Australasian Law Reform Agencies Conference

Port Vila, Vanuatu, September 2008

  The Potential Role of National Human Rights Institutions in the Pacific

The Hon John von Doussa QC
President, Australian Human Rights and Equal Opportunity Commission1


1. Introduction

This paper advocates that National Human Rights Institutions (NHRIs) have a very valuable role to play in the Pacific, and that the promotion and protection of human rights in the Pacific would benefit immensely by Pacific nations each establishing a NHRI.

This conclusion is hardly dependent on law reform – though legislation would be necessary to set up a NHRI – but on understanding:

  • the characteristics of a NHRI and the functions it performs;
  • the status of NHRIs in the international scene and how they can act as a conduit between State and the United Nations human rights mechanisms;
  • moves already underway in the Pacific for the better promotion of human rights and the establishment of national human rights mechanisms;
  • the obstacles, perceived and real, that confront the establishment of a NHRI by a Pacific nation; and
  • that discussions about a regional human rights mechanism raise a different and potentially distracting issue.

This paper addresses each of these topics in turn.

2. The Characteristics of a National Human Rights Institution

Today, discussion about a NHRI refers to a body that has received accreditation under the Paris Principles.2 The key requirements for accreditation are:

  • independence guaranteed by the national constitution or by legislation;
  • autonomy from the government;
  • pluralism, including in its membership;
  • a broad mandate based on universal human rights standards;
  • adequate powers of investigation, without authorisation from higher authority;
  • sufficient resources to maintain an adequate infrastructure and to carry out its mandate; and
  • members that are appointed by an official act, for a specified period.

Typically, the core responsibilities of a NHRI will include the authority to examine and make recommendations on legislative and administrative procedure to ensure compliance with human rights principles; to raise community awareness about human rights through media and education programs; to encourage the State to ratify and implement international human rights instruments; to contribute to State party reports to the UN and its committees, where appropriate expressing independent opinion; and to report on and make recommendations about human rights violations.  Some NHRIs also have a complaints function, although this function is optional under the Paris Principles.

It is well recognised that no one model will fit all country situations and that no two NHRIs will be the same. The characteristics of a particular NHRI must reflect the political system and maturity of the State, its domestic legal system and the cultural setting. However the key features mentioned above must be present.

These characteristics distinguish NHRIs from non-government organisations (NGOs). The notion that an NHRI is the creature of, and answerable to parliament, yet autonomous and independent of government, is not always fully understood. But it is of critical importance. 

Autonomy from government is not intended to create a platform from which to advocate political views opposed to those of the government.  It is intended that the institution will establish its independence through the fixed tenure of its members, secure funding and the ability to select the human rights situations and topics on which it will investigate and report. This notion of independence is similar to that of the judicial independence enjoyed by courts which adhere to the ideals of the Beijing Statement of Principles of the Independence of the Judiciary in the LawAsia Region.3 As with judicial independence there is a corollary: NHRIs must use their independence to fearlessly express independent opinion which is well researched, evidence based and accurately grounded on the jurisprudence of international human rights law. The quality of the outputs of the NHRI should be the proof of its independent commitment to international human rights principles. And importantly, that output is expected to be published and transparent, thereby exposed to judgement by both UN human rights mechanisms and civil society.4

A NHRI’s relationship with parliament and with the executive of the day, is intended to create a situation where both these groups feel constrained to respect the views of the NHRI and have a sense of commitment to the advice and reports of an institution that they established and that is managed by members appointed through a transparent process intended to ensure a cross section of skilled opinion.

This describes the kind of national institution presently envisaged by UN human rights mechanisms and by the accreditation process under the Paris Principles administered by the International Coordinating Committee for the Promotion and Protection of Human Rights (ICC). Over the last three years the accreditation process has undergone reform and now rigorously applies a body of principles recorded in the General Comments developed by the ICC Sub-Committee on Accreditation.5

All accredited NHRIs are presently going through the process of reaccreditation which applies these principles and will in future be required to go through a re-accreditation process every five years.6

3. The Status of NHRIs in the International Scene

The potential role of NHRIs in the UN human rights mechanisms has been progressively recognised in the last few years. In her opening address to the 61st Session of the UN Human Rights Commission in Geneva in 2005, the then High Commissioner for Human Rights, Madame Louise Arbour, observed that the UN had spent the last sixty years establishing human rights norms, and the time had come to concentrate on their implementation, as human rights only have real meaning when they can be enjoyed in a practical sense.7 In her time Madame Arbour advocated a greater role for NHRIs as institutions that could assist States to understand and implement the norms. She described NHRIs as central to ensuring respect for international human rights standards at the national level.8

At the same session of the Human Rights Commission in 2005 Resolution 2005/74 was passed which gave NHRIs rights to directly participate in the work of the Commission, including rights to speak during the annual plenary sessions.9 Before this resolution could be implemented, the Human Rights Commission was disbanded, and replaced by the new UN Human Rights Council which is now a direct subcommittee of the General Assembly. At its first meeting in March 2006 the Human Rights Council, by Resolution 5/1 dealing with Institution-building of the Council, formulated its Rules of Procedure.10 Rule 7(b) provides for the participation of NHRIs in the manner proposed by resolution 2005/74. The Committee on the Elimination of Discrimination against Women has also conferred on NHRIs rights to participate in its work and has encouraged close cooperation between the Committee and NHRIs.11

The effect of Rule 7(b) is to give NHRIs participation rights which are superior to those enjoyed by international NGOs not only in the sessions of the Human Rights Council, but also in its subsidiary mechanisms, including the Treaty Bodies and Special Procedures. The important role which NHRIs can play in the promotion and development of human rights was demonstrated by their representation at, and participation in the meetings of the Working Group that drafted the Convention on the Rights of Persons with Disabilities12 which came into force earlier this year. It is probable that many NHRIs will be given monitoring roles under Article 33 of this Convention. Further, the Optional Protocol to the Convention against Torture13 with its provisions requiring a National Preventative Mechanism is likely in most countries to result in NHRIs gaining a further prominent role.

NHRIs currently network both with each other and with the Office of the High Commissioner for Human Rights (OHCHR) in Geneva on a very regular basis through annual meetings in Geneva and regional meetings. The ICC has just been incorporated under Swiss law, and now has a full time representative at the Human Rights Council who reports frequently to each NHRI on current issues in the Council and makes interventions on behalf of NHRIs. In the Asia Pacific region, the Asia Pacific Forum of National Human Rights Institutions (APF) is very active through a well resourced Secretariat in providing capacity building, expertise and training both to fledgling NHRIs, and to civil society and governments in States that are moving towards establishing a NHRI.

Both the ICC and the APF aim to share across their networks and with civil society best practices for the protection and promotion of human rights; to assist human rights defenders who come under threat; and to work in collaboration with human rights NGOs.

Given the now recognised international status of NHRIs, and their function of promoting and protecting human rights through assisting governments to meet their international obligations and through information sharing and community education, their potential to advance the recognition and enjoyment of human rights is manifest.

4. Developments in the Pacific for better Promotion and Protection of Human Rights

Recognising the reality that the Pacific nations have acceded to few of the major international human rights instruments, the OHCHR has in recent times directed particular effort to encouraging greater participation by Pacific nations in the UN human rights mechanisms, including by encouraging Pacific nations to establish NHRIs and accede to international human rights instruments. To this end, in 2005 the OHCHR established a regional office in Suva, Fiji, to provide technical assistance, capacity building and training.14 In conjunction with the United Nations Development Programme (UNDP), the OHCHR is also advocating a human rights based approach to aid delivery and development. The OHCHR has been a sponsor of regional workshops on human rights issues in the Pacific, in conjunction with the Secretariat of the Pacific Islands Forum (PIF)15 and other human rights organisations working in the Pacific.

The PIF has also repeatedly expressed a strong commitment to achieving regional co-operation on human rights and good governance. At their annual meeting in 2003, the Forum Leaders established an Eminent Persons' Group, tasked with providing a fresh mandate and vision for the PIF. In its report the Eminent Persons' Group recommended that:

The forum should report the work of members in developing national human rights machinery. As part of this process, those leaders whose governments are not already engaged with the Asia Pacific Human Rights Forum [sic - APF], might consider becoming so. This would draw in practical assistance from the Office of the UN High Commissioner for Human Rights.16

In April 2004, the Forum Leaders adopted the ‘Auckland Declaration’, in which they endorsed the recommendations of the Eminent Persons' Group, including the recommendation regarding the establishment of national human rights machinery, and noted that this may be done in consultation with the APF.17

In June 2004 a ‘Pacific Island Human Rights Consultation’ (the 2004 Suva Consultation) was held in Suva, Fiji. This Consultation was organised by the OHCHR, the APF, the UNDP and the Commonwealth Secretariat and was hosted by the Fijian Human Rights Commission, It was attended by the PIF Secretariat and over 80 participants. In the Concluding Statement the participants reaffirmed that:

The primary focus for the promotion and protection of human rights is at the national level and therefore it is the primary responsibility of States to ensure that human rights are promoted, protected and fulfilled.18

To that end the participants welcomed the decision of the Pacific Island Leaders to encourage the development of national human rights machinery, but expressed the view that although customary law should not take precedence over international human rights, human rights programs and rights-based interventions must be delivered in a culturally appropriate manner.

In October 2005 the Forum Leaders developed the Pacific Plan.19 This was said to be a ‘living’ document, and was revised by the Leaders in October 2007. The leaders agreed to give effect to their Vision through the Plan to:

i. promote economic growth, sustainable development, good governance and security;

……….

iv. promote and protect cultural identity, regional inclusiveness, sub-regional representation, human rights, gender, youth and civil society;

……….

In expansion of the aim of promoting good governance, the implementation agenda for 2006 to 2008 included:

Where appropriate, ratification and implementation of international and regional human rights conventions, covenants, and agreements and support for reporting and other requirements.20

The Milestones for the evaluation of this item are found in Attachment A to the Plan, which refers to the establishment of a regional support mechanism to cover the drafting, harmonisation and promotion of awareness of rights-based domestic legislation within the Pacific, encompassing the major international human rights Conventions.21

It is significant that the promotion and protection of cultural identity is coupled with the promotion and protection of human rights. The interaction of culture and cultural identity on the one hand, and human rights on the other, is always at the forefront of discussions about human rights in the Pacific. So, too, is the issue of national sovereignty, which finds expression in the Plan’s provisions dealing with Regionalism.

Later in the Plan there is discussion about the possible development of a ‘regional human rights mechanism’. The following clauses of the Plan would seem to give a very particular and restricted meaning to the Leaders’ notion of the functions any regional entity would have:

6. The Pacific Plan is based on the concept of regionalism: that is, countries working together for their joint and individual benefit. Regionalism under the Pacific Plan does not imply any limitation on national sovereignty. It is not intended to replace any national programmes, only to support and complement them. A regional approach should be taken only if it adds value to national efforts.22

Clause 10 of the Plan describes several quite different types of regionalism, and relevantly:

Regional Cooperation: Setting up dialogues or processes between governments. Regional cooperation means services (eg. health, statistics, audit, etc) are provided nationally, but often with increased coordination of policies between countries. This is either based on an agreed strategy – such as the Forum Principles on Regional Transport Services – or arranged through a coordinating body, such as the Oceania Customs Organisation.23

It is to be noted that the recommendation of the Eminent Persons’ Group, later endorsed by the Auckland Declaration in April 2004, was for the development ofnational human rights machinery. The added recommendation that governments not already engaged with the APF might consider becoming so, reinforces the view that the Forum Leaders were promoting the establishment of a domestic body, like a NHRI, rather than a new regional human rights body. The APF is an association of NHRIs, one of the objects of which is to assist States without their own NHRI to establish one.24 It will be seen that the focus on the development of national mechanisms carries through into the Pacific Plan.

Since the Auckland Declaration the APF has engaged with several Pacific nations to explore the establishment of an NHRI, and is presently well advanced in setting up, in conjunction with the PIF Secretariat, a human rights desk officer within the PIF Secretariat to provide advice and assistance to nations exploring the option of setting up a human rights mechanism in their country.

This background shows the Forum Leaders’ commitment to a vision that recognises the national responsibility to promote human rights and seeks the establishment of domestic human rights mechanisms while simultaneously respecting the sovereign integrity of each nation.

However, this idealistic vision confronts issues of political reality and a host of other practical obstacles that stand in its way.

5. Obstacles Confronting the Establishment of a NHRI by a Pacific Nation

These obstacles get discussed at every occasion the implementation of the Vision contained in the Pacific Plan comes up for consideration. They were well articulated in the Outcome Statement of the Regional Workshop on National Human Rights Mechanisms held in Nadi, Fiji, on 28 February - 1 March 2005 (the Nadi Workshop), sponsored by the PIF in co-operation with the APF.25 Justice and Foreign Affairs Ministries or their representatives were the principle participants, along with representatives of the OHCHR, the UNDP and other UN agencies. The Outcome Statement from the workshop records a range of challenges facing Forum countries. These include:

  • limited "ownership" and awareness of human rights within both governments and communities due, in part, to a lack of understanding of the relevance of human rights (including economic, social and cultural rights) to the daily lives of the people of the region;
  • multiple priorities of government competing for scarce resources, including economic and social development and environmental concerns, exacerbated by frequent changes in government;
  • a lack of economic, technical, and institutional human resources and capacity to pursue human rights at the national level;
  • obstacles presented by the region's isolation and the difficulty of governments in accessing international assistance;
  • the variety of models of good governance and the machinery of government in Pacific nations;
  • a lack of quality information on the benefits of becoming a party to international human rights conventions;
  • the heavy treaty based reporting obligations on governments; and
  • the need to reconcile human rights with traditional customary rights.26

At first glance, the outcome reports of the many consultations and workshops that have occurred in the past five years would suggest that the Pacific nations are devoid of formal human rights mechanisms and laws. The absence of grass roots enjoyment of many of the human rights which are internationally recognised would suggest the same thing.

Yet the Pacific Island States each have national Constitutions that entrench into their domestic legal systems many fundamental civil and political human rights, and in some cases, economic, social and cultural rights. Moreover, most of these rights are enforceable against government authority and coupled with the right to a remedy for their violation, available through the courts.

A fundamental question that deserves much more attention than it seems to have received to date is why these existing legal rights are not a feature of day to day living in the Pacific communities?
The answer, it is suggested, lies largely in the same practical challenges identified by the Nadi Workshop, namely:

  • a lack of awareness of the substance and value of constitutional rights;
  • a belief that some of the rights, although in the Constitution, must give way to cultural beliefs and practices that are different; and finally
  • a lack of resources and capacity to promote an awareness of the substantive content of the rights, and to strengthen government mechanisms that should be aiding the implementation of the rights.

On the last point, the all too familiar difficulties of access to the courts by indigent people are acute.

A focus of the promotion work undertaken by the OHCHR in the Pacific has been on encouraging accession to the core human rights conventions. At one practical level the importance of this is questionable, given that the most prominent of the core rights are already entrenched in domestic law and legal rights to their protection are already in place.

But on another practical level, accession to the conventions would place Pacific Island States under periodic reporting requirements to the relevant Treaty Bodies. There could be great value in this as it would force States, under risk of international attention and adverse response from major aid donors if they did not comply, to address the implementation and real enjoyment of the relevant rights by their citizens. Moreover, the fact that reporting obligations would need to be met, would attract offers of resources,  capacity building and training from donors and a wide range of human rights agencies, including the OHCHR so as to ensure that the burden of treaty body reporting process would not be too burdensome. As a vehicle for the delivery and use of assistance for these purposes, the services of a NHRI or a like body, would be of tremendous assistance. It is this value which was recognised in the recommendation of the Eminent Persons’ Group which urged engagement with the APF.

Issues of perceived establishment and running costs, and perhaps a lack of understanding about the role of a NHRI, give rise to opposition to the creation of NHRIs in the Pacific, and have led to the suggestion that some other existing body should undertake the promotion and protection of human rights envisaged by the Forum Leaders’ Vision. The office of an ombudsman is often mentioned. To a degree some such compromise would establish a human rights mechanism of sorts, but it would not attract important benefits that can attach to a NHRI, such as:

  • status within the community, since NHRIs have the ability to promote human rights principles through the media, workshops and a variety of other educational programs. The regional network of NHRIs has considerable experience in delivering grass roots education programs appropriate to a wide variety of cultural and social settings;
  • the existence of an official body to receive and remedy individual complaints of discrimination by businesses and people in areas of commercial and public activity (an ombudsman is likely to be concerned only with poor administration by government agencies);
  • the ability to provide legal assistance in human rights matters to disadvantaged members of a community (a power and function not possessed by an ombudsman);
  • the power to pursue systemic discrimination issues, particularly in relation to women and children, in all areas of public life;
  • access through the NHRI to expert technical assistance from the OHCHR and the regional activities of the members of the APF;
  • NHRIs expertise in international human rights law. Through the APF and other NHRIs, NHRIs have access to a wealth of research material. NHRIs are therefore, at the request of the national courts or through an intervention role, able to make this expertise available to the courts. In this way they can provide valuable assistance to judges to correctly identify and apply relevant human rights principles. This is a valuable resource tool that courts otherwise lack.

There is a new and very important role developing for NHRIs under the new Human Rights Council’s institution-building program put in place in 2006 by Resolution 5/1, that is their potential role in the Universal Periodic Review to which every member State in the United Nations will be subjected every four years, whether it likes it or not.

The process is intended to engage the State under review in a cooperative and collaborative exercise with the Human Rights Council and the international community to identify human rights shortcomings and to improve the promotion and protection of human rights in the State. 27

Every State is required as part of the Review process to lodge with the Human Rights Council and the OHCHR a written report on the human rights situation in its territory. States are encouraged (and expected) to prepare the information through a broad consultation process at the national level with all relevant stakeholders.28 NGO’s and civil society at large are able to make submissions about the enjoyment of human rights in the State to the OHCHR, which prepares a summary of the submissions received for the use of the Human Rights Council during the Review process. The process includes an interactive dialogue session before three members of the Council during which the State (through a senior diplomat or Minister) is questioned on the material submitted. One of the standard questions asked during the dialogue is whether the State has established a Paris Principle compliant NHRI. The process seeks to obtain from the State under review commitments and pledges to address human rights shortcoming that are identified.

Experience to date from countries that have been through the process is that NHRIs can play a very valuable part in coordinating consultation with NGOs and community stakeholders, in assisting the State with the preparation both of the Country Report, and in proposing ways of address issues where a commitment or pledge by the State could be expected.

Tonga recently went through the Review in the Second Session of the Human Rights Council in 2008. Commitments Tonga gave to the Council at the end of the process included a commitment to accede to seven of the core international human rights conventions.

6. A Regional Human Rights Mechanism – A Different and Potentially Distracting Issue?

The notion of some sort of regional human rights body for the Asia Pacific has been on the agenda of civil society groups for more than thirty years. There are regional bodies in each of the other three geographic regions recognised in the UN system; in Africa, the Americas and Europe, and in each of these complaints of human rights contraventions can be made against a state.29

The Human Rights Committee of Law Asia held a conference on the question of a regional body in Fiji in April 1985, following which a drafting committee was convened. The work of the drafting committee was reviewed and considered at seminars conducted by LawAsia in 1987, 1989 and 1990. The outcome was a draft model treaty based on the African Charter of Human and Peoples' Rights which established the African Commission on Human and Peoples' Rights. The proposed treaty30 recognised wide-ranging rights, including all basic civil and political rights (most of which are already contained in the Constitutions of the Pacific States), as well as economic, social and cultural rights, and the rights of peoples including Indigenous peoples. The draft included sets of duties for the government and individuals as members of society. Finally, the draft proposed a Pacific Human Rights Commission which would supervise the Charter and deal with complaints about human rights violations.

The treaty did not find favour with the Pacific nations, and was not adopted.

In the last eighteen months there has been a movement in the ASEAN countries towards creating a regional human rights body, but the concept is still at an early stage of development.

It seems to have started with the four established NHRIs in the region – the Human Rights Commissions in Indonesia, Malaysia, Philippines and Thailand – coming together as an informal group they refer to as the ASEAN NHRI Forum. With assistance from the European Commission these four NHRIs have embarked on a projectentitled ‘Enhancing the Role of National Human Rights Institutions in the Development of an ASEAN Human Rights Mechanism.’So far they have held four Forum meetings and two technical working group meetings to develop the concepts for some sort of sub-regional mechanism.31

In 2007 the ten member States of ASEAN agreed to develop the ASEAN Charter. In the months that followed during the drafting process the most controversial issue was whether there had been consensus to include in the Charter power to establish an ASEAN Human Rights Body. Within ASEAN a division emerged with the four countries that have NHRIs supporting such a power, four other countries opposing it and the remaining two countries being neutral on the question.

It is interesting that the driving proponents for a human rights body are the States that have established NHRIs.

It remains uncertain what consensus might be reached by the member States for the establishment of a regional human rights mechanism, and what functions it might have.32

Debate has also resurfaced about a Pacific region human rights mechanism.33

Most recently it was a prominent topic of debate at the ‘Strategies for the Future: Protecting Rights in the Pacific’ Conference in Apia, Samoa, from April 27 – 29, 2008.34

In any discussion on this topic it is critical to identify what functions it is proposed the body constituting the mechanism would be given. If it is proposed that the regional body would have power to receive complaints about human rights contraventions within member States of the PIF, to have investigative powers, or to have the function of reporting on the laws or activities of or within member States, the body would be a long way from the Forum Leaders’ Vision in the Pacific Plan discussed above. It would have to overcome not only the obstacles that face the establishment of a domestic human rights mechanism like a NHRI, but would run headlong into the question of sovereignty, which the Pacific Plan is careful to protect.

On the other hand, if the body proposed is one that would not have monitoring or regulatory functions of these kinds, but is simply to be a body that works collaboratively with member states to assist them with such things as human rights awareness raising, capacity building, technical cooperation and training, meeting treaty reporting obligations or establishing a domestic human rights mechanism (such as a NHRI), the question to be answered is why expend time and effort in setting up such a body when the APF, with the support of the regional office of the OHCHR in Suva, Fiji, is already carrying out this kind of work, and is ready to respond to requests for assistance.

Rather than engage the APF, aid donors and the two NHRIs in the region – the New Zealand Human Rights Commission and the Australian Human Rights and Equal Opportunity Commission – in supporting the establishment of another body to carry out the same or very similar functions to APF, would it not be better to put the effort directly into assisting each PIF member State to overcome its domestic obstacles that stand in the road of establishing a NHRI?

Civil society organisations are to be applauded for working to persuade governments to adopt policies that further the enjoyment of human rights, but there must always be an eye to practical reality. The terms of the Auckland Declaration and the Pacific Plan indicate that anything more than some type of facilitating body similar to the APF which will assist in establishing a national (domestic) mechanism is not likely to be implemented, at least until a great deal of painstaking work has been done to address the obstacles identified above.  

As a first step, the establishment of a national human rights mechanism which could work on these issues, and work to strengthen specific interest NGOs already there, especially those concerned with domestic violence, women and children, stands out as a priority. Then that mechanism can be developed in strength through the ‘building blocks’ approach  proposed in the very valuable research paper published by the New Zealand Human Rights Commission in late 2004, National Human Rights Institutions: Pathways for Pacific States.35 In years to come national institutions may persuade their States to participate in a cooperative regional human rights mechanism – but first things should be attended to first.

There is a risk that debate about a regional human rights mechanism will divert attention from the pressing need to address the establishment of national mechanisms. It would be all too convenient for a State troubled about the political difficulties in establishing a national mechanism to defer doing so on the argument that a regional body would make the national one unnecessary.  The experience with the ASEAN Charter strongly suggests that until states have a national mechanism, a regional mechanism is not likely to get off the ground. Moreover, it is very difficult to see how a regional body could function, unless there were already corresponding national mechanisms to work through.

Debate about a regional mechanism, especially debate about a mechanism without defined functions which the member States are committed to, has the serious potential to divert attention from more pressing needs.

7. Conclusions

To move the Forum Leader’s Vision forward on the human rights front, the major obstacles which have been identified need to be addressed.

Cost and resources, if they are the real stumbling block, should be capable of quick resolution through aid programs. But it seem more probable that the real obstacle is fear of the uncertain, caused by a lack of information and understanding at the very fundamental level about the nature and content of international human rights principles, and perceptions that somehow international human rights are in conflict with custom.

The important question of conflict between human rights and custom has been eloquently addressed by the New Zealand Law Reform Commission inits 2007 study paper Converging Currents: Custom and Human Rights in the Pacific,36 and the issue is being addressed by another speaker in this session.

The level of awareness throughout the Pacific communities must be raised. Education and human rights capacity building are core functions of an NHRI which can also call in aid the enormous skills of the OHCHR and the APF. A NHRI could be set up by a Pacific State, and start to work on these issues without the State first committing to any particular international human rights convention. It seems an ideal way forward.

Awareness-raising on human rights is not easy. Every human rights agency knows this from bitter experience. Awareness is too low in almost every country.  But at every stage the way forward is plain – education, education and more education about human rights addressed to every level of the community, from children to the aged, from poor citizen to the rich, and from bureaucrat to politician. They must all become engaged in a human rights conversation.


[1] Also a member of the Management Bureau of the International Coordinating Committee of National Institutions for the  promotion and Protection of Human Rights, Geneva; and immediate past Chairman of the Asia Pacific Forum of National Human Rights Institutions. However, the views expressed in this paper are entirely those of the author.

[2] ‘Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights’ [hereinafter ‘the Paris Principles’] GA Res 48/134, UN Doc A/RES/48/134 (20 December 1993).

[3] ‘Beijing Statement of Principles of the Independence of the Judiciary in the LawAsia Region’, signed on 19 August 1996, Beijing, as amended in Manila on 28 August, 1997. Available at:  http://www.lawasia.asn.au/uploads/images/Beijing_Statement.pdf    

[4] The quality of the performance of NHRIs in the future will be an issue open to OHCHR, civil society and other States to publicly raise and question during the Universal Periodic Review conducted by the United Nation’s Human Rights Council. It will also be reviewed periodically during re-accreditation processes now in place under the Paris Principles (see later in this paper).

[5] International Coordinating Committee for the Promotion and Protection of Human RightsReport and Recommendations of the Sub-Committee on Accreditation’ Geneva, 21-23 April 2008, Available at: http://planetecomsolutions.com/nhri/Report%20Sub-Committee%20April%20200...

[6] The reaccreditation requirement recognises that in the past some NHRIs have not, or are now perceived not to meet the minimum requirements of the Paris Principles. The new status of NHRIs in the UN system has prompted this reform. Already in the Asia Pacific region NHRIs in Fiji and Sri Lanka have had their accreditation revoked, and Malaysia’s NHRI is on notice that aspects of its mandate must be amended. This reform of the accreditation requirement is intended to address the kinds of criticism made by the Asian NGOs Network on National Institutions (ANNI) in the ‘2008 Report on the Performance and Establishment of National Human Rights institutions in Asia’. Available at: http://www.forum-asia.org/in_the_news/pdfs/ANNI2008web.pdf

[7] ‘Statement by Ms. Louise Arbour United Nations High Commissioner for Human Rights
On the opening of the 61st session of the Commission on Human Rights’ (Geneva, 14 March 2005). Available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/527ED2F6E7DD06ADC1256FC400406C8D?opendocument

[8] See also ‘Report of the Secretary-General Renewing the United Nations: A Programme for Reform’ UN Doc A/51/950 (14 July 1997). Available for download at: http://www.un.org/reform/chronology.shtml

[9] ‘National institutions for the promotion and protection of human rights’ CHR Res 2005/74, UN Doc E/CN.4/2005/L.10 (April 2005

[10]  ‘Institution-building of the United Nations Human Rights Council’ HRC Res 5/1, UN Doc A/HRC/5/L. (June 2007).

[11] ‘Statement by the Committee on the Elimination of Discrimination against Women on its relationship with national human rights institutions’ (January 2008), UN Doc E/CN.6/2008/CRP.1.

[12] United Nations Convention on the Rights of Persons with Disabilities, open for signature 30 March 2007 (entered into force 3 May 2008).

[13] United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, open for signature 18 December 2002, 42 ILM 26 (entered into force 22 June 2006).

[14] The UN 12th Annual Workshop on Regional Framework for the Promotion and Protection of Human Rights in the Asia Pacific Region, held in Doha, Qatar, in March 2004, called on the OHCHR to take this action.

[15] The Forum was established in 1971. Presently, in addition to Timor Leste, there are 16 Pacific members: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nehru, New Zealand, Niue, Palau, Papa New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.

[16] The Eminent Persons’ Group (EPG), ‘Pacific cooperation: Voices of the region: The Eminent Persons’ Group review of the Pacific Islands Forum’, recommendation 6. (Wellington: New Zealand Ministry of Foreign Affairs & Trade, 2004).

[17] ‘The Auckland Declaration’ signed at Special Leaders’ Retreat, Pacific Islands Forum, Auckland New Zealand on 6 April 2004. Available at: http://www.forumsec.org.fj/_resources/article/files/Auckland%20Declarati... 

[18] ‘Pacific Island Human Rights Consultation: Concluding Statement and Recommendations’ Suva, Fiji Islands, June 1-3, 2004. Available at: http://www.humanrights.org.fj/pdf/ConcludingStatement.pdf   

[19] Pacific Island Forum Secretariat ‘The Pacific Plan for Strengthening Regional Cooperation and Integration’ endorsed by Leaders at the Pacific Islands Forum meeting in October 2005. Available at: http://www.forumsec.org.fj/UserFiles/File/Pacific_Plan_Nov_2007_version.pdf

[20] Pacific Island Forum Secretariat ‘The Pacific Plan for Strengthening Regional Cooperation and Integration’ note 18, at p. 7.

[21] Pacific Island Forum Secretariat ‘The Pacific Plan for Strengthening Regional Cooperation and Integration’, Attachment A, note 18, at p. 19.

[22] Pacific Island Forum Secretariat ‘The Pacific Plan for Strengthening Regional Cooperation and Integration’ note 18, at p. 3.

[23] Pacific Island Forum Secretariat ‘The Pacific Plan for Strengthening Regional Cooperation and Integration’ note 18, at p. 4.

[24] Asia Pacific Forum of National Human Rights institutions ‘Mission, Vision and Objectives’ (2008). Available at: http://www.asiapacificforum.net/about/governance

[25] Pacific Islands Forum Secretariat ‘Regional workshop on human rights mechanisms: outcome statement’ Nadi, Fiji (2005).

[26] Pacific Islands Forum Secretariat ‘Regional workshop on human rights mechanisms: outcome statement’ Nadi, Fiji (2005).

[27] For information about the UPR mechanism, see ‘Information and Guidelines for Relevant Stakeholders on the Universal Periodic Review Mechanism’ (July 2008). Available at: http://www.ohchr.org/EN/HRBodies/UPR/Documents/TechnicalGuideEN.pdf

[28] ‘Institution-building of the United Nations Human Rights Council’ HRC Res 5/1, UN Doc A/HRC/5/L. (June 2007). Part I, para 15.

[29] In the Americas, regional human rights are protected by the Inter-American Convention on Human Rights, which provides for the establishment of the Inter-American Court of Human Rights. There is also an Inter-American Commission on Human Rights established under the Charter of the Organisation of American States. In Africa, the African (Banjul) Charter on Human and Peoples' Rights establishes a Commission on Human Rights and the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights created a court. In Europe, the main human rights organ is the European Court of Human Rights, established under the European Charter for Fundamental Rights and Freedoms. However, there is also some protection of rights by the European Court of Justice, which is the judicial organ of the European Union.

[30] 'Draft Pacific Charter of Human Rights’ (1989), prepared under the auspices of LAWASIA in May 1989, reprinted in Essays and Documents on Human Rights in the Pacific (1992) VUWLR Monograph 4, at pp. 145-159.

[31] See the paper  of the President of the Commission on Human Rights of the Republic of the Philippines given at the 13th Annual meeting of the APF, Kuala Lumpur, 28-31 July 2008.

[32] At the 7th Workshop on the  ASEAN Regional Human Rights Mechanism organised by the Working Group for an ASEAN Human Rights Mechanism, the Singapore Institute of International Affairs and the Ministry of Foreign Affairs of Singapore in Singapore on 12-13 June 2008. the ASEAN member States were encouraged to press ahead with the establishment of the ASEAN Human Rights Body, and in the meantime to accede to international human rights instruments, and to engage with the UN human rights mechanisms and domestic human rights organisations. See ‘7th Workshop on Human Rights Mechanism for ASEAN: Summary of Proceedings’. Available at: http://www.siiaonline.org/files/7th_WS_Summary_Proceedings.final.pdf

[33] Whilst the discussion has been in terms of a regional body, it would be more accurate to use the description ‘sub-regional body’ as the UN designates the Asia Pacific area as one of the four world geographic regions.

[34] This Conference was not a meeting of the PIF, or of Pacific member states, but was one presented by the National University of Samoa, the New Zealand Centre for Public Law at the Law Faculty, Wellington, and INTERIGHTS. It was attended by a wide cross section of civil society organisations, by representatives of the OHCHR, PIF, and by a number of government backed organisation concerned with the promotion and protection of human rights. On this topic, the conference was informed by a paper by Dr Kay Hay from the Massey University, New Zealand entitled ‘A Pacific human rights mechanism: Specific challenges and requirements’.

[35] New Zealand Human Rights Commission, ‘National Human Rights Institutions: Pathways for Pacific States’ Pacific Human Rights Series 1(2004). Available at: http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/09-Jul-2007_12-52-44_Pacific_Paper.pdf

[36] New Zealand Law Reform Commission Converging Currents: Custom and Human Rights in the Pacific (September 2007). Available at: http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_120_340_SP17.pdf

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