A Manual on National Human Rights Institutions

A Manual on
National Human Rights
Institutions

Note

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the APF concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.

ISBN 978-0-9942513-2-9 (print)
ISBN 978-0-9942513-3-6 (electronic)

A Manual on National Human Rights Institutions

No reproduction is permitted without prior written consent from the APF.

Asia Pacific Forum of National Human Rights Institutions
GPO Box 5218
Sydney NSW 1042
Australia

Foreword 8

Acknowledgements 9

List of abbreviations 10

Introduction for users 12

Part I:
NHRIs and the Paris Principles 14

Chapter 1: The origins and development of NHRIs 14

1.1. State obligations under international human rights law 14

1.2. Domestic implementation and monitoring mechanisms 15

1.3. Early encouragement of NHRIs 16

1.4. The Paris workshop and the Paris Principles 18

1.5. Vienna Declaration and Programme of Action 19

1.6. Regular resolutions on NHRIs by UN bodies 19

1.7. The global spread of NHRIs 20

Chapter 2: The nature and concept of NHRIs 22

2.1. Defining NHRIs 22

2.2. NHRIs are State institutions, not NGOs 23

2.3. NHRIs are unique State institutions 23

Chapter 3: The Paris Principles 27

3.1. The Paris workshop of October 1991 27

3.2. The Paris Principles 28

3.3. Independence 29

3.4. Other requirements 33

3.5. Implied responsibilities 36

3.6. The importance of compliance with the Paris Principles 38

3.7. Establishing an NHRI 38

Chapter 4: Models of NHRIs 42

4.1. The Paris Principles prescribe no single model 42

4.2. The commission model 43

4.3. The ombudsman model 44

4.4. The consultative council model 45

4.5. The research institute model 46

4.6. Institutions for specific groups or specific regions 47

Chapter 5: Legal independence 50

5.1. The nature of legal independence 50

5.2. Establishment by the national constitution 50

5.3. Establishment by an act of parliament 54

Chapter 6: The independence of NHRI members 57

6.1. Basic principles 57

6.2. Appointment 58

6.3. Term of appointment 73

6.4. Dismissal 73

6.5. Immunity from legal action 77

Chapter 7: Pluralism 81

Chapter 8: Adequate funding and resources 84

8.1. Adequate funding 84

8.2. Adequate resources 85

8.3. The budgeting process 86

8.4. A “low risk” process 87

8.5. An exclusively parliamentary process 87

8.6. Supplementary funding 89

8.7. Accountability for expenditure 92

Part II:
The responsibilities and functions of NHRIs 95

Chapter 9: Broad mandate – the promotion and protection of human rights 95

9.1. The core competence of NHRIs for human rights 95

9.2. Promotion and protection 97

9.3. Exclusions from jurisdiction 99

Chapter 10: Broad functions 102

Chapter 11: Adequate powers 112

11.1. Basic powers 112

11.2. Prosecutorial powers 114

11.3. Protection of victims and witnesses 116

Chapter 12: The advisory function of NHRIs 119

12.1. What it is 119

12.2. Initiating advice 122

12.3. Recipients of advice 122

12.4. Developing advice 123

12.5. The kind of advice 124

12.6. The response to advice 125

12.7. Following up advice 126

Chapter 13: The human rights education function of NHRIs 130

13.1. What it is 130

13.2. The three dimensions of human rights education 136

13.3. Effective human rights education 139

13.4. Human rights educators 142

Chapter 14: The monitoring function of NHRIs 143

14.1. What it is 143

14.2. Monitoring human rights situations 144

14.3. Monitoring places of detention 150

14.4. Monitoring elections 156

14.5. The monitoring process 157

Chapter 15: Complaint handling 162

15.1. What it is 162

15.2. What complaints can an NHRI accept? 165

15.3. Steps in complaint handling 172

15.4. Investigation of violations on the NHRI’s own initiative 186

15.5. Complaints staff 188

15.6. Complaints data and analysis 188

Chapter 16: NHRI intervention in court proceedings 192

16.1. What it is 192

16.2. Why intervene? 194

16.3. How intervention occurs 195

Chapter 17: NHRI cooperation and engagement with other national actors 200

17.1. The responsibility of cooperation and engagement 200

17.2. Relations with the parliament 202

17.3. Relations with the Government and the civil service 204

17.4. Relations with the judiciary 205

17.5. Relations with NGOs 207

17.6. Relations with the media 209

17.7. Relations with legal professional associations 212

17.8. Relations with academics and educational institutions 212

Chapter 18: Accountability 214

18.1. The Paris Principles 214

18.2. Legal accountability 214

18.3. Moral accountability 215

Part III:
NHRIs’ approach to human rights challenges 217

Chapter 19: National inquiries into systemic patterns of human rights violation 217

19.1. The Paris Principles and national inquiries 217

19.2. The nature of a national inquiry 218

19.3. Why hold a national inquiry? 222

19.4. Situations that lend themselves to a national inquiry process 223

19.5. Other factors in deciding whether to conduct a national inquiry 224

19.6. The results of national inquiries 227

Chapter 20: NHRIs and groups at particular risk of human rights violation 231

20.1. Priority concern for victims and those at particular risk of human rights
violation 231

20.2. Groups at risk 232

20.3. Why the rights of women and girls need special attention 234

20.4. NHRI mechanisms for groups at risk 240

Chapter 21: NHRIs in conflict situations 251

21.1. The contexts of NHRIs 251

21.2. Safety 251

21.3. Independence 253

21.4. During the conflict 254

21.5. After the conflict 257

Part IV:
NHRIs’ and the international community 260

Chapter 22: The international engagement of NHRIs 260

22.1. Introduction 260

22.2. The UN Charter-based system 264

22.3. The human rights treaty monitoring bodies 276

Chapter 23: International and regional cooperation among NHRIs 281

23.1. Introduction 281

23.2. International Coordinating Committee of National Institutions for the
Promotion and Protection of Human Rights 281

23.3. The Asia Pacific Forum of National Human Rights Institutions 286

Summary 293

Materials on NHRIs 302

Appendix 1:
The Paris Principles 304

Appendix 2:
ICC Sub-Committee on Accreditation – General Observations 307

Appendix 3:
Guidelines for the Structure and Functioning of National Institutions 1978 341

Appendix 4:
2014 Human Rights Council resolution on NHRIs 347

Appendix 5:
2013 General Assembly resolution on NHRIs 352

Appendix 6:
APF Guidelines for the Process of Establishing National Institutions in
accordance with the Paris Principles 357

Appendix 7:
Belgrade Principles on the Relationship between National Human Rights
Institutions and Parliaments 360

Appendix 8:
Kandy Program of Action: Cooperation between National Institutions and
Non-Government Organisations 365

Foreword

Respect for rights is the foundation on which strong, fair and inclusive communities are built.

Of course, many different individuals and groups – from both government and civil society – have a role to play to make this vision a reality. In recent decades, however, national human rights institutions (NHRIs) have played a leading role in putting human rights issues on the social and political agenda and driving long-term change.

Less than 20 NHRIs were in existence when the Paris Principles – the international benchmark for independent and effective NHRIs – were developed at a ground-breaking conference in 1991. Today, there are more than 100 NHRIs operating in all corners of the globe.

This rapid growth is recognition, among governments and the international community, of the enormous contribution that NHRIs make in their respective countries.

NHRIs occupy a unique place in the national human rights framework. They are established by the State but they operate independently from government. They have powers to monitor the human rights situation in the country, especially in relation to the most vulnerable and marginalised, and to review laws, policies and practices.

They serve as the conscience of a country, holding the government to account for its obligation to respect, protect and fulfil the human rights of all people within its borders.

NHRIs commonly have powers to investigate complaints of human rights abuses and to provide redress for victims. They deliver human rights education and training to different groups within the community to promote changes in attitudes and behaviour. And they contribute their independent analysis and recommendations to regional and international human rights mechanisms.

Independent and effective NHRIs can be powerful agents for change. However, they are still relatively young institutions and their unique nature, roles and functions are still being explored and understood.

This manual contributes to that process of discovery, drawing on the experiences of many of the NHRIs in the Asia Pacific region. It provides a thorough analysis of the Paris Principles and examines what the concept of independence means in practice for NHRIs. It also documents the ways in which NHRIs seek to undertake their functions in a wide range of settings, from stable democracies through to countries grappling with conflict and its aftermath.

I trust this manual will be a useful reference tool for those working in NHRIs, government, civil society and other settings. It provides a rich blend of theory and practice for all those who have an interest in strengthening NHRIs and supporting the important work they do to make human rights a reality for all people.

Kieren Fitzpatrick
Director

Asia Pacific Forum of National Human Rights Institutions

Acknowledgements

A Manual on National Human Rights Institutions is a publication of the Asia Pacific Forum of National Human Rights Institutions (APF).

This manual was written by Adjunct Professor Chris Sidoti, APF senior expert on National Human Rights Institutions.

The manual was enriched through materials, case studies and comments from representatives from APF member institutions, including: Ahmad Zia Langari (Afghanistan Independent Human Rights Commission); Ariunaa Tumurtogoo and Undrakh Ulziisumiya (Mongolian National Human Rights Commission); B.S. Nagar (National Human Rights Commission of India); Darren Dick (Australian Human Rights Commission); Liezl Parajas (Commission on Human Rights of the Philippines); Rafidah Yahya (Human Rights Commission of Malaysia); Ronza Almadbooh (Palestine Independent Human Rights Commission); Shreeram Adhikari (National Human Rights Commission of Nepal); and Win Mra (Myanmar Human Rights Commission).

The APF also thanks the following APF secretariat staff and consultants who contributed in their respective ways to the development of this manual: Ash Bowe, Clare Sidoti, Greg Heesom, James Iliffe, Kieren Fitzpatrick, Lisa Thompson, Pip Dargan and Suraina Pasha.

List of abbreviations

ACJ Advisory Council of Jurists

AHRC Australian Human Rights Commission

AIHRC Afghanistan Independent Human Rights Commission

APF Asia Pacific Forum of National Human Rights Institutions

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CPED International Convention for the Protection of All Persons from Enforced Disappearance

CRC Convention on the Rights of the Child

CRPD Convention on the Rights of Persons with Disabilities

CSO(s) civil society organisation(s)

CSW UN Commission on the Status of Women

ECOSOC UN Economic and Social Council

GO General Observation of the SCA

HRCM Human Rights Commission of the Maldives

HRDs human rights defenders

ICC International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICHR Palestine Independent Commission for Human Rights

Komnas HAM National Commission on Human Rights of Indonesia

NCHR National Centre for Human Rights of Jordan

NGO(s) non-governmental organisation(s)

NHRC National Human Rights Commission

NHRCK National Human Rights Commission of Korea

NHRI(s) national human rights institution(s)

NIRMS National Institutions and Regional Mechanisms Section, OHCHR

NPM(s) national preventive mechanism(s)

OHCHR Office of the High Commissioner for Human Rights

OP Operative Paragraph

OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

PHRJ Provedor for Human Rights and Justice of Timor Leste

PP Preambular Paragraph

SCA Sub-Committee on Accreditation of the ICC

SUHAKAM Human Rights Commission of Malaysia

UDHR Universal Declaration of Human Rights

UN United Nations

UNDP United Nations Development Programme

UNGA United Nations General Assembly

UNHRC United Nations Human Rights Council

UPR Universal Periodic Review

UNSC United Nations Security Council

VDPA Vienna Declaration and Programme of Action

Introduction for users

National human rights institutions (NHRIs) are official, independent legal institutions established by the State and exercising the powers of the State to promote and protect human rights. They are established by national constitutions or acts of legislatures, guaranteeing their independence from political direction or interference, both governmental and non-governmental. They have broad mandates for the promotion and protection of human rights. They comply with the international minimum standards for NHRIs, the Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (the Paris Principles).[1]

NHRIs are innovative institutions, occupying space within the State structure among the three primary institutions of government, parliament and judiciary. They lie between the State and civil society; they are State institutions but independent of government. Because they are a new type of State institution, their natures, roles and responsibilities are still being explored and developed. This manual draws from and contributes to that work of exploration and development.

The first NHRIs were established in the late 1970s and 1980s. In 1991, there were still fewer than 20 NHRIs. At their first international meeting in Paris that year, they adopted the Paris Principles, which were subsequently endorsed by the United Nations (UN) Commission on Human Rights and the United Nations General Assembly (UNGA).[2] The Paris Principles provide a benchmark, a set of minimum requirements, for NHRIs.

The growth in the numbers and effectiveness of NHRIs over the past 20 years can be traced directly to the strong endorsement they received from the Second World Conference on Human Rights in 1993: