to work with all these entities in order to ensure respect for human rights and the rule of law.
- Having a reliable partner such an NHRI within the country in order to advance the promotion and protection of human rights and ensure international norms are translated into consistent laws and practices can go a long way to address gaps in other components of the national protection system and assist OHCHR to make significant progress both in terms of country engagement and implementation of the Action Plan.
- Creating and strengthening NHRIs to the point that they are both effective and independent thus fully compliant with the Paris Principles can also be a critical benchmark for the success of our field work and part and parcel of a strategy that may allow over time the partial transfer of responsibilities and functions from a field office to the NHRI and the UNCT. This, in turn, would make it possible for OHCHR to redeploy vital resources to other priority countries or emergency operations.
- Finally, it should be noted that increasingly the setting up of an NHRI is part and parcel of peace building strategies in post conflict situations developed by UN Peace Missions and UNCTs. OHCHR Staff and Human Rights Components of such UN Missions should be closely associated in these efforts and to the extent possible ensure coherent rule of law strategies built upon the creation or strengthening of the national human rights protection system as described above.
  1. Purpose of the Guidance Note

The purpose of this Guidance Note is to provide information to OHCHR staff at Headquarters and field presences on NHRIs, and to highlight concrete areas where NHRIs can assist in implementing OHCHR Plan of Action.

NHRIs are key-stones of strong national human rights protection systems. Specifically, “A” status NHRIs can be one of the best relay mechanisms at country level to ensure the application of international human rights norms. NHRIs can also contribute to addressing critical human rights gaps, ensuring the rule of law, and fighting impunity.NHRIs can effectively address the lack of enforcement power of most of the international mechanisms and complement their action as national entities with broad responsibility for the promotion and protection of human rights. NHRIs, because they operate at the domestic level,can for instance ensure follow up action to the recommendations of the international mechanisms and hold the authorities accountable with respect to their human rights obligations.

NHRIs can be crucial partners in the design and implementation of human rights related programmes and activities, given their:

  • broad mandate (covering civil, political economic, social and cultural rights)
  • varied tasks (human rights monitoring, reporting and investigation)
  • independent nature
  • legal basis (constitutional or organic law), and
  • outreach and contact network

They can increase national ownership and thus the success and sustainability of technical cooperation projects, for example by the UNCTs (especially UNDP) in the area of good governance, rule of law and human rights. NHRIs are significantly important partners for country engagement and can facilitate the interaction with other elements of the national protection system, such as the judiciary, national parliament, and civil society organizations.

A concerted and uniform approach on the involvement of NHRIs in the work of OHCHR, in the field as well as at Headquarters, willstrengthen NHRIs, ensure greater effectiveness and sustainability of country engagement work by OHCHR as well as establish the minimum conditions for possible “exit” strategies by OHCHR field offices.

  1. Role of the OHCHR National Institutions Unit

The National Institutions Unit (NIU), in close cooperation with the Geographic Units in the Capacity-Building and Field Operations Branch (CBB) and OHCHR field presences, is the main entry point for OHCHR’s efforts for the establishment and strengthening of NHRIs, as well as for the involvement of NHRIs in the work of OHCHR.

In summary, the NIU;

  • supports efforts for the setting up and strengthening of NHRIs worldwide, with and through Geo desk officers and field presences, including through technical cooperation projects for NHRIs;
  • reviews draft laws concerning NHRIs and advises on matters relating to compliance with the Paris Principles;
  • establishes guidance notes, methodological tools, best practices and lessons learned on NHRI related issues;
  • provides secretariat support to the ICC of NHRIs, including its Subcommittee on Accreditation and the Bureau;
  • facilitates partnerships between NHRIs and UNCTs and country engagement by OHCHR;
  • supports the role of NHRIs as a key element of strong national protection systems and their effective interaction with the judiciary, parliament, and NGOs;
  • supports the partnership of NHRIs with the international human rights system, including Treaty Bodies, Special Procedures and the HRC/UPR;
  • ensures information sharing within OHCHR on NHRI related matters;
  • draftsHC and SG reports to the General Assembly and the Human Rights Council on NHRI activities by OHCHR; and
  • shares information with NHRIs on relevant thematic issues and strengthens the capacity of NHRIs on specific thematic issues such as the administration of justice, the rule of law, transitional justice, prevention of torture;

OHCHR field presences, including human rights components of UN Peace Missions, CBB Geographic Units, as well as other units in OHCHR should endeavour, whenever appropriate, to include (A status) NHRIs in their work, in close cooperation with the NIU. Generally, OHCHR staff members are encouraged to keep this important national partner in mind when planning, implementing or coordinating activities.

As a matter of standard practice, OHCHR staff are encouraged to copy the NIU on any relevant communication regarding NHRIs.

  1. The role of NHRIs in the work of OHCHR

NHRIs have great potential in terms of furthering the human rights agenda at the national level and addressing critical human rights issues, including through cooperation with and in international human rights mechanisms. This section will give a brief overview of the different mechanisms and thematic issues in which NHRIs can play an instrumental role.

3.1Treaty Bodies

With regard to the treaty bodies, NHRIs can contribute as follows;

  • State reports: contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations and, where necessary, express an opinion on the subject, with due respect for their independence;
  • List of issues: provide information to the secretariat of the Treaty Bodies for the drafting of the List of Issues, highlighting gaps in human rights protection at the national level;
  • Session: play an important role during the examination of the periodic report by the TB;
  • Recommendations: ensure follow up to TB concluding observations by the national authorities;
  • Human rights instruments: encourage ratification of international instruments or accession to those instruments, removal of reservations, and ensure their implementation.

3.2Special Procedures

NHRIs may nominate candidates as special procedures mandate-holders. Moreover, NHRIs are instrumental regarding:

  • Information: NHRIs can provide information on human rights issues to the mandate holders, which may then result in urgent appeals;
  • Country visits: support country visits (lobbying for standing invitations and visit requests; preparation of a country visit; facilitation of meetings during a country visit, including with civil society and human rights reporters;
  • Recommendations:follow up to recommendations made by the mandate holder after a country visit;
  • HRC: NHRIs may attend the presentation of SP reports at HRC sessions and take the floor in the following dialogue.

3.3Rule of law

Regarding the rule of law, NHRIs are instrumental for:

  • the reform and the strengthening of judicial and security institutions, including the police and prison administrations, and all sectors of the rule of law, including by ensuring the compliance of standing orders, implementing regulations with relevant international norms as well as the existence of internal accountability systems;
  • ensuring that the administration of justice conforms to human rights standards and provides effective remedies particularly to minorities and to the most vulnerable groups in society;
  • legislative reform undertaken by Parliament, whereby national laws are harmonized with international human rights instruments signed by the State Party.

3.4Transitional justice

NHRIs may contribute to:

  • establishing effective accountability mechanisms;
  • documenting past abuses and other truth seeking/truth telling mechanisms;
  • reparation processes;
  • institutional reform, including vetting initiatives;
  • promoting reconciliation and efforts to preserve the memory of the past;
  • support to the reintegration of demobilised forces, displaced persons and returning refugees into society;
  • special initiatives for child soldiers and child abductees;
  • gender-sensitive approaches to transitional justice.

3.5Torture prevention

NHRIs are expected to become even more involved and visible with the entry into force of the Optional Protocol to the Convention against Torture (as the national preventive mechanisms to prevent torture, through a system of regular visits to places of detention). Following a questionnaire sent in March 2007 by the NIU, it was shown that some 35 NHRIs are already actively engaged in torture prevention activities.

3.6Arbitrary detention

NHRIs mandated to conduct prison visits to monitor conditions of detention can play an important role here. They could visit a detention facility unannounced and request private interviews with detainees. Families of detained persons are also able to appeal to the NHRI in case of irregularities and in case of the existence of a complaints procedure in the NHRI. Their action at country level could support efforts by the international human rights system, especially the Working Group on Arbitrary Detention.

3.7Disability

The Disability Convention requires that States Parties maintain, strengthen, designate or establish a framework, including one or more independent national mechanisms to promote, protect and monitor its implementation (art.33). It calls on State Parties to take into account the Paris Principles, when designating or establishing such mechanisms.

3.8Refugees, IDPs and stateless persons

NHRIs are well placed to contribute to the protection of the rights of refugees, IDPs and stateless persons. NRHIs can play a role in both assistance and protection activities;

  • by ensuring that persons in need enjoy the right to humanitarian assistance, that humanitarian organizations have a right to provide it and that the Government grants these organizations access;
  • through human rights monitoring, which can play a role in the needs assessment and strategic planning as a basis for effective assistance programmes (for example, monitoring of the right to food, shelter, health care and education of vulnerable groups and identifying crucial protection gaps).
  • Through fostering cordial relations between refugees and the host communities by educating refugees to be aware of their duties towards the host communities as well as by educating the host country to be tolerant of refugees and recognise their rights;
  • By evaluating and reviewing existing legislations on citizenship and nationality, ensuring that they do not create situations that could lead to statelessness and urging their governments to establish an efficient registration mechanism.

3.9Human Rights Council

The basis for NHRIs’ involvement in the HRC is resolution 5/1, adopted on 18 June 2007, entitled “Institution-Building of the United Nations Human Rights Council.

  • Rules of Procedure: NHRIs with “A status” ICC accreditation, the ICC and regional coordinating bodies of NHRIs (speaking on behalf of its “A status members”) can;
  • make an oral statement under all agenda items of the Human Rights Council
  • submit documents, which will be issued with an own symbol number;
  • take separate seating in all sessions.
  • Universal Periodic Review: In this process, NHRIs are allowed to;
  • submit information for inclusion in the summary prepared by OHCHR of information provided by other relevant stakeholders;
  • attend the UPR review in the Working Group;
  • make general comments before adoption of the WG report in plenary;
  • be involved in the follow-up to the recommendations (the primary responsibility lies with the State).
  • Special Procedures: NHRIs may nominate candidates as special procedures mandate-holders.
  • Advisory Committee: When selecting candidates, States should consult, inter alia, with their NHRIs.

Checklist

Assessing the involvement of NHRIs in areas of work

of relevance to OHCHR

The following checklist allows OHCHR staff members to assess the involvement of an NHRI in some of the main areas of relevance to the work of OHCHR.

A. Treaty Bodies
Reporting / Has the NHRI provided information to treaty bodies for use in the List of Issues?
Has the NHRI contributed to the preparation of State party reports, including through consultation or commenting on the report?
Has the NHRI made an oral presentation in pre-sessional working groups of treaty bodies?
Has the NHRI made use of the presence of the ICC representative in Geneva to address treaty bodies on its behalf (only for A-status NHRIs)?
Follow-up / Does the NHRImonitor state dissemination of information to all relevant actors on concluding observations and recommendations of treaty bodies and support public awareness thereon?
Does the NHRI support and host follow up meetings to concluding observations and recommendations of treaty bodies intended for the Government, Parliament, public authorities, NGOs and other relevant actors of civil society?
Does the NHRI monitor the effective implementation by the Government of the concluding observations and recommendations of treaty bodies and provide guidance on possible courses of action?
Does the NHRI engage with Government and Parliament and other public authorities regarding the implementation of concluding observations and recommendations?