Chapter Seven: Creating national institutions to implement and monitor the Convention
- Main page: Handbook for Parliamentarians
- Focal points
- Coordination mechanisms
- National human rights institutions
- Parliamentary oversight
- The courts and the role of the judiciary
NATIONAL HUMAN RIGHTS INSTITUTIONS
The relationship between the Convention and national human rights institutions
The Convention requires States to establish a framework, involving one or more independent mechanisms, to promote (e.g., through awareness-raising campaigns and public education), protect (e.g., by examining individual complaints and participating in litigation), and monitor (e.g., by reviewing legislation and examining the state of domestic implementation) implementation of the Convention. The Convention refers to a “framework” rather than a “national human rights institution.” However, in establishing such a framework, the State is to take into account the “principles relating to the status and functioning of national institutions for the protection and promotion of human rights,” as agreed by the United Nations General Assembly in 1993. These principles have become known as the “Paris Principles” (see below). Given this link, a national human rights institution is the most likely form that an independent “framework” would take in compliance with the national monitoring provisions under the Convention.
Types of national human rights institutions
The term “national human rights institution” has acquired a specific meaning. While the number and range of “institutions” concerned with human rights is large, and includes religious institutions, trade unions, the mass media, NGOs, government departments, the courts and the legislature, the term “national human rights institution” refers to a body whose specific functions are to promote and protect human rights.
While no two institutions are exactly the same, all share some common attributes. They are often administrative in nature. Many also have quasi-judicial powers, such as in resolving disputes, although national human rights institutions are neither courts nor law-making bodies. As a rule, these institutions have ongoing, advisory authority in respect to human rights at the national and/or international level. They do their work either in a general way, through opinions and recommendations, or by considering and resolving complaints submitted by individuals or groups. In some countries, the Constitution provides for the establishment of a national human rights institution. More often, such institutions are created by legislation or decree. While many national institutions are attached to the executive branch of government in some way, the actual level of independence that they enjoy depends on a number of factors, including membership and the manner in which the institutions operate.
Most existing national institutions can be classified as belonging to one of two broad categories: “human rights commissions” and “ombudsmen.” Another less common, but no less important, variety are the “specialized” national institutions, which protect the rights of a particular group of individuals, such as persons with disabilities, ethnic and linguistic minorities, indigenous populations, children, refugees or women.
The Paris Principles
When designating or establishing a mechanism that meets the requirements of the Convention, States parties must take into account the principles relating to the status and functioning of national institutions that protect and promote human rights. An international workshop of national human rights institutions, held in Paris in 1991, first drafted these Principles, which were then adopted by the United Nations General Assembly in 1993.1 They are known as the “Paris Principles.”
THE PARIS PRINCIPLES IN DETAIL
The Paris Principles are a set of core minimum recommendations adopted by the United Nations General Assembly relating to the status and functioning of national institutions for the protection and promotion of human rights. Article 33 (2) of the Convention on the Rights of Persons with Disabilities requires States parties to take these principles into account when designating or establishing mechanisms to promote, protect and monitor implementation of the Convention. According to the Paris Principles, such mechanisms must:
- Be independent of the Government, with such independence guaranteed either by statutory law or constitutional provisions;
- Be pluralistic in their roles and membership;
- Have as broad a mandate as possible, capable, in the context of the Convention, of collectively promoting, protecting and monitoring the implementation of all aspects of the Convention through various means, including the ability to make recommendations and proposals concerning existing and proposed laws and policies;
- Have adequate powers of investigation, with the capacity to hear complaints and transmit them to the competent authorities;
- Be characterized by regular and effective functioning;
- Be adequately funded and not subject to financial control, which might affect their independence; and
- Be accessible to the general public and, in the context of the Convention, particularly to persons with disabilities, including women with disabilities and children with disabilities, and their representative organizations.
Potential functions of a national human rights institution
In addition to establishing the seven principles listed in the box above, which are aimed at creating independent and credible national human rights institutions, the Paris Principles also list a number of responsibilities that these institutions should assume. While national human rights institutions should have as broad a mandate as possible, specified either in the constitution or in legislation, the Paris Principles stipulate that these institutions should:
- Monitor the implementation of human rights obligations of the State party and report annually (at least);
- Report and make recommendations to the Government, either at the Government’s request or on its own volition, on human rights matters, including on legislation and administrative provisions, the violation of human rights, the overall human rights situation in the country and initiatives to improve the human rights situation;
- Promote harmonization of national law and practice with international human rights standards;
Encourage ratification of human rights treaties;
- Contribute to reports that States parties are required to submit to the United Nations treaty bodies on the implementation of human rights treaties;
- Cooperate with regional and United Nations human rights bodies as well as with human rights bodies of other States;
- Assist in the formulation of human rights education programmes; and
Raise public awareness about human rights and efforts to combat discrimination.
- Monitoring national law and practice
It is common for national institutions to have a mandate to ensure that national law conforms to human rights standards, as recommended by the Paris Principles. This can be achieved by examining existing laws, and by monitoring and commenting upon the development of new laws. A number of institutions dedicate resources to monitoring proposed legislation so that they might consider and, if necessary, comment upon compliance of the proposed law with human rights obligations. Depending on the degree of impact that a proposed law may have on human rights, national institutions might also raise public awareness so that individuals and organizations can, if they choose, make submissions to the Government.
Equally important is the role of national institutions in monitoring Government practices and policies to ensure that they comply with international obligations, national laws on the rights of persons with disabilities, including relevant case law, national human rights strategies or action plans, and any applicable codes of practice.
- Initiatives to improve the human rights situation within countries
Ideally, States will establish a national human rights action plan outlining the strategy or actions to be taken to implement obligations under human rights instruments. States will often consult the national human rights institution when developing these strategies or actions plans. Independent of the State’s national human rights action plan, the national human rights institution might develop its own plan to promote respect for human rights. In either case, appropriate government agencies and civil society should be consulted as these strategies are being drafted. The Convention stipulates that civil society, particularly persons with disabilities and their representative organizations, children with disabilities and individuals who care for persons with disabilities, should be involved in this process.
National institutions might also establish codes of practice that relate to certain rights in particular situations. For example, codes of practice may relate to: the application of a specific right or the elaboration of the specific steps needed to implement the right; the conduct of a particular government agency or a class of agencies; a particular type of public or private activity or class of activities; or a particular industry or profession. Given the regulatory nature of such codes, they must be established by law and will normally be adopted after wide consultations.
- Public inquiries, studies or reports
Although resource-intensive, conducting public enquiries or studies on particular issues can help promote respect for rights and raise public awareness. Such studies might be undertaken at the exclusive discretion of a national human rights institution, or launched by the Government, through, for example, an attorney general or rights-specific focal point, or as a result of a series of grievances that might have raised systemic issues. Institutions might also be empowered to undertake fact-finding missions that are either linked to the development of Government policies or to the conduct of judicial proceedings. A mandate to conduct inquiries and studies should be accompanied by powers to gather information and evidence needed to fulfil this function effectively. National human rights institutions lacking investigative powers will need some form of authority to gather information.
Article 35 of the Convention requires States parties to report periodically to the Committee on the Rights of Persons with Disabilities on measures taken to comply with their obligations under the Convention. The combined effect of articles 4 (3) (consultation with and involvement of persons with disabilities) and 35 (4) of the Convention means that States should consider preparing these reports in close consultation with persons with disabilities, including children with disabilities, and their representative organizations. National institutions can play a role in preparing reports and can facilitate consultation between civil society and the Government in the reporting process.
National institutions can also provide shadow reports, that is, alternative reports to those of the Government, particularly if the institution believes its submissions are not being taken into account adequately or appropriately in the Government’s report. Increasingly, treaty-monitoring bodies consult directly with representatives of national human rights institutions during the reporting process.
- Resolving disputes
Consistent with the recommendations made in the Paris Principles, a common function of national human rights institutions is to help resolve disputes concerning alleged violations of human rights. A mandate to help resolve disputes should also be accompanied by powers to gather information and evidence.
- Education and public awareness
The Paris Principles specifically recommend the promotion of human rights education programmes. It is essential that individuals, private entities and government entities know about human rights and the corresponding responsibilities if those rights are to be respected and effectively monitored. Programmes might need to be tailored to the needs of particular groups. For example, programmes targeting persons with disabilities should issue their material in accessible formats such as Braille, large print, plain language, close-captioning or accessible electronic formats.
PROTECTING RIGHTS IN INDIA
India’s institutional framework for protecting rights, including those of persons with disabilities, is necessarily somewhat complex, given that the country comprises 29 states and six centrally administered territories. In February 2006, the Ministry of Social Justice and Empowerment, which has central responsibility for disability policies within the Government, completed and adopted a National Policy for Persons with Disabilities (NPPD). The NPPD established an inter-ministerial body to coordinate matters relating to its implementation, made up of a Central Coordination Committee at the national level and State Coordination Committees at state levels. These committees coordinate various specialized institutions and agencies within India, including a National Rehabilitation Council and a National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities.
Prior to the adoption of the NPPD, a Commission for Persons with Disabilities was established under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995. The Commission’s responsibilities include monitoring the use of Government funds, coordinating the work of State Commissioners, and safeguarding the rights and services made available to persons with disabilities. The Commission is semi-judicial, enabling the Chief Commissioner to investigate allegations of the deprivation of rights and non-implementation of laws, call for hearings, receive evidence on oath and issue summonses, although the Commissioner cannot make binding decisions. The Commission therefore has a dual role of overseeing funds and monitoring laws.
India also has a National Human Rights Commission that can look into individual petitions, initiate proceedings in the Supreme Court of India (subject to limitations), intervene in proceedings involving allegations of human rights violations, pending approval of the court, review human rights-related law, including the Constitution, and conduct and promote research. The Commission was active in making recommendations to relevant ministries during the development of the National Policy for Persons with Disabilities and in advising the Government during negotiations on the Convention on the Rights of Persons with Disabilities.
National human rights institutions and complaints mechanisms
The Paris Principles call for national institutions to have adequate powers of investigation and the ability to hear complaints. Existing national institutions that assume the monitoring functions under the Convention might have to adjust their mediation and conciliation procedures in order to ensure that persons with disabilities and their representative organizations have access to the process. There are various methods by which such institutions can fulfil these roles, including:
- Mediation and conciliation
At the most basic level, many national human rights institutions help enforce the realization of rights by providing mediation and conciliation services. An aggrieved person can directly contact a conciliation or mediation officer of a national human rights institution to discuss his/her concerns. Such officers are asked to register the complaint and are often empowered to provide general advice on options available to the aggrieved person and, depending on the wishes of that person, to initiate communications with the other party involved in the dispute. This may include informal telephone or face-to-face discussions, although many national institutions do not accept anonymous or unsigned complaints. More often, the national institution will have to rely on more formal requests, such as written communications. Depending on the nature of the dispute and the outcome of initial discussions, a meeting of the parties involved might be organized during which the mediator or conciliator will attempt to resolve the matter.
National human rights institutions often keep records of mediation and conciliation processes as a way of tracking the patterns through which disputes are resolved. Records might also be included in the annual report, be used to launch a special report, be included in a shadow report to treaty bodies, and/or be used to train conciliation and mediation staff and establish consistent practices and results. These records should be kept secure and any references to past actions should not identify the parties involved.
Mediation and conciliation may be linked to other grievance-resolution mechanisms so that a failure to resolve a grievance at this level will lead to action by the national institution at a higher level.
- Human rights tribunals
Failing successful mediation or conciliation, or failing adherence by one or both of the parties to the terms of the settlement of a dispute, some national human rights institutions have mechanisms through which they, or the parties to a dispute, may initiate proceedings before a tribunal, including a national human rights tribunal. The ability to initiate such proceedings, and the tribunal itself, must be established by statutory authority. A national human rights tribunal can act as a bridge between formal legal proceedings and the more informal process of investigation and conciliation.
- Intervention in legal proceedings
Another possible role of national human rights institutions is to intervene in proceedings that are held within the normal judicial system. In Australia, for example, the Human Rights and Equal Opportunities Commission has the power to intervene as amicus curae (a friend of the court) in court proceedings that raise disability-discrimination issues. This allows the Commission to present its views on the interpretation of the law and how it should be applied in the given circumstances.
THE HUMAN RIGHTS TRIBUNAL IN NEW ZEALAND
New Zealand’s Human Rights Act of 1993 creates an Office of Human Rights Proceedings, which is part of the national Human Rights Commission. A Director of Human Rights Proceedings heads the Office. The Director has the authority to bring civil proceedings before an independent Human Rights Review Tribunal.
New Zealand’s Human Rights Review Tribunal is a statutory body made up of a panel of persons appointed by the Minister of Justice, three of whom will hear any matter before the Tribunal. The panel consists of up to 20 persons, appointed on the basis of their knowledge of or experience in a range of human rights, legal, social, cultural, administrative and economic issues. As a quasi-judicial body, the Tribunal has reasonably wide discretion in the way in which proceedings are conducted. The Tribunal has the authority to resolve disputes and award remedies. It may also refer matters to the Human Rights Commission’s conciliatory process and refer to the High Court an issue that involves granting a remedy.
Establishing an appropriate institution
The Convention recognizes that a framework may already exist within the jurisdiction of States parties that, subject to modification, may be capable of meeting the requirements of the Convention. However, some institutional mechanisms may not be equipped to monitor implementation of the Convention and it is likely that they will have to be modified. National human rights institutions that already exist should be given the human and financial resources needed so that they can effectively monitor the Convention. Whatever form it takes, an institution or a combination of institutions must be able to perform the task identified in the Convention: to promote, protect and monitor implementation of the Convention. The institution should also respect the principle that civil society, particularly persons with disabilities and their representative organizations, participate fully in the monitoring process.
When deciding whether to establish a new institution or rely on an existing institution, consider the following:
- Does the existing institution comply with the Paris Principles?
- Does the institution have a mandate that covers the Convention on the Rights of Persons with Disabilities?
- Does the institution have expertise on the Convention and/or on human rights and disability generally?
- Does the institution have commissioners and staff with disabilities?
- Does the existing institution have sufficient human resources and time to promote, protect and monitor the Convention along with its other duties?
- Is the existing institution sufficiently accessible to persons with disabilities and does it have a policy on accessibility (of premises, documentation, technology, etc.)?
NATIONAL HUMAN RIGHTS INSTITUTIONS ARE ALREADY FOCUSING ON THE CONVENTION
National human rights institutions (NHRIs) participated in the negotiations concerning the Convention and Optional Protocol and have continued to be involved with the Convention since it was adopted. NHRIs have held expert meetings with organizations representing persons with disabilities at national and international levels to consider implementation and monitoring of the Convention. The Convention held a prominent place on the agenda of the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights. At its latest meeting in March 2007, the Committee’s focal point on human rights and disability and the representative of the Irish Human Rights Commission proposed that NHRIs work closely with persons with disabilities and their representative organizations, and that future Committee meetings devote time for debate on the Convention.
The Committee’s Bureau agreed to support a proposal, elaborated by the Asia Pacific Forum of National Human Rights Institutions, to establish a database on disability for national human rights institutions. The database will facilitate the collection, analysis and reporting of internationally comparable information on issues concerning human rights and disability. The database aims to:
- Identify priorities for capacity-building within NHRIs to enhance their ability to address issues related to the rights of persons with disabilities;
- Raise awareness of human rights violations against persons with disabilities and promote positive social change in response;
- Provide a credible evidence base to support social-science research into the rights of persons with disabilities; and
- Improve coordination within the international community to address issues concerning the rights of persons with disabilities.