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Maria O’Sullivan[*]
It has come to a point, after many years of negotiations and drafting, that we can say the current body of United Nations (UN) and regional human rights instruments provide wide-ranging, comprehensive human rights protections. Despite this, the system of implementation continues to be beset by problems. The UN, despite its many strengths, has not been able to ensure that these standards are implemented by governments. This may be due to the fact that the UN’s resource and geographical constraints render it unable to conduct the frequent and in-depth monitoring of countries required, but also to the fact that many governments are simply unwilling to implement these standards. Against this background, the attention of the international community has therefore turned to establishing national human rights institutions as a way of improving implementation procedures.
In the last decade there has been a growth in national human rights institutions and the international community has increasingly placed importance on them as implementors of human rights. Recent calls by countries such as Burma (Myanmar)[1] to establish such institutions, together with the growth and importance of these bodies, has raised the need to examine the issues surrounding the establishment of national human rights institutions. Despite the fact that such an important role has been given to these institutions, very little has been written about the context in which they are established and the things we can realistically expect them to achieve in countries which do not have proper democratic processes in place. We must ask: if we expect these institutions to be able to push governments to establish fundamental democratic processes such as genuine elections and the rule of law, can they actually carry out this role?
National human rights institutions are, as their name suggests, designed to be a means of implementing human rights in the domestic context of a particular country. Although the structure and priorities of institutions differ across nations, they have core features. Essentially, although established and funded by the state, they must be independent from government. They are normally responsible for both protecting and promoting human rights by dealing with human rights complaints lodged by the public, making recommendations to government, and publicising human rights in the community.
According to the latest figures, approximately 22 national human rights institutions have been established around the world and a further 40 such institutions are in the process of being established or under serious consideration by governments.[2] Some examples of established human rights institutions include Australia’s Human Rights and Equal Opportunity Commission (HREOC) and the New Zealand Human Rights Commission, both of which have been very successful institutions. Recently, similar institutions have been established in both Northern Ireland and the Republic of Ireland as well as a number of Asia-Pacific countries such as Thailand and Fiji.
The push to establish national human rights institutions has been largely spurred on by national governments, eager to establish institutions which more accurately reflect their own cultural and historical imperatives. To this end they are beneficial in that they allow governments to set agendas which fit the particular social and cultural context of the particular country involved.
The international community and, in particular the UN, has attached great importance to national institutions and envisages that they will play a pivotal role in the implementation of human rights in the future. The Commission on Human Rights passed resolutions in 1992 which accorded priority to the development of these institutions and encouraged initiatives by governments and other organisations to both strengthen existing institutions and to establish institutions where they do not already exist. The UN High Commission on Human Rights (UNHCHR) also recently commented that it expects that ‘strong’ national institutions will increasingly take over tasks that currently still require international involvement. As part of this strengthening and expansion program, the UN conducts a number of technical assistance and coordinating schemes. Regional human rights agreements also encourage the establishment of national human rights institutions and technical assistance is provided through organisations such as the Asia-Pacific Forum of National Human Rights Institutions (the Asia-Pacific Forum).
This growth and encouragement of national human rights institutions should be continued. However, in doing so, it is important to ensure that countries seeking to establish these institutions are genuinely dedicated to the implementation of human rights and have essential democratic processes in place which will support the institution. This is important because national human rights institutions are designed to work with already established core democratic bodies such as independent courts and judiciary, properly-run legislative bodies and non-government organisations (NGOs). The context in which a national human rights institution is placed is therefore an important consideration. Human rights institutions are not designed to be a substitute for these democratic bodies. As Amnesty International has rightly pointed out, the creation of such an institution can be an important mechanism for strengthening human rights protection but it
… can never replace, nor should it in any way diminish, the safeguards inherent in comprehensive and effective legal structures enforced by an independent, impartial, adequately resourced and accessible judiciary.[3]
National human rights institutions will therefore only be effective when fair and democratic government organs are firmly established.
The fact that the operation of national human rights is very much limited by the democratic context in which they operate is evident in their operation in a number of countries. For instance, despite the fact that Indonesia has made some democratic progress in recent years and the Indonesian National Commission on Human Rights has succeeded in investigating some human rights abuses, serious human rights abuses continue to be widespread throughout the country and a number of basic democratic reforms have not yet been implemented.[4] Likewise, although a national human rights commission began operation in Fiji in October of 1999 and has made some progress, it is unclear to what extent the activities of the new institution have been altered by the recent coup in Fiji and to what extent it will now be able to implement human rights standards in that country.
The importance of democratic context can also be seen in the operation of Australia’s own national human rights institution. HREOC has been effective in handing down landmark reports such as the ‘Stolen Generation’ report.[5] However, as can be seen by the problems encountered in getting our government to respond to its recommendations, implementation is very much dependent on the political will of government. This should cause us to think: if implementation of human rights standards is so dependent on the will of the government of the day, how will a national human rights institution be effective in a country such as Burma where the government is neither representative nor accountable? This is why strict guidelines need to be put in place — to ensure that governments which seek to establish a human rights institution have systems in place which will at least ensure some degree of government accountability.
The principles governing the establishment and operation of national human rights institutions are the Principles Relating to the Status of National Institutions (referred to as the ‘Paris Principles’).[6] They are so named because they were developed at a UN-sponsored meeting of representatives of national institutions in Paris in 1991. These principles, subsequently endorsed by the UN[7] and by delegates at the Vienna Conference,[8] are currently the reference point for United Nations activity in this area. In summary, the Principles provide for autonomy from government, pluralism, a broad mandate, adequate powers of investigation and sufficient resources. For instance, the Principles include the following provisions, that:
• the composition of the national institution and the appointment of its members shall be established so as to ensure the pluralist representation of civilian society;
• the institution shall be given as broad a mandate as possible which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence;
• the institution shall have responsibilities which include the power to submit to the government, parliament and any other competent body opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights;
• the institution shall promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the State is a party;
• the institution shall encourage ratification of international human rights instruments and to ensure their implementation;
• the institution shall cooperate with the UN, regional institutions and relevant national institutions of other countries; and
• the institution should hear any person and obtain any information and any documents necessary for assessing situations falling within its competence and address public opinion directly or through any press organ.
In the context of Asia, the Paris Principles have been supported in the Larrakia Declaration[9] and underpin the activities of the Asia-Pacific Forum. In relation to the Asia-Pacific Forum, the Paris Principles are important not only in terms of its activities but also its membership, in that newly created national institutions must satisfy the Forum that they meet or commit themselves to the fundamental criteria set out in the Paris Principles in order to become a member.[10]
The fundamental problem with the Paris Principles is that they only deal with issues such as the way in which members should be appointed, the responsibilities of the institution and related matters. They do not deal with the democratic systems which should be in place prior to establishment of the institution. This is problematic because in not dealing with the political and legal context in which such an institution is to be established, they assume certain democratic processes will be in place in a particular country, when in many countries now seeking to establish institutions they are not. For instance, while it is valuable to give an institution the power to address the public through the press, this will provide little protection where there is no free press through which to speak. Likewise, the requirement that independence should be guaranteed by a statute or constitution will be rendered useless if the government drafting that statute or constitution has not been democratically elected and is not accountable for its actions.
In the light of this analysis, we need to reassess the basis on which national human rights institutions are established. There seem to be two approaches we can take in response to requests from countries which seek to establish their own human rights institution but do not yet have democratic reform in place: we can assist with establishment and at the same time push for democratic reform or, alternatively, we can make assistance conditional on democratic reform. As is explained in the following paragraphs, this article proposes the latter.
An argument that we should expect certain democratic processes to be in place prior to the establishment of national human rights institutions may be met by a number of objections. First, this approach could be criticised on the basis that every country has a tainted human rights record and that it is neither correct nor feasible to require certain fundamental freedoms or democratic processes to be in place prior to establishment of an institution. However, it is obviously not expected that countries seeking to establish a national human rights institution will have to display a perfect human rights record. Australia, for instance, has a long history of human rights abuses, but was not prevented from establishing HREOC because of this. Clearly a distinction needs to be made between human rights abuses which breach international human rights standards (such as, for instance, the use of mandatory sentencing laws) and those which mean that the majority of citizens in a country cannot exercise fundamental democratic rights (such as due to the absence of genuine elections). The difference is lack of democratic accountability. Citizens of countries such as Australia have redress for human rights abuses through proper elections, the press, domestic human rights legislation and the judicial system (however flawed these may be). Citizens in countries like Burma do not.
A second criticism which may be made of the ‘democracy before establishment’ requirement is what is known as the cultural relativist approach. This is an argument frequently raised by developing countries that the UN and other international bodies impose Western values, in particular civil and political rights, without recognising the need for developing nations to prioritise economic development. Thus, those arguing from a cultural relativist viewpoint may say that it is unfair to expect developing nations to establish democratic processes prior to establishing a human rights institution as they should not be expected to conform to a ‘Western’ style of democracy and should instead be permitted to focus on economic development. However, the right of nations to take into account their differing cultural, social and economic needs is explicitly provided for in a number of UN resolutions and certainly those which have been passed in relation to national human rights institutions.[11] Moreover, requiring that essential democratic processes be in place prior to the establishment of a human rights institution neither ignores the importance of economic development nor of differing cultures. It actually recognises that political and civil rights and democratic protections are inextricably linked with economic development.
Burma is one of a number of countries in the Asia-Pacific region currently considering the establishment of a national human rights institution.[12] However, this development is surprising given that the Burmese government continues to deny its people fundamental freedoms and essential democratic rights. Burma does this in a number of ways. First, there are no genuine elections and the current government is unrepresentative of the will of the people. As many will be aware, in the election of 1990, the party supported by the military regime, the State Law and Order Restoration Council (SLORC) (now the State Peace and Development Council (SPDC))[13] gained only 10% of the vote, whereas the National League for Democracy (NLD) gained over 80% of the vote. However, it is the SPDC which is currently in power. Second, although Burma is a member of the UN and voted in favour of the Universal Declaration on Human Rights in 1948, it has not ratified either the International Covenant on Civil and Political Rights nor the International Covenant on Economic, Social and Cultural Rights and it continues to breach those human rights conventions it has ratified.
Burma’s gross human rights breaches have been a long-standing problem. In a leading human rights survey of the world in 1992, Burma scored the worst rating, with Iraq being the only country to receive the same score.[14] This was also affirmed by the NGO, Freedom House in 1999, which found that Burma was among 13 of the worst rating countries for political rights and civil liberties. In particular, Freedom House had the following to say about the lack of democracy in Burma:
The junta controls the judiciary, and the rule of law is nonexistent. The SLORC has imprisoned or driven into exile most of its vocal opponents; severely restricted freedom of speech, press, and association, and other fundamental rights.[15]
As part of the Burmese government’s desire to establish a human rights institution, it invited the Australian Human Rights Commissioner, Chris Sidoti, to visit Burma in August 1999. In discussions with government officials, Mr Sidoti stated that there would be particular difficulties in establishing a fully independent institution in a political system such as that in Burma, but that HREOC was willing to assist if the Burma government decided to pursue the proposal. The NLD Vice-Chairman, U Tin Oo expressed doubts relating to Burma’s inability to establish an independent institution but Mr Sidoti explained that only institutions which complied with the Paris Principles would be eligible for membership of the Asia Pacific Forum.[16] While this is true, as we have seen in the preceding discussion, reliance on the Paris Principles does not provide adequate protection against misuse of national human rights institutions by governments such as those in Burma. As the Paris Principles currently stand, Burma could establish a human rights institution today. It would merely have to give it a broad mandate, powers of investigation, appoint a range of people to the institution and satisfy the other operational requirements of the Principles. However, would we not question the legitimacy of such an institution? Even supposing that appointees to the institution were legitimate, what would happen, say, if NLD leader Aung San Suu Kyi lodged a complaint for abuse of her human rights? Would the newly formed Human Rights Commission of Burma hear her complaint? And if so, would the Burmese government, the same government which has failed to accord her party its rightful place in government and which has tortured and repressed members of the NLD, respond to the Commission’s determinations? I think not.
In addition to the problems associated with establishing a human rights institution in countries such as Burma, there is also a question of whether Australia should engage with the Burmese government through the provision of human rights training programs. The Australian government created controversy recently by conducting the first of three planned human rights seminars for members of the Burmese bureaucracy in July and has also encouraged the Burmese government to set up a national human rights commission.
In defending the government’s position, the Minister for Foreign Affairs, Alexander Downer, emphasised that engagement with Burma had been spurred on by the fact that other approaches to improve the political and human rights situation have failed.[17] However, lack of progress in the human rights situation in Burma does not automatically justify this type of engagement with what is essentially a repressive military regime, which continues to repress opponents and subject its people to serious human rights abuses.
It is also very unlikely that these programs will be effective. This fact was pointed out by the Australian Ambassador to Burma who stated recently that ‘[t]here are clearly no grounds for optimism in the SPDC’s unchanging approach to opponents of the regime’.[18]
Moreover, we should question the ethics of conducting human rights training in countries such as Burma. How can conducting human rights training of officials be ethically sound and in accordance with human rights principles when those officials continue to hold power against the express wishes of the people of their country and refuse to implement basic democratic reforms? Additionally, how can such programs be either effective or conducted in an ethical fashion when they fail to include, or at least recognise, the legitimate position of the rightful governors of Burma, the NLD?
As with the establishment of national human rights institutions, such activities clearly need to be approached with caution. First, a boundary must be drawn between human rights awareness raising and assistance to actually establish a national human rights institution (which should only be done when the country satisfies an amended version of the Paris Principles). Second, they should only be carried out in a way that emphasises both the importance of human rights as well as the need for democratic reform. Third, they should be inclusive and ethically sound programs which do not affirm the power of illegitimate governments or further repress the citizens living under such regimes. As is the case with the question of establishing national human rights institutions, human rights awareness raising can only be carried out properly when basic democratic processes, such as representative government and recognition of genuine elections, are established by those officials.
Previous attempts by other bodies to accept Burma as a member in an effort to bring about democratic reform confirms the validity of the above argument. For instance, the Association of South-East Asian Nations (ASEAN) accepted Burma as a member in 1997. In doing so, ASEAN claimed that the move would encourage the ruling junta to improve its human rights record. Despite the trade benefits that Burma would have enjoyed had it done this, the government has not improved the treatment of its people nor recognised the legitimate rule of the NLD since that time. While ASEAN is obviously a different body to that of a national human rights institution, this illustrates the difficulty that a human rights institution would face in trying to push for democratic reform in Burma.
Some moves have already been made to draft an alternative set of standards for the operation of national human rights institutions. Amnesty International, for instance, has drafted a set of Proposed Standards for National Human Rights Commissions.[19] They are similar to the Paris Principles but do stress the need for the establishment of such human rights institutions to go ‘hand in hand’ with a thorough review of existing legal and other institutions. Unfortunately, these standards also suffer from the same weakness of the Paris Principles in that they deal with matters such as its mandate, composition and powers but do not expressly state that prior to establishment certain fundamental freedoms and democratic processes must be in place. What is needed is an amended set of Paris Principles which recognise that, prior to establishment, fundamental democratic processes such as genuine elections, representative government, the rule of law and an independent judiciary must be firmly established in that country.
There are a number of measures occurring at both the regional and international level which may strengthen the monitoring of national human rights institutions in the future. In the Asian region, the Asia-Pacific Forum is in the process of establishing an Advisory Council of Jurists, which will provide advisory opinions to the Forum and its members on the interpretation of international human rights standards. At the international level, the International Coordinating Committee of National Institutions has recently been working on promoting and assessing conformity with the Paris Principles.[20] These developments are important in that they indicate the possibility, in the longer term, of a means by which outside examination of the effectiveness of national human rights institutions could be carried out. It could therefore be argued that this raises the possibility that, in the future, the effectiveness of national human rights institutions established in non-democratic countries could be assessed and monitored.
However, despite the strength that monitoring systems may have in the future, the first and most important step in ensuring the proper running of national human rights institutions remains that of ensuring that democratic processes are in place prior to that institution being established. This is clearly the preferable option for making national human rights institutions effective and accountable, particularly in the light of the many difficulties faced by other human rights organisations in gaining access to closed countries such as Burma for the purpose of human rights monitoring. The second step would then be to strengthen monitoring procedures. For instance, the Asia-Pacific Forum currently plays an important role in the Asian region.[21] However, it is limited in that it has no concrete enforcement powers. Together with amendment of the Paris Principles, the strengthening of such regional arrangements could assist the monitoring and enforcement of human rights in the future.
At first glance, the move towards the establishment of national human rights institutions, particularly as a way of improving the implementation of human rights standards, is promising. However, in order to ensure that such institutions are not established merely for political purposes, we must ensure that fundamental democratic rights and processes are in place prior to these institutions being established. This could be done relatively easily by expanding the Paris Principles as suggested.
A national human rights institution, if established in the correct democratic context, can be a powerful tool in protecting the human rights of its people. However, it should not be used merely as a vehicle by governments keen to boost their human rights image in the international community. As well as damaging the credibility of human rights institutions, such institutions could be used to hide the real human rights abuses being carried out in particular countries and may therefore fail to protect the rights of the very people they are designed to protect. Likewise, conducting human rights training programs as a prequel to the establishment of a national human rights institution in countries such as Burma is of little use where there are no democratic structures in place and, in fact, has the propensity to be detrimental by legitimising the position of the unlawful government. In essence, we must ask — is assisting countries such as Burma to establish a human rights institution before fundamental democratic processes are established not akin to putting the cart before the horse?
References
[*] Maria O’Sullivan is currently undertaking an LLM in international human rights law at the University of Essex.
email: maria_osull@hotmail.com
[1] The State Law and Order Restoration Council (now the State Peace and Development Council) renamed Burma ‘Myanmar’ after they took power. I have therefore chosen to use the proper name of Burma in my article.
[2] See Lindsnaes, Birgit and Lindholt, Lone, ‘National Human Rights Institutions — Standard Setting and Achievements’, Danish Centre for Human Rights, 1999, p.10, and Kjaerum, Mortem, Director, Danish Centre for Human Rights, lecture, 7 June 1999, as referenced in Bouwhuis, Stephen, ‘International Human Rights at Century’s End’ (2000) 25(1) AltLJ 22-23.
[3] Amnesty International, Proposed Standards for National Human Rights Commissions January 1993, AI Index IOR 40/01/93, p.1.
[4] See, for instance, Kingsbury, Damien, ‘Human Rights Prospects for Indonesia’, (1999) 8a Human Rights Defender 6; and Amnesty International Annual Report 2000, internet version <<www.amnesty.org.uk>>.
[5] Human Rights and Equal Opportunity Commission, ‘Bringing them home’ — Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, 1997.
[6] Annex A to General Assembly Resolution, A/Res/48/134, 85th Plenary Meeting, 20 December 1993.
[7] See the Commission on Human Rights’ Resolution: UN Doc E/CN.4/1992/43 (1992) and General Assembly Resolution: UN Doc A/48/134 (1993).
[8] Vienna Declaration and Programme of Action, UN World Conference on Human Rights: UN Doc A/CONF.157/23 (1993).
[9] ‘The Larrakia Declaration: Conclusions, Recommendations and Decisions of the First Asia-Pacific Regional Workshop of National Human Rights Institutions, Darwin, Australia 8-10 July 1996’, as reproduced in [1996] AUJlHRights 18; (1996) 3(1) Australian Journal of Human Rights, 117-120.
[10] The Forum currently comprises HREOC, the National Human Rights Commission of India, the Indonesian National Commission on Human Rights, the Human Rights Commission of New Zealand, the Commission on Human Rights of the Philippines, the Human Rights Commission of Sri Lanka and the Fiji Human Rights Commission. See Asia Pacific Forum home page <<www.apf.hreoc.gov.au>>.
[11] For instance, the resolution which passed the Paris Principles recognised that ‘it is the right of each state to choose the framework that is best suited to its particular needs at the national level’ (A/Res/48/134. 85th Plenary Meeting of the GA, 20 December 1993, art 12).
[12] The others include Nepal, Bangladesh, Mongolia and Papua New Guinea.
[13] Note that SLORC was dissolved on 15 November 1997 and the State Peace and Development Council (SPDC) was formed. However, the SLORC’s four top players remained at the top of the SPDC and the SPDC includes the top 15 military commanders (see Australian Department of Foreign Affairs and Trade home page, Country Information, Burma <<www.dfat.gov.au>>).
[14] Humana, C. World Human Rights Guide, Oxford University Press, 1992, p.55. The survey rated countries on the basis of political and civil rights and freedom. Burma and Iraq scored only 17% in the 1992 survey, the worst scoring countries. In comparison, Australia rated 91%, New Zealand 98%, Canada 94% and the UK 93%.
[15] Freedom House, Freedom in the World: The Annual Survey of Political Rights and Civil Liberties 1999-2000, Freedom House, 2000 — Internet version, Burma section.
[16] HREOC Media Release, 5 August 1999, internet version <<www.hreoc.gov.au>>, p.2.
[17] Media Release, 24 August 2000 <<www.dfat.gov.au>>.
[18] Daley, Paul, ‘PM warned on Burma’, Age, Thursday, 24 August 2000, p.1. The Australian Ambassador also noted that ‘[a]ll the indicators point to the regime being determined to remain in power at all costs, allowing only marginal reforms in the economy and society’.
[19] Amnesty International, Proposed Standards for National Human Rights Commissions, January 1993, AI Index IOR 40/01/93.
[20] Australian Statement to the 56th Session of the Commission on Human Rights, 18 April 2000
<<www.dfat.gov.au/hr/comm_hr/chr56_item18b.html>>.
[21] This is particularly so in light of the fact the Asia-Pacific region is the only area without an international regional human rights arrangement.
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