Mandate and Responsibilities
National human rights institutions are required to both protect and promote human rights. They are to be given as broad a mandate as possible, clearly set forth in constitutional or legislative texts that specify the institution’s composition and sphere of competence.
National human rights institutions that draw their mandate directly from international treaties and deal with all human rights are the most consistent with the indivisible, interdependent and universal nature of human rights and are considered the “best model.” Nonetheless, some institutions’ mandates are limited to civil and political rights, thus excluding economic, social and cultural rights. These limitations do not prevent a national human rights institution from complying with the Paris Principles.
The OHCHR notes (Fact Sheet No. 19) that a national human rights institution has responsibility to submit opinions, recommendations, proposals or reports on any matter concerning the protection and promotion of human rights “to the government, parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral.” These opinions, recommendations, proposals or reports can relate to:
- any legislative or administrative provisions or provisions relating to judicial organization, intended to preserve and extend the protection of human rights;
- any situation of violation of human rights;
- situations in any part of the country where human rights are violated and making proposals for initiatives to put an end to such situations;
- encouraging the ratification and implementation of international human rights instruments;
- ensuring that national legislation, regulations and practices are harmonized with the international human rights instruments to which the State is a party;
- contributing to the reports that States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for their independence;
- assisting in the formulation of programmes for the teaching of and research into human rights; and
- publicizing human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of the press.
Some national human rights institutions do not have authority to inquire into matters concerning the armed forces, the security services and/or Government decisions on international relations. In addition, NHRIs can only address matters that arose after their establishment.
The process to appoint the members who compose the national human rights institutions must ensure the participation of civil society “social forces” involved in the promotion and protection of human rights by including representatives from:
- non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations (for example, associations of lawyers, doctors, journalists and eminent scientists);
- trends in philosophical or religious thought; and
- universities and qualified experts.
Other participants include representatives from parliament and from government departments (with advisory capacity only).
The principle of pluralism includes the meaningful participation of women in the national human rights institutions.
It is recommended that members of an NHRI have guaranteed, fixed-term appointments of sufficient length to ensure that the institution can function effectively and “members should enjoy immunity from civil and criminal proceedings for acts performed in an official capacity.”
National human rights institutions must have an infrastructure “suited to the smooth conduct of its activities, in particular adequate funding” so that it can have its own staff and premises “in order to be independent of the government and not be subject to financial control which might affect this independence.”
In terms of methods of operation, the Paris Principles provide that national human rights institutions shall:
- freely consider any questions falling within its competence, whether they are submitted by the government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;
- hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;
- address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations;
- meet on a regular basis and whenever necessary in the presence of all its members after they have been duly consulted;
- establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions;
- maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the protection and promotion of human rights (in particular, ombudsmen, mediators and similar institutions);
- in view of the fundamental role played by non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to protecting and promoting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.
In addition, a national human rights institution “may be authorized to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, nongovernmental organizations, associations of trade unions or any other representative organizations.” In these circumstances the national human rights institution is considered to have quasi-jurisdictional competence and, as such, functions entrusted to the NHRI may be based on the following:
- “seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality;
- informing the party who filed the petition of his rights, in particular the remedies available to him, and promoting his access to them;
- hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law;
- making recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations or administrative practices, especially if they have created the difficulties encountered by the persons filing the petitions in order to assert their rights.”
There are two main types of institutions with complaint-handling functions. The first are NHRIs that can themselves impose a binding decision on the parties following an investigation. The second—more common than the first—can make a finding and refer the matter to a specialized board or tribunal that is independent of the institution or to the courts in order to obtain a binding decision. National human rights institutions may act on behalf of the complainant during the process or on behalf of the public interest, depending on their legal mandate. In some instances, complainants are required to obtain their own representation.