HRP Panelists Look at Human Rights Institutions

BY DINA AWERBUCH

As part of a multi-year commitment to studying National Human Rights Institutions (NHRIs), Harvard Law School’s Human Rights Program invited Morten Kjaerum, Executive Director of the Danish Institute for Human Rights, to speak at the law school last Friday. The Director of the Human Rights Program, Professor Ryan Goodman, gave a brief background to NHRIs. Kjaerum – who is also Special Coordinator of the Committee on the Elimination of Racial Discrimination and served as President of the International Coordination Committee (ICC) for NHRIs – discussed the relatively recent emergence of NHRIs, their proper role in international human rights mechanisms and domestic implementation, and their efficacy.

NHRIs are independent government bodies headed by multiple commissioners and tasked with the protection and promotion of human rights. In the roughly eighty to one hundred countries that currently have them, NHRIs engage in a variety of activities, including auditing legislation and setting standards for domestic implementation of human rights laws. The bodies are guided by the Paris Principles, drafted in 1991 and adopted by the U.N. General Assembly in 1993. These Principles clarify mandates and secure the independence of NHRIs.

Kjaerum began by emphasizing two major developments that have occurred in the past twenty years: a dramatic domestication of human rights, and increased interaction between human rights law at the international level and implementation at the domestic level. Together, Kjaerum said, these two elements have established a completely new human rights agenda, which has been illustrated through the interaction between NHRIs and existing human rights mechanisms.

The agenda change began with the collapse of the Soviet Union. Democratization in Eastern European countries in the early 1990s prompted national self-reflection in many countries, raising the question of how to incorporate the provisions of human rights conventions into domestic processes. Kjaerum mentioned the end of apartheid in South Africa as an example of the kind of obstacles newly democratic states faced. In 1994, with thousands of white lawyers who had been raised and trained under apartheid, how could South Africa best create a culture of human rights?

After the Paris Principles were adopted, in 1996 NHRIs were given permission to address the U.N. Commission on Human Rights about national mechanisms. However, the NHRIs faced the dilemma of having to choose between government seats or non-government seats before the Commission. In 1998, the Commission granted permission to NHRIs to have their own seats and identify themselves as independent institutions. NHRIs continued to campaign for greater involvement and influence over international mechanisms, until in 2005 the Commission drafted a resolution for the chair to develop mandates for NHRIs to participate in all aspects of international mechanisms. The NHRIs lost some ground, however, when later that year the Commission was dismantled and replaced by the Human Rights Council.

NHRIs continued to evolve, developing a unique accreditation system through the International Coordinating Committee of National Institutes for the Promotion and Protection of Human Rights (ICC), that allowed them to de-accredit institutions that do not perform well (a power that Kjaerum said was mostly used as a threat to heads of states). NHRIs developed a network to exercise formal and informal control mechanisms.

Last year, these developments were brought forward to the new Human Rights Council and negotiations began on the role that NHRIs should play. On June 18, 2007, the Council adopted a resolution on institution building that established a new complaint procedure.

Kjaerum said that NHRIs were satisfied with the resolution, as it allows for active participation of NHRIs, including nominating individuals to special procedures and other bodies. According to Kjaerum, this puts the institutions on much firmer ground.

The resolution also gave NHRIs a role in the new Universal Periodic Review mechanism that the Council established. Kjaerum said that NHRIs will be active partners in the process, with their special understanding of concerns on the ground. The NHRIs can both evaluate governmental reports, and expose biased procedures in the Human Rights Council.

NHRIs can also be focal points for assisting governments and applying pressure in the implementation of recommendations. Thus, the NHRIs serve as a link between the Council and the domestic process. Kjaerum noted that from his experience when he began serving on the Committee on the Elimination of Racial Discrimination in 2002, he learned that treaty bodies at the time gave very broad and vague recommendations.

Now, recommendations have become much more detailed, and NHRI participation in a treaty body’s examination can help create a sense of ownership of the recommendations. Kjaerum clarified, however, that while in some countries the NHRI is perceived as the appropriate body to perform reporting duties, in fact the proper role for an NHRI is only to provide supplementary information.

Kjaerum concluded by asking whether the NHRIs actually have any impact. He acknowledged that indicators on human rights development are very weak, and NHRIs still have to learn what interventions work.

However, “something has really worked globally,” Kjaerum said. “You have to ask yourself: would I rather live here today than 20 years ago?” Kjaerum said that while there are some exceptions, in most places you would answer “yes.” While there is still a lot of work, Kjaerum said that domestication of human rights has a new forceful agenda that will move us forward even more.

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