National Human Rights Institutions Research Articles

Protecting the protectors: redefining immunity protections for National Human Rights Institutions

ABSTRACT National Human Rights Institutions (NHRIs) established pursuant to the United Nations Paris Principles play a crucial role in protecting human rights at the domestic level, but they face significant risks of interference and obstruction when carrying out their sensitive functions. International standards recommend that NHRIs’ enabling legislation includes functional immunity provisions to protect them from these risks to their independence and effectiveness. However, presenting the results of the first comprehensive analysis of the functional immunity protections for NHRIs across 111 countries, this article finds that 40% of NHRI laws lacked any such protection provisions, while the remaining provisions were of questionable quality. To protect NHRIs from interference and obstruction, this article proposes a redefinition and strengthening of NHRI functional immunity provisions based on an analysis of existing protection provisions, international recommendations, and comparable immunity protections for judges and parliamentarians. It proposes a new framework for functional immunity that aims to grant NHRI leadership and staff the necessary level of protection against interference and obstruction, which also has wider relevance for other similar domestic bodies.

Comparative legal analysis of the Ombudsman institution of Kazakhstan and Turkey for compliance with international documents

The purpose of the article is to comparatively reveal the structure and activity of the ombudsman institute in Kazakhstan and Turkey and evaluate it in terms of international standards. In this context, the compliance of the ombudsman institutions of the two countries with the international documents, which regulate the status of national human rights institutions, was studied. The normative basis of their duties and powers, and international standards, will be examined, and if there are any shortcomings, they will be identified and recommendations will be made on what to do to improve them. In order to protect human rights and freedoms, the importance of the ombudsman institution in the society and its place in the state legal system was analyzed. Additionally, the status of the ombudsman institution, the order of creation and appointment to the position was studied. The requirements and duties of the ombudsmen of the two countries were shown. It was also determined that the norms of the internal legislation of the two states regarding the institution of ombudsman correspond to the principles of Paris and Vienna. In this context, proposals were made to improve internal legislation. To conduct scientific research work, the national laws were studied such as “On the Commissioner for Human Rights of the Republic of Kazakhstan” dated November 5, 2022 and the Law “On the Ombudsman Institute” of Turkey dated June 29, 2012. Result of the research work, some inconsistencies were obtained with international standards in the laws governing the activities of the ombudsman institution.

Transnational Human Rights Violations: Addressing the Evolution of Globalized Repression through National Human Rights Institutions

Abstract Transnational Human Rights Violations (THRV) are infringements of individual rights that originate outside the jurisdiction in which they take effect. Ranging from violent and criminal forms of transnational repression through to coercion against targets’ family members abroad, digital surveillance, and legal intimidation, THRVs today generate widespread and systemic constraints on the exercise of human rights in jurisdictions around the world. At present, however, targets of THRVs typically find few avenues through which to raise complaints, receive assistance or pursue redress. This article proposes a new domestic institutional mechanism to directly address this situation. It first examines the mutually reinforcing, additive effects of transnational surveillance, coercion and censorship in the digital era. Next, it identifies relevant human rights standards showing state responsibilities to monitor and counter THRVs within their jurisdiction, and the growing recognition of additive, systemic effects of THRVs on broad populations. The third section examines policy responses in the United States, Australia, United Kingdom, and international organizations, noting that none has adequately addressed the contemporary nature and scope of THRVs as international standards require. The final section argues that to meet their obligations, states should establish Transnational Rights Protection Offices (TRPOs) to provide a clear contact point for targets to raise complaints and receive support; monitor and report on the situation of THRVs taking effect within the state’s jurisdiction; advise and inform government departments on THRV issues; and develop evidence-based policy recommendations. We conclude by laying out the rationale for its institutional status within National Human Rights Institutions (NHRIs).

Fostering Socio-Economic Rights and Human Dignity Through Collaborative Partnerships: The Role of Civil Society Organisations

The end of the Second World War (WW II) illuminated the new hope of a world order that tumultuously recognised human rights and the inherent dignity of all humans. States now recognise that improved human rights mechanisms and their enjoyment; particularly socio-economic rights, are dynamics consistent with the dignity of humans under international human rights law. However, their observance and promotion are traditionally predicated on the states' discretion. Thus, it is pivotal to have a concerted push towards adopting common measures that put these rights on the frontlines of states' economic blueprints. Civil society organisations in partnership with National Human Rights Institutions (NHRIs) would play a central role in realising this global effort. This article aims to argue that non-governmental organisations (NGOs) could play a crucial role in fostering resilience within national boundaries and the promotion of socio-economic rights as key indices in reshaping the economic landscape of states in the twenty-first century, especially in states like South Africa and Nigeria.

Human Rights and Equality Institutions in Europe

National Human Rights Institutions (NHRIs) are state bodies mandated to protect and promote human rights. Their mission is to identify and tackle systemic problems while raising fundamental rights awareness in countries in which they have been established. Human rights institutions at the national level include Ombudsman (some specialising in particularly vulnerable groups), Equality Bodies, National Preventive Mechanisms, National Monitoring Mechanisms, Data Protection Agencies, and more. In this article, we analyse the strengths and weaknesses of both centralised and fragmented systems of human rights institutions. Using examples from several European countries, we particularly examine how the fragmentation of institutions affects their resilience to pressures which can adversely impact the promotion and protection of human rights and equality at the national level. We argue that opting for a certain NHRIs’ system might exert significant influence on the independence and effectiveness of individual institutions, as well as on the overall comprehensiveness of a nation’s human rights infrastructure.

Human Rights and Transitional Justice in the Maldives: Closing the Door, Once and For All?

In 2020, the Maldives instituted a transitional justice process to address decades of systematic human rights abuses including the widespread use of arbitrary arrest and detention, torture, and the forced depopulation of entire island communities. While the country’s decision to confront its violent past is not unusual, the institution it has established to undertake that task is. Rather than institute a truth and reconciliation commission (TRC), refer cases to its Human Rights Commission, or undertake criminal trials in its domestic judicial system, the Maldives has taken the unprecedented step of establishing a temporary Ombudsperson’s Office for Transitional Justice (OTJ). Comparing the OTJ to national human rights institutions and TRCs, this article examines how and why the Maldives’ transitional justice process has taken this unusual form. It suggests that the OTJ represents a new attempt to address the full range of human rights abuses, including violations of social and economic rights, perpetrated by repressive regimes.

Institutionalizing human rights in the United States: Advocacy for a national human rights institution

National Human Rights Institutions (NHRIs) have been part of the infrastructure of international law since 1946, two years before the Universal Declaration of Human Rights was completed. Globally, more than 120 nations have established independent NHRIs. Two-thirds of these have been accredited by the Global Association of National Human Rights Institutions (GANHRI) after passing a rigorous review to assess their compliance with the Paris Principles, a set of minimum standards for NHRIs. The United States does not have an NHRI and the federal government has resisted calls from both domestic NGOs and the international community to establish such an institution. Domestic advocates nevertheless continue to pursue creative approaches to promote human rights monitoring and implementation in the United States. U.S. civil society submissions to treaty bodies regularly draw attention to the need for a U.S. NHRI. On the domestic stage, advocates likewise urge the federal government to take a greater role in human rights monitoring, implementation, and coordination. However, as a global power and a key actor in the UN system, the U.S. government experiences few consequences for failing to establish an NHRI. In sum, the absence of a U.S. NHRI is a challenge not only for domestic advocates, but for the international system as well.

Transitional justice at the National Human Rights Commission of Nepal: challenging legitimacy, credibility, and effectiveness

ABSTRACT In the past three decades, national human rights institutions (NHRIs) have becoming an increasingly common feature of transitional and post-conflict justice processes. As institutions designed to promote and protect human rights, they have been afforded a range of responsibilities, including investigating conflict-related human rights violations, assisting with the establishment and functioning of ad hoc mechanisms like truth and reconciliation commissions, and contributing to accountability. Drawing on evidence from the case of Nepal, however, this article demonstrates that engaging in transitional justice processes places NHRIs at considerable risk. It argues, in particular, that the political nature of transitional justice and compromises it inevitably entails can serve to jeopardise the legitimacy, credibility, and effectiveness of NHRIs. The article thus concludes that far greater consideration of the impact that transitional justice has on NHRIs and development of measures to protect their integrity in highly fraught political contexts is required.

Dissecting Stakeholder Participation in UN Human Rights Treaty Body Activities with Normative and Empirical Approaches: A Comparison of NGO and NHRI Participation

Abstract By addressing the question “Are the roles and values of stakeholder participation qualitatively different for non-governmental organizations (NGOs) and national human rights institutions (NHRIs), and if so, how?” this article dissects stakeholder participation in UN human rights treaty body activities. First, it normatively posits that stakeholder participation in treaty body activities carries three values, which weigh differently based on the actor and the treaty body activity concerned: facilitating “bounded” national deliberations, promoting international deliberations on human rights treaty standards, and supplementing the treaty bodies’ fact-finding capacity. It offers concrete normative guidance for treaty bodies on their engagement with NGO and NHRI participation to maximize the benefits of these values. It then empirically analyzes their current practice in light of the above-mentioned normative guidance. This article contributes, first, to the theorization of stakeholder participation in treaty body activities, which has been discussed but only in generalized or fragmented ways in previous studies. Second, it supports the effectiveness and legitimacy of treaty bodies by endorsing their practice that is consistent with the guidance and finding space for improvement. Finally, it provides a rationale for establishing and strengthening NHRIs by showing that NHRI participation has unique roles distinct from those of NGOs.

Ensuring accountability, combatting impunity? The role of national human rights institutions in transitional justice

ABSTRACT During the past three decades, national human rights institutions (NHRIs) have become an increasingly common feature of transitional justice frameworks. Promoted by international organisations, including the United Nations and its relevant agencies, and by several regional NHRI networks, contemporary human rights policy and discourse has coalesced around the idea that NHRIs may contribute to transitional justice by ensuring accountability and combatting impunity. In practice, however, relatively little is known about the specific roles envisaged for and played by NHRIs in transitional and post-conflict contexts. This article examines the role of NHRIs in transitional justice from the 1970s to the present. Drawing on the mandates and experiences of 137 NHRIs, it demonstrates that NHRIs are increasingly being afforded responsibility for three types of accountability tasks associated with transitional justice: investigating past human rights violations, holding post-transitional actors and institutions to account; and managing the provision of reparations to victims of human rights abuses. This, it argues, represents a small but significant development, both for the practice of transitional justice and for the roles and functions of NHRIs.

Қазақстандағы Адам құқықтары жөніндегі уәкіл институты: мәртебесі және даму перспективалары

The Commissioner for human rights or the ombudsman is the most important figure in a complex multi-level system of observance and protection of human rights. Each state undertakes to protect human rights and creates appropriate legislation and institutional structures for this, including national human rights institutions. Traditionally, national human rights institutions are defined as state structures for the promotion and protection of human rights. The activity of the institution of the Commissioner for human rights as an individual model of a national human rights institution is based on the norms established by the Paris Principles of 1993. The Paris Principles became the document that installed standards for the work of national human rights institutions, taking into account their diversity. The Republic of Kazakhstan has joined the majority of international treaties dealing with human rights issues. An important step in implementing the obligations under these agreements was the establishment of the institution of the Commissioner for human rights or ombudsman in 2002. The Ombudsman is an official with the authority to monitor the observance of human rights and freedoms and restore them within his competence. His activities complement the current system of state protection of human rights and freedoms. This article examines the features of the institution of the Ombudsman of the Republic of Kazakhstan, analyzes its compliance with international standards, and determines the directions of its further development. The authors used both general scientific and sociological research methods, in particular, document analysis and expert survey. The purpose of this work is to study the social institution of the Commissioner for Human Rights in Kazakhstan, to determine the features and prospects of its activities. The research used scientific publications, official reports of international experts, national reports, reviews of international organizations whose activities are aimed at the realization and protection of human rights.

Сотрудничество стран Центральной Азии с региональным отделе- нием управления Верховного комиссара ООН по правам человека

This article analyzes the issues of cooperation between Central Asian countries and the regional office of the United Nations High Commissioner for Human Rights. The establishment of a Regional office in Bishkek (Kyrgyzstan) in 2008 and its activities, which cover Kazakhstan, Tajikistan, Kyrgyzstan, Turkmenistan, and Uzbekistan, are considered. The purpose, main directions and ideas of scientific research are formulated in the following form. It highlights the specifics of the Regional Office's cooperation with the countries of the region on human rights and freedoms. The mandate of the Regional Office allows interaction with Governments, international organizations, and representatives of civil society, which contributes to the development and implementation of programs for the protection of human rights and freedoms. The scientific significance of this work is evident in the fact that it shows how the process of strengthening human rights protection in the region took place through educational programs, trainings, and seminars. The practical significance lies in the fact that this article presents successful practices of cooperation between representative offices that were established in various cities of the studied region. The research methodology includes the method of comparative legal analysis, the logical method and the method of scientific forecasting. The main results and conclusions include: the need to organize the fight against corruption crimes in order to better respect human rights; the presence of a positive impact of the Regional Office on improving the effectiveness of the work of national human rights institutions; improving the mechanism for the observance and protection of human rights through the formulation of legislative and convention recommendations and proposals in the article. The value of the convention and legislative recommendations is reduced to the need to establish a Central Asian Court of Human Rights based on the principles of the European Court of Human Rights. The practical significance of the results of the work is that the decisions of the Central Asian Court of Human Rights should become binding for each State in the region and its courts, which would raise the level of human rights protection in the region.

Türkiye İnsan Hakları Ve Eşitlik Kurumuna Yapılan Şikayet Başvurularında Kabul Edilebilirlik Koşulları

Ulusal insan hakları kurumları (UİHK), insanların temel haklarının ulusal düzeyde korunması ve geliştirilmesi için önemli mekanizmalar olarak kabul edilmektedir. 2016 yılında 6701 sayılı Kanun ile kurulan Türkiye İnsan Hakları ve Eşitlik Kurumu (TİHEK) 24.11.2017 tarihinden itibaren bazı konularda şikâyet başvurusu almaya başlamıştır. TİHEK’e ayrımcılığa maruz kalan kişiler ile ulusal önleme mekanizması çerçevesinde özgürlüklerinden yoksun bırakılan kişiler başvuru yapabilmektedir. TİHEK, insan hakları ihlallerine karşı resen araştırma yapmak, suç niteliği taşıyan eylem varsa ilgililer hakkında suç duyurusunda bulunmak, bu ihlallerin sona erdirilmesi için gerekli girişimlerde bulunmak yetkisine de sahiptir. Bu makale, TİHEK’e yapılan bireysel başvurularda kişi yönünden yetki (ratione personae), konu yönünden yetki (ratione materiae), zaman bakımından yetki (ratione temporis) ve yer bakımından yetkiye (ratione loci) ilişkin kabul edilebilirlik koşullarına odaklanmaktadır. Kabul edilirlik koşulları TİHEK kararları ışığı altında incelenmiş ve TİHEK’e başvurunun niteliği ile Kamu Denetçiliği Kurumu ve Anayasa Mahkemesinin temel hakların korunması hakkındaki başvuruların niteliği bakımından karşılaştırma yapılmıştır.

Developmental Constitutionalism and the Fourth Branch: Ghana’s Independent Constitutional Bodies and the Redress of Poverty and Inequality

Ghana’s Constitution has long emphasised the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development Planning Commission. The first is a 30-year-old national human rights institution, which monitors and investigates alleged violations of human rights, corruption and the misappropriation of public moneys, and provides redress, partly through its increasing focus on economic and social rights and the claims of the most vulnerable, including women, children and persons with disabilities. The second, currently executive body, is the subject of current calls for constitutional reform in Ghana. These reforms would entrench national development planning to enhance features of autonomy, technical capacity and partisan independence. As such, these proposals offer a distinctive and yet also paradigm-defying model of fourth branch arrangements in developmental constitutionalism, raising questions about the usurpation of policymaking and the deficits of democracy that are commonly raised against courts, international financial institutions or other international economic arrangements.

UN Human Rights Treaty Bodies Talking to Domestic Adjudicators Through Their Quasi-judicial Work: An Examination of CERD and CEDAW

ABSTRACT: The article examines the merit of UN treaty bodies' accumulated case law as a resource for domestic adjudicators, i.e., courts and quasi-judicial bodies (such as national human rights institutions) addressing human rights complaints at the national level. It has the objective of assessing the extent to which treaty bodies are "talking to" an audience beyond the parties in the case. Starting from a view that sees impact on national adjudicators as the key issue for treaty bodies' rulings on individual complaints, the article assesses to what extent the way that treaty bodies are exercising this role fits in this view. The study's focus is on two UN treaty bodies with a broadly similar output in quantitative terms, the Committee on the Elimination of Racial Discrimination (CmERD) and the Committee on the Elimination of Discrimination against Women (CmEDAW).

Decriminalising vagrancy offences in Africa beyond the African Court’s Advisory Opinion: quo vadis?

The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-lawscontaining vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of theChild; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate contextspecific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.

Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission

The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

Tailoring Peer-to-Peer Learning on “Faith for Rights”

Abstract Freedom of religion or belief is a fundamental freedom that provokes tensions but equally provides opportunities for synergy and mutual enhancement with other human rights. This article explores lessons learned from implementing the “Faith for Rights” framework which has been developed by faith-based actors and UN independent experts through a global consultative process since 2017. Related peer-to-peer learning workshops have been tailored to different audiences, including children, youth, students and scholars, parliamentarians, judges and prosecutors, civil servants, diplomats, UN independent experts, national human rights institutions, faith-based actors, human rights defenders and peer-learning facilitators. In conclusion, the article calls for an inclusive human rights “diplocacy” by strategically combining diplomacy and advocacy tools for managing religious diversity in a human rights-based manner that resolve tensions between numerous rights in the context of religions and beliefs.

Interpreting human rights as the social psychological phenomenon of rights claiming.

In the last 5 years, the intersection between psychology and human rights has become more evident, with influential international, national and local human rights institutions, including the American Psychological Association, issuing reports and resolutions on the topic. Within jurisprudence, human rights are less of a legalistic regulatory enactment and more of what social psychologists refer to as injunctive norms. We argue that conceptualising human rights as the social-psychological process of both creating and aligning injunctive and descriptive norms clarifies human rights and makes them more accessible to groups and individuals in society engaged in rights claiming. Rights claiming is a term we use to describe the moral cognitive process of people engaged in individual and/or collective behaviour aimed at securing their social identity within the public sphere where that identity is marginalised or the subject of discrimination. We argue that placing rights claiming at the centre of human rights psychology advances human rights. Focusing psychological research on social identity, the alignment of injunctive norms, deontic moral cognitions, human dignity, social dominance orientations and collective and individual behaviours forms part of securing a clear specialty in psychological science dedicated to human rights and advancing the American Psychological Association (APA)'s human rights mandate.

Assessing the Effectiveness of the National Human Rights Commission, India, vis-à-vis the Paris Principles Relating to the Status of National Human Rights Institutions

National Human Rights Institutions (NHRI) play an important role in monitoring and promoting international human rights norms in a country. However, in order to function as an effective NHRI, they must adhere to the “Paris Principles” of 1993. In 2023 the Indian NHRI prepares to renew its ’A’ grade accreditation. This offers an opportunity to assess the effectiveness of the institution in light of the aforementioned Principles. In doing so the authors address both the limitations that hinder the NHRI’s performance and the remedies. Notably, the role of “District Human Rights Courts”, in supporting the NHRI in enhancing its effectiveness.