NHRIs and the State: New and Independent Actors in the Multi-layered Human Rights System?

Abstract

One of the most important challenges for human rights lies in the paradoxical position of the state which is responsible for the implementation of human rights obligations and, at the same time, is often the violator of these rights. As independent state institutions exclusively concerned with the promotion and protection of human rights, National Human Rights Institutions (NHRIs) could offer a solution to the Janus-faced state in the area of human rights. The added value of NHRIs for the human rights system crucially hinges on their independence. However, being state institutions, with a mandate and funding determined by the state, the independence of NHRIs is not clear-cut. Through the analysis of the independence requirements relating to NHRIs in a myriad of supranational standards, this article seeks to clarify the position of NHRIs towards the state in the multi-layered human rights system. The article encompasses an analysis of the independence requirements for NHRIs as stipulated in the authoritative Paris Principles and their current interpretation through the General Observations of the International Coordinating Committee of NHRIs. Moreover, the independence of NHRIs is assessed according to relevant United Nations and European regulatory frameworks. Ultimately, the article addresses the question how NHRIs relate to the traditional representation of the state as a unitary actor in the international arena, usually embodied by the executive.