In the beginning
Thirty years ago, when the Human Rights Defender was born, National Human Rights Institutions (NHRIs) were emerging as one of the great hopes for significant progress in the implementation of international human rights law. NHRIs are official, independent legal institutions established by the State and exercising the powers of the State to promote and protect human rights.1
International human rights lawmaking was already very well advanced by 1991 and it was apparent that the greatest challenge was not lawmaking but implementation. There was a yawning gap between the fine promises of the law and the actual enjoyment of human rights on the ground. Under the law, States were responsible for ensuring the human rights of all persons within their jurisdiction. International law and international mechanisms were no substitute for domestic responsibility and domestic accountability. NHRIs were developed as a principal mechanism for domestic implementation of these international obligations.
That period, 30 years ago, was a critical one for the development of NHRIs. The first independent NHRIs had been established in the late 1970s and early 1980s, in New Zealand, Canada and Australia. By the early 1990s there were about 20 of them claiming to be independent. The UN sponsored the first gathering of NHRIs in Paris, in October 1991. They drafted and adopted the Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (the Paris Principles), which were subsequently endorsed by the UN Commission on Human Rights and General Assembly.2 Then, in 1993, the UN’s Second World Conference on Human Rights (the Vienna World Conference) endorsed and encouraged the establishment of independent NHRIs worldwide in accordance with the Paris Principles.3
The 1993 World Conference initiated a period of great growth, led by the Office of the High Commissioner for Human Rights. Today there are 117 NHRIs that are members of the Global Alliance of National Human Rights Institutions, 84 of which are recognised as fully compliant with the Paris Principles and 33 of which are partially compliant.4 Twenty-five of them are located in the Asia Pacific region.5
Over these 30 years, NHRIs have achieved a great deal.6 They have investigated tens of thousands of complaints of human rights violations. They have exposed systemic patterns of human rights violation and recommended ways to effect systemic change and change to cultures. They have provided human rights education and training for perhaps hundreds of thousands of people. They have advised parliaments and governments on laws that should be made or amended or repealed and of policies and programs that should be adopted or changed. They have informed and helped shape the work of the UN’s human rights mechanisms. There can be no doubt that they have contributed to building more human rights respecting societies and cultures.
Take the national human rights inquiry process, pioneered in the Asia Pacific region, as an example. These inquiries have enabled NHRIs to undertake a wide-ranging, public process that exposes violations, gives recognition and reparations to victims, leads to legal and policy and program change and also raises awareness educates about real life situations. The Afghanistan Independent Human Rights Commission has conducted inquiries into violence against women and girls and into abduction and sexual exploitation of boys. The Samoa Ombudsman has inquired into family violence and recommended major legal, political, social and economic changes. The Australian Human Rights Commission has conducted many inquiries, starting with homeless children, racist violence and mental illness in the late 1980s and early 1990s.
But have NHRIs now reached their use-by date?
The nature of the world and individual societies has changed dramatically since the 1990s. In retrospect, that decade may well have been the high point of the great post-World War II human rights project. It was the decade after the collapse of the Soviet Empire. The new authoritarian Russian kleptocracy was yet to emerge. China was chastened after the 1989 Tiananmen Square massacre and was not yet assertive and expansionist. Western states and many new democracies were liberal and democratic, not yet marked by the far-right populism of Trump’s America, Orban’s Hungary, Duterte’s Philippines or Bolsonaro’s Brazil. There was democratic space in which independent activist NHRIs could be established and operate. Those days have gone.
In their early days, NHRIs generally were vibrant, creative, pushing boundaries. They were young institutions with young staff and had the characteristics of youth – energy, commitment, a perception of their own invincibility, a vision that they could and would accomplish great things. They combined the independence, vigour and flexibility of non-government organisations with the authority and resources available only to state institutions.
Today, many NHRIs seem old and tired.
Where they were once human rights experts, even human rights activists, NHRI leaders are now more often retired academics, retired judges or retired civil servants. They are also invariably political appointees selected to suit the temperament of the Government of the day, far more cautious in what they do and say, not wanting to be seen as offending the Government or as speaking outside the mainstream. Yet, if NHRIs are to do their jobs well, their leaders must be prepared to offend their governments. They must also espouse views that many in their societies do not support, speaking up for victims of human rights violations and their families and communities, including unpopular minorities. Often, they do this at great personal and institutional cost. The President of the Australian Human Rights Commission, Professor Gillian Triggs, was attacked by the Australian Prime Minister, Attorney General and other ministers and members of Parliament for her outspoken comments on the treatment of asylum seekers. They constantly demanded that she resign. She stood firm and served her term of office in full. The Philippines President has detained for four years the former Chairperson of the Philippines Human Rights Commission, Leila de Lima, on false charges and he has repeatedly threated the current Chairperson, Jose Luis Martin Gascon.
As for NHRI staff, many have been there for more than 10 or 15 years, in some cases since the very beginning. They have aged in place as their institutions have aged. NHRIs are in need of fresh ideas, fresh ways of looking at and doing things. And they are in need of new energy.
Furthermore, as NHRIs have become larger (and most of them have over time), they have also become more bureaucratic, more risk averse, more cautious. They have developed procedures and now stick rigidly to them, as if the process is more important than the result. The number of complaints opened and closed efficiently becomes more important than the number of victims who receive justice. As the human rights project has waned and extremism has grown, the radical enthusiasm of once youthful NHRIs has often been replaced by conservative inaction.
A second foundation
Perhaps the time of NHRIs has passed. Perhaps NHRIs have done as much as they can do for human rights and there’s now a need for different institutions and organisations doing things differently. Perhaps… but I don’t think so. For me, this is not the time for abolition but for a second foundation, for transformation.
The signs of life are still there to be seen. The Afghanistan Independent Human Rights Commission continues to perform its frontline work with courage and determination despite targeted killings of its Commissioners and staff.7 The Philippines Commission on Human Rights has undertaken a national inquiry on human rights in relation to climate change and the role of the major international oil companies.8 The Australian Human Rights Commission is undertaking a major study of human rights issues relating to technological developments, especially artificial intelligence, facial recognition and global data markets.9 These are important, innovative projects. And new, vibrant institutions are still emerging, like the Samoan NHRI, the Ombudsman.
NHRIs must discern where their efforts are most required. Who are the people and communities most in need? What are the issues that have received inadequate attention? What are the new and emerging areas? And they must have the tenacity to pursue these issues. They have to be ahead of societal trends and technological developments, to anticipate and respond to human rights challenges and human needs.
The second foundation must also involve learning from NHRIs’ experiences – not only what worked but how. They must learn from what went wrong, including the loss of energy and courage that so many have experienced over the past decade.
There are ways to re-capture the youthful energy of the early years and to build on what has been learned since. NHRIs need types of new leaders, ones with expertise in human rights and a determination to act to protect human rights. They need regular staff turnover, allowing for the infusion of new staff, knowledgeable, idealistic young graduates who are eager to learn and to push. They need a new focus on results and not merely procedures. They need to move out of their comfort zone and into the real world where human rights are routinely violated. They need to break the civil service mindset.
NHRIs can accomplish much of the necessary change themselves. They don’t have to wait for governments to lead. On the contrary they need to act in spite of governments. After all, they are supposed to be independent. This transformation requires the vision, will and leadership to do it.
- For a comprehensive introduction to NHRIs, including their history and functioning, see Asia Pacific Forum of National Human Rights Institutions Manual on National Human Rights Institutions 2018 at https://www.asiapacificforum.net/resources/manual-on-nhris/.
- Commission on Human Rights resolution 1992/54; General Assembly resolution 48/134.
- Vienna Declaration and Programme of Action; Part 1, para. 36.
- See https://ganhri.org/membership/.
- See https://ganhri.org/membership/.
- See again Asia Pacific Forum of National Human Rights Institutions Manual on National Human Rights Institutions 2018 at https://www.asiapacificforum.net/resources/manual-on-nhris/ and other resources and manuals on the Asia Pacific Forum website.
- https://chr.gov.ph/nicc-2/; https://essc.org.ph/content/archives/10479/. The inquiry is still to release its report.