Holding the line on the Paris Principles

The Principles are the lowest common denominator, not benchmarks, for NHRIs

THIS week will see the arrival of National Human Rights Institutions (NHRIs) at the 59th session of the CHR. As in previous years the Australians are proposing a resolution on NHRIs.

However, it is evident that this year's Australian draft resolution is making too many concessions that will not enhance the application of the Paris Principles to NHRIs. 

In the draft the Australians state, "Recognizing that it is the prerogative of each State to choose for the establishment of a national institution, the legal framework that is best suited to its particular needs…" The Paris Principles hold that NHRIs are best when established as constitutional bodies or through legislation. Clearly, bodies set up by executive fiat are not considered appropriate.

The Australian draft further holds, "…the continued importance of the Paris Principles, recognizes the value of further strengthening their application…." In fact even this is a marked retreat from last year's Australian formulation which reads as, "...Recognises, ten years after their formulation, the potential value of further clarification of the application of these Principles." Clearly the bugles are sounding the retreat.

The General Assembly in its resolution 48/134 of 20 December 1993 adopted the Paris Principles Relating to the Status of National Institutions. The Paris Principles spelt out the minimum guidelines on the competence and responsibilities, composition and guarantees of independence and pluralism, methods of operation and additional principles concerning the status of commissions with quasi-jurisdictional competence.

It is evident that the slippage in Canberra is also creating international fallout.  This development comes in the wake of the abolition of the post of the Special Advisor to the High Commissioner for Human Rights on National Human Rights Institutions. It is unclear at present whether NHRIs will be given the attention at the OHCHR that they earlier enjoyed.

In the conclusions of the eleventh workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific region held in Islamabad, Pakistan in February 2003, a new emphasis was placed on national protection systems,  "taking note of the report of the Secretary-General on: 'Strengthening the United Nations: an agenda for further change', in which he states that the emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should be a principle objective of the organization; "

However, the OHCHR made a major concession when it refused to contest "Encouraging United Nations Country Teams to support the implementation of activities at country level under the Tehran Framework and the strengthening of national human rights capacities, at the request of Member States;  (our emphasis) Evidently states were clawing back the ground they had lost to norms of international accountability.

The International Co-ordinating Committee Of National Institutions (ICCNI) can offer little help in assessing NHRI compliance with the Paris Principles.

The ICCNI is composed of institutions such as the Moroccan and Algerian NHRI which barely exemplify independence. 

Existing NHRIs in Europe are little better. National institutions like the Danish Centre for Human Rights are essentially policy institutes and not mandated to intervene in individual cases. Regardless, the Danish Centre for Human Rights was found to be prickly by the new government in Copenhagen. That the German government followed the model of the Danish Centre for Human Rights is disturbing. These fears were reinforced when the first director was eased out when he started to look at Germany's domestic human rights record.

Since the adoption of the Paris Principles, a number of governments all over the world have established NHRIs. The minimal guarantees contained in the Paris Principles have been glorified as high standards. Critical evaluations of national institutions by NGOs in the last decade have uncovered the inadequacies of the institutions and by implication, the principles that govern them. It is time that the relevance of the Paris Principles is reexamined. The gaps in the Paris Principles are only too apparent.

One of the responsibilities enumerated in the Paris Principles is: "To promote and ensure the harmonisation of national legislation, regulations and practices with international human rights instruments to which the State is a party, and their effective implementation".

Such a restrictive mandate for NHRIs is regressive from the perspective of international customary law. For example, Malaysia, which has established a National Human Rights Commission, has not ratified key human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (IESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The mandates of NHRIs should not be limited to monitoring compliance with treaty obligations; the corpus of international human rights law should be considered.

The Paris Principles are also not sufficiently clear regarding the "quasi-jurisdictional competence" of NHRIs.

While the Paris Principles recommend, "a national institution may be authorized to hear and consider complaints and petitions concerning individual situations", it is silent on the powers of such national institutions. Although NHRIs cannot be a substitute for - nor should they diminish the value of - the existing constitutional and other safeguards for the protection of human rights, some NHRIs like the Indian Commission have been given the powers of a civil court.

Moreover, the Paris Principles do not contain any non-derogable standards. Some NHRIs, according to their statute/ordinance, are barred from inquiring into abuses by armed forces. The Paris Principles are silent on these issues. Moreover, some NHRIs cannot take suo motu action.

An examination of NHRIs and their compliance with the Paris Principles could form part of the report of the Secretary General and could be an effective way of complementing the work of national institutions.

Unless the Paris Principles are revisited and strengthened in the light of these experiences, national human rights institutions will not achieve their objectives.