A Manual on National Human Rights Institutions Note

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 © Copyright Asia Pacific Forum of National Human Rights Institutions May 2015 (updated May 2018) 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 Credits United Nations photographs are the property of the United Nations, which holds all rights in connection with their usage. Cover photographs Left: Participants on The Decision is Yours program. Photo by the National Human Rights Committee of Qatar. Centre: Staff of the National Human Rights Commission of Nepal talk with the families of victims of gross human rights violations. Photo by the National Human Rights Commission of Nepal. Bottom: Staff from the Ombudsman of Samoa. Photo by Steven Percival. Contents Foreword v Acknowledgments vi List of abbreviations vii Introduction for users 1 Part I NHRIs and the Paris Principles 3 Chapter 1: The origins and development of NHRIs 4 1.1. State obligations under international human rights law 4 1.2. Domestic implementation and monitoring mechanisms 5 1.3. Early encouragement of NHRIs 6 1.4. The Paris workshop and the Paris Principles 7 1.5. Vienna Declaration and Programme of Action 8 1.6. Regular resolutions on NHRIs by UN bodies 9 1.7. The global spread of NHRIs 9 Chapter 2: The nature and concept of NHRIs 11 2.1. Defining NHRIs 11 2.2. NHRIs are State institutions, not NGOs 12 2.3. NHRIs are unique State institutions 12 Chapter 3: The Paris Principles 16 3.1. The Paris workshop of October 1991 16 3.2. The Paris Principles 17 3.3. Independence 18 3.4. Other requirements 21 3.5. Implied responsibilities 23 3.6. The importance of compliance with the Paris Principles 26 3.7. Establishing an NHRI 26 Chapter 4: Models of NHRIs 29 4.1. The Paris Principles prescribe no single model 29 4.2. The commission model 30 4.3. The ombudsman model 31 4.4. The consultative council model 32 4.5. The research institute model 33 4.6. Institutions for specific groups or specific regions 34 Chapter 5: Legal independence 37 5.1. The nature of legal independence 37 5.2. Establishment by the national constitution 37 5.3. Establishment by an act of parliament 41 i A Manual on National Human Rights Institutions Chapter 6: The independence of NHRI members 43 6.1. Basic principles 43 6.2. Appointment 44 6.3. Term of appointment 58 6.4. Dismissal 58 6.5. Immunity from legal action 61 Chapter 7: Pluralism 65 Chapter 8: Adequate funding and resources 69 8.1. Adequate funding 69 8.2. Adequate resources 70 8.3. The budgeting process 71 8.4. A “low risk” process 71 8.5. An exclusively parliamentary process 72 8.6. Supplementary funding 74 8.7. Accountability for expenditure 78 Part II The responsibilities and functions of NHRIs 81 Chapter 9: Broad mandate – the promotion and protection of human rights 82 9.1. The core competence of NHRIs for human rights 82 9.2. Promotion and protection 84 9.3. Exclusions from jurisdiction 86 Chapter 10: Broad functions 89 Chapter 11: Adequate powers 98 11.1. Basic powers 98 11.2. Prosecutorial powers 100 11.3. Protection of victims and witnesses 102 Chapter 12: The advisory function of NHRIs 105 12.1. What it is 105 12.2. Initiating advice 108 12.3. Recipients of advice 109 12.4. Developing advice 109 12.5. The kind of advice 110 12.6. The response to advice 111 12.7. Following up advice 112 Chapter 13: The human rights education function of NHRIs 116 13.1. What it is 116 13.2. The three dimensions of human rights education 122 13.3. Effective human rights education 127 13.4. Human rights educators 129 ii Chapter 14: The monitoring function of NHRIs 131 14.1. What it is 131 14.2. Monitoring human rights situations 132 14.3. Monitoring places of detention 138 14.4. Monitoring elections 144 14.5. The monitoring process 145 Chapter 15: Complaint handling 151 15.1. What it is 151 15.2. What complaints can an NHRI accept? 153 15.3. Steps in complaint handling 160 15.4. Investigation of violations on the NHRI’s own initiative 175 15.5. Complaints staff 177 15.6. Complaints data and analysis 177 Chapter 16: NHRI intervention in court proceedings 181 16.1. What it is 181 16.2. Why intervene? 183 16.3. How intervention occurs 184 Chapter 17: NHRI cooperation and engagement with other national actors 188 17.1. The responsibility of cooperation and engagement 188 17.2. Relations with the parliament 190 17.3. Relations with the Government and the civil service 192 17.4. Relations with the judiciary 194 17.5. Relations with NGOs 195 17.6. Relations with the media 197 17.7. Relations with legal professional associations 200 17.8. Relations with academics and educational institutions 201 Chapter 18: Accountability 202 18.1. The Paris Principles 202 18.2. Legal accountability 202 18.3. Moral accountability 203 Part III NHRIs’ approach to human rights challenges 205 Chapter 19: National inquiries into systemic patterns of human rights violation 206 19.1. The Paris Principles and national inquiries 206 19.2. The nature of a national inquiry 207 19.3. Why hold a national inquiry? 210 19.4. Situations that lend themselves to a national inquiry process 211 19.5. Other factors in deciding whether to conduct a national inquiry 213 19.6. The results of national inquiries 215 iii A Manual on National Human Rights Institutions Chapter 20: NHRIs and groups at particular risk of human rights violation 219 20.1. Priority concern for victims and those at particular risk of human rights violation 219 20.2. Groups at risk 220 20.3. Why the rights of women and girls need special attention 222 20.4. NHRI mechanisms for groups at risk 233 Chapter 21: NHRIs in conflict situations 247 21.1. The contexts of NHRIs 247 21.2. Safety 248 21.3. Independence 250 21.4. During the conflict 250 21.5. After the conflict 254 Part IV NHRIs and the international community 257 Chapter 22: The international engagement of NHRIs 258 22.1. Introduction 258 22.2. The UN Charter-based system 262 22.3. The human rights treaty monitoring bodies 274 22.4. The 2030 Agenda for Sustainable Development and the Sustainable Development Goals 277 Chapter 23: International and regional cooperation among NHRIs 285 23.1. Introduction 285 23.2. International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights 285 23.4. Asia Pacific Forum of National Human Rights Institutions 289 Summary 297 Materials on NHRIs 304 Appendices 1. The Paris Principles 306 2. GANHRI Sub-Committee on Accreditation – General Observations 309 3. Guidelines for the Structure and Functioning of National Institutions 1978 343 4. 2014 Human Rights Council resolution on NHRIs 348 5. 2013 General Assembly resolution on NHRIs 352 6. APF Guidelines for the Process of Establishing National Institutions in accordance with the Paris Principles 356 7. Belgrade Principles on the Relationship between National Human Rights Institutions and Parliaments 359 8. Kandy Program of Action: Cooperation between National Institutions and Non-Governmental Organisations 363 9. Gender mainstreaming resources 368 iv 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.

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