National Human Rights Institutions: Standard-Setting and Achievements

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National Human Rights Institutions: Standard-Setting and Achievements

in Human Rights in Development Online

References

' The Paris Principles were defined at the International Workshop on National Institutions for the Promotion and Protection of Human Rights, Paris, 7-9 October 1991 (E/CN.4/1992/43 of 16 December 1991 They were further codified by the United Nations Commission on Human Rights in Resolution 1992/54, 1992, and in General Assembly resolution 48/134, 1993. They are included as an Annex to the United Nations Handbook on the Establishment and Strengthening of National Institutions, Professional Training Series No. 4, United Nations Centre for Human Rights, 1995 (hereinafter UN Handbook, 1995). 2 See for example Brian Burdekin, Human Rights Commissions, Workshop in Paris, 2"1 European Meeting ofNational Institutions, 1991, pp.103-I 13; Morten Kjaerum, Council of Europe and Danish Centre for Human Rights, January 1997, pp. 41-57. J Commission on Human Rights Resolution 1992/54, 1992, General Assembly Resolution 48/134, 1993, UN Handbook, 1995.

4 The UN Handbook, para 41, p. 7 enlarges the Paris Principles and includes the ombudsmen and similar institutions in the concept of national institutions. Although the arguments for widening the concept seem logical, because of similarities in complaints handling procedures, in this context it would be more meaningful to keep the two concepts distinct. 5 Most European ombudsman institutions focus on the legality of administrative proceedings in the state administration, or on issues such as consumer protection or other specialised areas, in combination with complaints handling. See for example the International Ombudsman Yearbook, Linda C. Reif (ed.), The International Ombudsmann Yearbook, vol. 1, 1997, Kluwer Law International. 6 Experience shows that there is a strong relationship between a thoroughly considered institutional framework and the output and impact of an institution. See for example David Korten, Getting to the 2 I" Century. Voluntary Action and the Global Agenda, Connecticut: Kumarian press, 1990; Kristina Hedlund Thulin, Evaluation of the Legal Information Centre for Human Rights in Tallinn, Estonia, Danish Centre for Human Rights, 1996; Birgit Lindsnaes, "Human Rights and Capacity Building Experiences from Malawi and Estonia" (in Danish), i Den Ny Verden, No. 2, Center for Development Research, 1998.

' ECOSOC Resolution 2/9 of 21 June 1946. 8 ECOSOC Resolution 772 B (XXX) of 25 July 1960. 9 St/HR/SER.A/2, chapter V. 10 United Nations Action in the Field of Human Rights, United Nations, 1988, para. 83ff. " A/RES/33/46 of 14 December 1978.

12A/RES/34/49 of 23 November 1979. " Examples hereof are A/36/440 (1981) and A/38/416 (1983). 14 A/RES/36/134 of 14 December 1981. 1 . 15 The Declaration reads "... and considering that all human rights and fundamental freedoms are indivisible and interdependent and that, in order to promote development, equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights", United Nations General Assembly Resolution 41/128 of 4 December 1986. 'fi "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." " The Proclamation of Teheran by the International Conference on Human Rights in May 1968 expressed a similar notion: "Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible" (section 13).

'e A/36/440 of 9 October 1981 and A/38/416 of 24 October 1983. " The resolutions from 1986 to 1991 stress that the issue should be given high priority, that funding and technical assistance should be ensured, and that the UN should play "a catalytic role in assisting the development of national human rights institutions by acting as a clearing house for the exchange of information and experience". In return, the original intention that national institutions should serve as focal points for the dissemination of UN materials, is maintained. The need for a handbook on national institutions, based on and supplementing the demand for publication and dissemination of the

Secretary Generals' reports, is also voiced; Commission on Human Rights Resolution 1988/72 of 10 March 1988 and later resolutions by the General Assembly and the Commission. 21 See Human Rights Commission Resolutions 1989/52 of 7 March 1989 and 1991 /27 of 5 March 1991. 21 Since the Vienna Conference in 1993 a number of regional and international workshops of human rights institutions and ombudsmen have taken place. Examples hereof are the First and Second European meetings of National Institutions (Strasbourg, 1994; Copenhagen, 1997); the First and Second Conferences of African National Human Rights Institutions (Cameroon, 1996; South Africa, 1998); the First and Second Asia-Pacific Regional Workshops (Australia, 1996; New Delhi, 1997); Human Dimension Seminar on Ombudsman and National Institutions (Poland, 1998); the Third International Workshop on Ombudsman and National Human Rights Institutions (Latvia, 1997); the First Meeting of Mediterranean National Institutions (Marrakesh, 1998), and the Second, Third and Fourth International Workshops ofNational Human Rights Institutions (Tunis, 1993; Manila, 1995; Mexico, 1997). zz About 35 countries with an almost equal distribution between developed and developing countries were represented. The dominance of European and Latin American countries is striking, with only five Asia-Pacific countries (Australia, New Zealand, Japan, Philippines and Thailand) present as well as five from Sub-Saharan Africa (Benin, Uganda, Senegal, Togo and Namibia). The seminar had observers from the European Court as well as from the Inter-American Court and Commission, but none from the African Commission on Human and Peoples Rights. 23 Human Rights Commission Resolution 1992/54 of 3 March 1992. The paper on 'Human Rights Commissions' (see note 2 above) was a significant contribution to the development of the Principles as well as to later United Nations initiatives in the field. 24 The headline in the original Paris Principles, contained in the original report of the workshop (E/CN.4/1992/43), reads quasi-jurisdictiona! rather than quasiyudicial. This creates a sense that

something went amiss in the process, given that the contents of the section in the Paris Principles correspond to the definition of quasi-judicial, in "describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise on an executive discretion rather than in the application of the law" (The Concise Dictionary of Law, Oxford University Press, 1986). This would have been consistent with the text in the report which speaks solely of "quasi-judicial powers" (table of contents and sec. 188-200) and of "jurisdiction" - but no reference is found to the term "quasi- jurisdictional" The power of precedence, however, is strong, since the headline is uncritically reproduced in different versions of the Principles, as found both in the a Annex to Human Rights Commission Resolution 1992/54 of 3 March 1992 affirming the Paris Principles, in the 1995 United Nations Handbook and in the United Nations Fact Sheet No. 19 on National Institutions for the Promotion and Protection of Human Rights from 1993. 25 See para. 18, 36, 74 including section C, Co-operation, Development and Strengthening Human Rights in the Vienna Declaration and Programme of Action, 1993. 2. Commission on Human Rights Resolution 1997/40. National Human Rights Commissions - National and International! Perspectives. Prepared for the Commonwealth Secretariat by the Special Adviser to the United Nations High Commissioner for Human Rights on National Institutions, Brian Burdekin, undated, p. 8. 27 Ibid. The Office focuses on holding regional seminars and giving advice on national establishment. A Special Adviser to the High Commissioner of Human Rights gives technical assistance to governments on draft legislation, institutional set-up and counselling of national institutions, including ombudsmen. Funding is provided by the UN Voluntary Fund. In 1997, the total expenditures of the Fund were USD 5.6 mn. on these activities. ECOSOC E/CN.4/1998/92. March 1998. reports of the Secretary General E/CN.4/1995/48, E/CN.4/1996/48, E/CN.4/1997/41 and E/CN.4/1998/47, and resolutions from the UN Human Rights Commission 1995/50, 1996/50, 1997/40 and 1998/55.

See UN Human Rights Commission 1998 Resolution 1998/55 and report of the Secretary-General concerning the Participation ofNational Institutions in UN meetings E7CN.4/1998/47. '° The French Commission was established as a consultative body to the Government by initiative of René Cassin, judicial adviser of General de Gaulle. In 1984 the Commission was reactivated and in 1993 the Commission achieved 'independent' status by constitutional decree. See the Annual Report, Republique Francaise, Premier Ministre, Commission Nationale Consultative des Droits de L'Homme, 1997. 3' According to "Report of the chairman of the Co-ordinating Committee of African National Institutions for the Second Conference of African National Institutions", by Dr. Solomon Nfor Gwei, Durban, South Africa, 1-3 July 1998 there are about 20 African national institutions. 32 Commonwealth of Independent States of the former Soviet Union.

" LJN Handbook, Annex, 1992/54. J4 Establishment by constitution also depends on traditions for changing and amending constitutions. In Denmark, for example, the Parliament is very hesitant to make constitutional changes. The Constitution was adopted in 1849 and amended most recently in 1953. 35 Executive Order no. 163 of 5 May 1987, art. Xlll section 17 of the Constitution of the Philippines. '6 Despite the fact that the Mexican Commission is established as a legally independent entity, it is structurally located as a department in the Ministry of Interior. Human Rights Commissions, Workshop in Paris, Brian Burdekin, 1991, p. 129. See also the "Law on the National Commission for Human Rights" (23 June 1992), temporary articles, art. 4, which states "[...1 the national commission for human rights [...J is a semi-autonomous agency of the Ministry of Interior." " In the (lN Handbook on the Establishment and Strengthening of National Institutions, 1995, para. 39, the legal conditions for establishment includes the wording'by law or decree'.

38 Lis Dhundale and Peter Vedel Kessing, Report of missions to Kazakstan and Kyrgyzstan, Danish Centre for Human Rights, OSCE/ODHIR, 1998. " The Americas Watch Committee, El Salvador reports, January, 1984, August, 1984, March, 1985, quoted in the Human Rights lnternet/Directory. 15.004. For an elaboration of the human rights violations in El Salvador, see Human Rights Watch Americas: El Salvador - Darkening Horizons: Human Rights on the Eve of the March 1994 Elections, vol VI, no 4, March 1994. 40 Ibid. " Amnesty International, Press Release, 4 June, 1998. 42 "Making human rights treaty obligations a reality at the national level: Identifying and working with new actors and partners", Anne Gallagher in Alston and Crawford (eds.), The Future of the United Nations Human Rights Treaty System (forthcoming). 43 Human Rights Newsletter, vol 1, No 3, 1998; National Plan for 1998; Briefs on the National Human Rights Commission ofNigeria; Nigerian Human Rights Commission. Training Workshop for Lower Court Judges in Cooperation with Civil Liberties Organisation and The Danish Centre for Human Rights, 1998. 44 Amnesty International, Press Release, 4 June 1998.

45 This Council is appointed under the governance' of the former dictator Suharto and includes representatives of the military. Politiken, Newspaper, 12 and 18 November, 1998. 46 The President's recent announcement accepting the Commission's request to replace twelve members without the president's approval supports this argument. There are indications that the military government's attention to human rights is due to pressure from intergovernmental bodies such as United Nations and the European Union, and embassies located in the country. The Indonesian National Plan of Action on Human Rights, 1998-2003, June 1998; Report from Conference about human rights, European Union, Indonesia, Diego Bang, the Danish Centre for Human Rights, October, 1998, pp. 28-29. 47 run Handbook, para. 78 and 79. In this aspect the UN Handbook strengthens the criteria agreed upon in the Paris Principles. 48 Ibid.

too strict criteria for professional background required for recruitment has a resource aspect. The fact that three commissioners mustbe former judges is hindering the establishment of national institutions in some Indian states because of the non-availability of judges. National Human Rights Commission, India, Annual Report 1996-97, p. 57. Similarly, in many developing countries there is a tremendous lack of jurists and judges. so The Protection of Human Rights Act, National Human Rights Commission, India, 1993. 51 Ibid. s� A number of commissions allow for academic work only outside the institution. 53 Mandate of the Danish Centre for Human Rights, 1987, revised in 1998. sa New Zealand, Human Rights Commission Act, 1977. ss Americas Watch Committee, El Salvador report, 1982.

56 Amnesty International Report, Human Rights Violations Under the Civilian Government, 1989. Law on the Latvian National Human Rights Office, 1995. 58 Activity Report/Newsletter, January-March, 1998; p. 6; Activity Report, April-June,1998, pp. 2 and 4. s9 UN Handbook, sec. 80, 1995. Paris Principles, UN Handbook, 1995.

61 lbid. 62 E/1992/22. General Assembly Resolution 48/134, 20 December, 1993. 6 Second and Third Annual Reports, Commission on Human Rights and Administrative Justice-Ghana, 1995 and 1996.

B. Pityana., National Institutions at work: The case of the South African Human Rights Commission, British Council Seminar, Belfast, May 1998. ss Human Rights and Equal Opportunity Commission, Australia, Annual Report 1997-98, pp. 22, 160 and 167. Annual Report, 1996, Ghana. 67 The Commission has nine commissioners (five full time, two vacancies and two part time) while there seems to be a lack of staff. In this context it might be relevant to examine the distribution of resources between commissioners and staff. This discussion has taken place in Ghana, where, for lack of resources, the Consultative Assembly decided in 1992 to fuse the then existing ombudsman institution into the now established national institution. Working plan of the SAHRC 1998/99, The Commission on Human Rights and Administrative Justice in Ghana, Emile Francis Short, West African Human Rights Forum, Dakar 16-18 April, 1998. 68 Annual Report 1997, New Zealand, p. 7. 69 The population figures are from the World Fact Book, 1997. USA Central Intelligence Agency, Washington DC, http://ciapubs.bilkent.edu.tr/publications/factbook.

70 See Anne Gallagher, op. cii., who rightly points out that "the functions commonly assigned to human rights institutions- clearly indicate the links which exist-or should exist-between these bodies and the human rights treaty system."

71 Brian Burdekin, Human Rights Commission, Workshop in Paris, 1991, p. 120; E.V.O. Dankwa, Promotion of Human Rights and National Institutions, An Example from Ghana, July-September, 1997. '2 Brian Burdekin, National Human Rights Commissions - National and International Perspectives. Prepared for the Commonwealth Secretariat by the Special Adviser to the United Nations High Commissioner for Human Rights on National Institutions, undated, unpublished, p. 3. " Annual Report ojthe Human Rights Commission jor the year ended 31 March 1979, New Zealand, p. 3. " In Denmark, as in other European countries, the power of the ombudsman is only advisory. However, the customary practice of the parliament and other state institutions is to follow the recommendations of the ombudsman. 'S Emile Francis Short, The Commission on Human Rights and Administrative Justice in Ghana, April, 1998. '6 National Human Rights Commission, India, Annual Report 1996-97, p. 60.

77 Letter from Justice V.S. Malimath, Member of the Indian National Human Rights Commission, 28 December 1998. 78 Indian National Human Rights Commission, Annual Report 1996-97. '9 The Protection of Human Rights Act, National Human Rights Commission, India,1993, chapter 111, art. 13, 1. 8° Letter from Justice V.S. Malimath, Annual Report 1996-97. " Ugandan Constitution, 1995, section 53(2) and 53(3). :2 Human Rights and Equal Opportunity Commission, Australia, Annual Report 1989-90, p. 35. 8J Human Rights and Equal Opportunity Commission, Australia, AnnualReport 1997-98, pp. 24, 70 and 71.

84 Ibid, p. 71. as National Human Rights Commission, India, Annual Report 1996-97, p. 80. 86 The Canadian Human Rights Act, RSC., 1985, c. H-6, June 1998, art. 48 (I ) and The New Zealand Human Rights Act 1993. 87 Human Rights and the Canadian Human Rights Commission, Eguality, 1996, p. 17; Annual Report 1997, p. 13. sa Ibid, p. 13.

.9 The Canadian Human Rights Act, R.S. C., 1985, c. H-6. June 1998 is by one author described as 'purely domestic legislation' but with expressed clear recognition of the relevance of international instruments. Brian Burdekin, Human Rights Commissions, Workshop in Paris, 1991, p. 114. '° Human Rights and Equal Opportunity Commission, Australia, Annual Report 1989-90, p. 29. 91 Section 73 of the Human Rights Act 1993 provides measures to ensure equality. 92 Canadian Human Rights Act, RS.Co, 1985, c. H-6. June, 1998. " In the jurisdiction of the Australian Commission, nineteen grounds for resolving complaints of discrimination in employment and occupation are outlined. Human Rights and Equal Opportunity

Commission, Annual Report 1989-90, p. 29. The powers of the New Zealand Commission are set out in the Human Rights Act 1993. After its establishment in 1978, the Commission emphasized discrimination against the individual citizen and women. The Commission in its first annual report emphasized that the women's movement recommended the establishment of the body. Annual Report of the Human Rights Commission for the year ended March 1979, New Zealand, p. 4. 94 Canadian Human Rights Act, R.S., 1985, c. H-6. July, 1996. 9s Canadian Human Rights Commission, Celebrating our Progress, Facing our Future, 1998, p. 3. 96 bid. p. 3. 97 Human Rights and the Canadian Human Rights Commission, Equality, 1996, p. 16. 98 Ibid. p. 16. 99 Ibid.p.17. bran Burdekin, Human Rights Commissions, Workshop Paris, 1991, p. I 10.

101 ]bid102 Ibid, pp. 124-125. '0' Human Rights and Equal Opportunity Commission, Australia, Annual Report 1989-90, p. 26. 104 Human Rights and Equal Opportunity Commission, Australia, Annual Report 1997-98, pp. 25-26. 105 Report ofthe Expert Committee on Childrens'Law under the Ministry ofJustice, (Børnelovsudvalgets Betcenkning) no. 1350, Copenhagen, 1997.

106 "Note concerning administrative detention of asylum seekers from Eastern Europe" (in Danish), The Danish Centre for Human Rights, March 1995; see also Kim Kjaer in Ugeskrift for Retsvæsen, 94B, p. 457ff. Law no. 282 of 14 June 1995. Law no. 473 of 1 July 1998.

109 letter from the Executive Secretary, Mr. Ricardo Camara, Mexico City, March 2, 1999. National Commission for Human Rights, Annual Report ofActivities, Mexico City, May 1997-May 1998. Please note that quotations are taken from a synthesis and that the notes therefore do not coincide with those in the final Annual Report. On Mexican migrant Women; Elderly People; Latin American laws on the rights of the indigenous peoples in 16 countries; draft bill for setting up a Centre for victims of Crime; draft bill on Reforms to the Penal Code for the Federal District in matters of Common Law; Comparative analysis of local and international legislation on women and children. "2 Ibid. II Ibid. 114 Out of the 48 public employees, 22 were members of the Federal Judicial Police, 12 of the State judicial Police, six military personnel, three of the Federal Highway Police, two of the Prosecutor's office for State law, two from the Institute for Social Security and a former Mayor. Ibid. 115 Ibid.

"6 Mexican National Commission for Rights Commission, Annual Report May 1997 -May 1998, Mexico City 1998. 117 Ibid. 118 Recommendation 1 /98 sent to Governor of the State of Chiapas and to the Attorney General of the Republic, letter from the Executive Secretary, and Annual report. 119 Ibid. 120 In 1996-97, the Indian Commission completed 16,823 complaints. Out of 6,394 complaints considered, 888 were on custody and 1,643 on the police. The remaining complaints were unfounded, withdrawn, or not treated because of lack of evidence. An example of an outcome is that out of 259 cases registered against members of the border security force and the army, 81 were punished, including 29 officers. The Commission also drafts laws (such as a model prison bill), carries out education, and, in relation to complaints handling, has the power of a court. op. cit., p. 12 and p. 136. Which is particularly dealt with by the National Commissions for Minorities, for Scheduled Castes and Scheduled Tribes, and Women, all members of the Indian National Human Rights Commission. '22 Regional and national courts are increasingly dealing with this type of cases. See Asbjern Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social and Cultural Rights, A Textbook, Martinus Nijhoff Publishers, 1995.

123 The Annual Report of the National Human Rights Commission of India mainly emphasises problems faced and makes recommendations to the central and state governments. Thus, it does not emphasize results obtained. 'z" Andra Pradesh Supreme Court, 1993-ISC645. "Article 45 of the Constitution, directing the providing of free and compulsory education for all of the children of India until completion of the age of 14 years, [must] be treated as an enforceable fundamental right." National Human Rights Commission, India, Annual Report 1996/97, p. 38. tamil Nadu Supreme Court, AIR 1997 SC 699. Ibid, p. 38. 12. Letter from Justice V.S.Malimath, ibid. 127 Sections 24, 26, 27, 29, 28 ( 1 c), 35 (2e) of the Constitution of the Republic of South Africa of I 996. 'ze Ibid, Section 184.

129 ThirdAnnual Report, Ghana, 1996. 130 Emile Francis Short, The Commission on Human Rights and Administrative Justice in Ghana, April 1998, p. 12.

131 Ibid, pp. 1-19.

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