The Paris Principles: lessons learned
In October 1991 a group of human rights practitioners, including myself, met in Paris for the first International Workshop on National Institutions for the Promotion and Protection of Human Rights. Based on our experience as practitioners, we developed a set of standards on the obligation of each state to set up an independent human rights institution (generally now referred to as the Paris Principles). These principles, officially the “Principles relating to the Status of National Institutions”, were adopted by the UN in 1993. Member states voted for them twice: once at the UN World Conference on Human Rights in Vienna in 1993 and again at the UN General Assembly later that year.
Why did we feel the need to establish such principles? As a former advisor to the political leaders in my own country, I had seen that you could have a democratic system, an executive government responsible to an effective legislature and independent courts – but that all of that did not necessarily ensure protection of the rights of some of the most vulnerable groups in society. Some of us had been involved in negotiating human rights conventions – the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination against Women, and Conventions prohibiting Racial Discrimination – and a number of states were setting up institutions focused on each of these conventions. But we felt very strongly that since human rights are universal, each country needed an institution with a holistic approach which did not leave out any sector of society, be it women, children, ethnic, linguistic or religious minorities, people with disabilities or indigenous groups. That was the primary motivation behind the Paris Principles.
The Paris Principles oblige each state to establish a national human rights institution (NHRI); but also affirm the prerogative of each state to set it up in accordance with its own structure and needs. They prescribe the basic functions of national human rights institutions: research and advice, education and promoting an understanding of human rights, monitoring compliance with international human rights treaties and norms, investigating violations of human rights and providing remedies, co-operating with international and regional human rights mechanisms and interacting with the judiciary.
One of the key characteristics of human rights institutions we agreed on in 1991 is that they must be independent. They must also be established by legislation. Endowing the institution with the legitimacy, the authority and the support of the parliament was important to us. As practitioners we had seen that what can be set up by a presidential decree can sometimes be disestablished by presidential decree. Part of being independent is being able to do your job fearlessly and, when necessary, give frank advice to the government and to the parliament. NHRIs usually prefer to operate as advisory bodies. But if there are violations of human rights by the military, by police, or by the government itself, then they may have to move from an advisory to an adversarial mode. That is not an easy balance to strike, but it is a balance which is one of the challenges for all national institutions in all regions, including that of the OSCE.
Another aspect of NHRIs we stressed in the Paris Principles was the importance of working in close co-operation with civil society – not only NGOs but also human rights defenders, advocates and leaders of professional organizations. Working in conjunction with civil society is the only way that a broad-based national institution can focus effectively and offer authoritative and accurate advice to governments and parliament, because civil society is its eyes and ears.
New challenges
Considerable progress has been made in accepting the universal standards set out in the Paris Principles. Fortunately, we are living in a world where, increasingly, there is accountability for human rights violations. There is a much greater expectation than there was twenty years ago that international human rights treaties are not just aspirational norms created by diplomats, but fundamental obligations that have to be translated into reality at the national level.
NHRIs are generally recognized and respected. But they face the challenge of limited resources to deal with expanding responsibilities. As globalization progresses, governments are increasingly privatizing and outsourcing services that they used to provide – such as education, healthcare and even water supply. More and more, human rights abuses take place in the private sector. This creates new challenges for national human rights bodies that have the responsibility to monitor both the public and private sectors and advise the parliament and the government.
The role NHRIs play in the international community is also expanding. They are called upon in the Human Rights Council and international expert bodies that monitor human rights treaties. Two of the most important recent international agreements, the UN Optional Protocol to the Convention against Torture and the Convention on the Rights of Persons with Disabilities, specifically refer to NHRIs as national monitoring bodies. Increasingly, national institutions are also dealing with cross-border human rights issues: human trafficking, migrant workers, asylum seekers, refugees. It would be tremendously valuable if the OSCE could give tangible support to the idea of a regional secretariat or forum to help them talk to each other and exchange experiences.
Lessons learned
This is still a relatively new but rapidly evolving and increasingly important area. As we look back at our work over the past twenty years, what have we learned?
One important lesson has been the necessity for a clear mandate. In the very large and diverse area the OSCE represents, one of the problems is that some institutions have not been given clearly defined responsibilities and some of them have not been given a clear legislative basis for their operations. That makes it extremely difficult for them to operate effectively and independently.
Also, we have learned that national human rights institutions need to be given powers commensurate with their responsibilities. If they are given the responsibility to protect human rights and investigate human rights violations, they must be given the power that requires. That is why the Paris Principles refer to quasi-judicial competence: the authority to compel the production of evidence and attendance of witnesses.
The educational role of national human rights organizations is fundamentally important. Changing the law is often a necessary, but never a sufficient, pre-condition for ensuring the protection of human rights, for eliminating discrimination against minorities or people with disabilities. What is critical is changing public attitudes – and to achieve this we have had to develop new strategies, such as conducting public national inquiries.
Human rights bodies must also be accessible. That is why national institutions, with the power to investigate human rights violations and, where appropriate, engage in alternative dispute resolution, are so important. Many of the most vulnerable individuals in all countries cannot afford to litigate if their rights are violated. Regional mechanisms can play an important role - but the reality for the vast majority of OSCE participating States, those in Europe and Asia, is that the European Human Rights Court is almost overwhelmed by a growing backlog of cases, and there is no Asian regional mechanism at all.
One of the most painful lessons we have learned is the importance of prevention. Once the genie of racial hatred, or ethnic or religious intolerance, has been let out of the bottle, we, as the international community, are not very good at putting it back. It is far better to invest in national human rights institutions, with a clear mandate to promote societies in which individual differences are accepted and individual dignity respected. In many countries, national institutions have defused or addressed discrimination against a particular minority that could have led to escalating violence, horrific violations of human rights – and even national insecurity and regional instability.
At the practical level, determining priorities is always a difficult issue. When governments confer a mandate on a national institution in legislation, they must recognize that the institution must have a certain amount of discretion as to what it does and how it does it – because with a broad mandate you can’t do everything.
An indispensible role
In conclusion, I would like to emphasize that NHRIs play an indispensible role in protecting human rights. There is no doubt that the work of the courts is important. But if you examine the whole range of human rights abuses in recent years, many of the most egregious violations were not against the law. The way we treated millions of mentally ill people, for example, was largely a matter of omission and neglect – and there was very little judges were able to do about it. For many people, often the most disadvantaged and vulnerable, the law is not a complete answer; the courts are, in reality, not always accessible. Human rights institutions are free; nobody pays a fee to obtain their assistance.
Essentially, judges have no choice but to be reactive; they can only deal with issues brought before them. National human rights institutions, under the Paris Principles, can play a proactive role. The great challenge for those of use who work in NHRIs is to ensure that international norms, embodied in international treaties that states have voluntarily and solemnly ratified, are actually translated into reality.