Byrnes, Andrew; Durbach, Andrea; Renshaw, Catherine --- "Joining the club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the advancement of human rights protection in the region" [2008] UNSWLRS 39

Last Updated: 8 May 2010

Joining the club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the advancement of human rights protection in the region

Andrew Byrnes, Andrea Durbach and Catherine Renshaw[*]

Citation

This paper appeared in [2008] AUJlHRights 4; (2008) 14(1) Australian Journal of Human Rights 63-98.

Abstract

The Asia Pacific Forum of National Human Rights Institutions (APF) is a membership organisation of national human rights institutions (NHRIs) from across the Asia Pacific region. As at the end of 2008, there were 14 full members and three associate members. The underlying eligibility criterion for membership is compliance with the United Nations Principles Relating to the Status and Functions of National Institutions for the Promotion and Protection of Human Rights (the Paris Principles). Full membership is open to those NHRIs which comply with the Paris Principles, candidate membership is available to those which do not do not fully comply with them but which could do so within a reasonable period of time, and associate membership is available to those NHRIs which do not comply with the Paris Principles and are unlikely to do so within a reasonable period.

This article explores the way in which APF membership criteria have been applied by the Forum in its assessment of applications for membership and for upgraded membership (and in its other activities), and considers whether this has resulted in greater compliance by potential and existing members of the APF with the Paris Principles. It examines the APF’s activities in relation to its membership procedures within the framework of writing about transnational government networks as a form of international governance.

Introduction

During the 1990s, the United Nations and a number of governments devoted considerable energy and resources to encouraging the establishment by UN member states of national human rights institutions (NHRIs), and to strengthening existing NHRIs. The issue of national human rights bodies had been on the agenda of the UN almost since its establishment, and the intervening years had seen the evolution of thinking about the most appropriate forms of national human rights bodies, as well as an increase in NGO and governmental support for the notion. The momentum was reflected in and given additional stimulus by the Workshop on National Human Rights Institutions held in Paris in 1991 (United Nations 1991), at which the Principles Relating to the Status of National Institutions (the Paris Principles) were adopted. The Paris Principles, subsequently endorsed by the UN Commission on Human Rights (United Nations 1993) and the UN General Assembly (United Nations 1994), were intended to set out the minimum criteria for a credible and effective NHRI. The Paris Principles have become widely accepted as the essential criteria that a national human rights commission must satisfy if it is to be viewed as credible by other NHRIs, the UN system, governments and NGOs. However, merely satisfying these requirements does not of itself guarantee the effective functioning of an NHRI, and the Paris Principles have been criticised as a partial and formalistic approach to measuring the effectiveness and independence of an NHRI (Murray 2007, 193–94; Okafor and Agbakwa 2002; Asia Pacific Human Rights Network 2003).

The Paris Principles have been used to determine whether a given national institution should be admitted to different groupings of NHRIs, and to enjoy the privileges or rights which flow from membership (Brodie 2006). There are two groupings of particular importance for institutions in the Asia Pacific region — the International Coordinating Committee of National Human Rights Institutions (the ICC) and the Asia Pacific Forum of National Human Rights Institutions (the APF). The ICC represents NHRIs from all regions of the world and liaises with the UN human rights bodies. It accredits NHRIs by reference to their level of compliance with the Paris Principles, assigning each institution to one of three categories following a formal application procedure.[1] Accreditation by the ICC has become increasingly important, as the possession of ‘A’ status entitles an NHRI to participate in a number of ways in the proceedings of the UN Human Rights Council (United Nations 2008a), which was established in 2006 to replace the former UN Commission on Human Rights (2008b) (before which ‘A’ status institutions had over time acquired similar rights).

The other grouping of particular interest to the Asia Pacific region is the APF. The APF is a membership organisation of NHRIs from the region, which also admits new members on the basis of their compliance with the Paris Principles. APF membership brings with it access to an active network of collaboration between the members, and the support of a small but effective secretariat (Fitzpatrick 2001; Durbach et al 2008).

This article examines the practice of the APF in considering applications for membership, as well as in reviewing the status of its current members.[2] The purpose of the inquiry is to identify whether these procedures have had an impact in encouraging applicant institutions and their national governments to comply with the Paris Principles at their establishment; whether, where an institution is not initially in full compliance, the APF’s graduated system of membership has provided an incentive for NHRIs and their governments to bring NHRIs more fully into compliance with those standards; and whether the potential of a review or downgrading of status, or expulsion from the APF, has acted as an incentive to NHRIs that have deviated from compliance with the Paris Principle, to move back into compliance.. The article also briefly considers the role of the APF membership in relation to the work of the ICC, in particular the accreditation process and criteria of the ICC.

The Paris Principles

The Paris Principles were adopted in recognition of a number of political realities. The first is that some governments, in response to international or domestic pressure, may be tempted to establish an institution which is ‘window dressing’ (Burdekin 2007, preface, xi), without real independence from the executive government or with a limited mandate and powers, in an attempt to reap the benefits of being seen to take steps to enhance the institutional protection of human rights.

Second, the Principles reflect the position that while NHRIs are necessarily creations of governments, if they are to perform their functions independently and fearlessly, they may — indeed, almost certainly will — antagonise government officials, who may be tempted to retaliate by taking measures which undermine the status and functioning of the institution, whether by reducing budgets, imposing restrictions on the exercise of powers, or appointing as members persons with close connections with ruling political party interests.

The Principles are thus an attempt to forestall the creation of hollow institutions and to provide protection against the undermining of functioning NHRIs, as well to promote the protection of human rights across the board. They provide that:

• a national institution should be given as broad a mandate as possible based on universal human rights standards;
• that mandate should be clearly set out in a constitutional or legislative text, specifying the institution’s composition and its sphere of competence, and the periods for which members are appointed;
• the composition of the institution and the process for selecting its members should ensure the pluralist representation of the various sectors of society and the possibility for the commission to collaborate with all sectors of the community engaged in human rights issues, in particular non-governmental organisations; and
• a national institution should have adequate funding to support its own staffing and infrastructure ‘in order to be independent of the Government and not be subject to financial control which might affect its independence’.

While compliance with the Paris Principles has been a central part of international efforts to develop and regulate NHRIs, (merely) satisfying the Paris Principles does not necessarily mean that an NHRI will be an effective institution in ensuring the protection of human rights and bringing about change (Brodie 2006). It may even be that such compliance is not even a necessary condition for effective action, but the international community has been prepared to accept that Paris Principles compliance will probably increase the likelihood that an NHRI will be responsive and effective: the Principles are therefore only a rough proxy for the desired end result. Many factors contribute to the effectiveness of an NHRI, and not all of these will be in the control of the commission (including the attitude of the government and the community). Efforts to identify those factors and to bring them about have been the subject of much discussion. Nevertheless, in this article we restrict ourselves to the Paris Principles as an important (albeit partial) component of the effort to help NHRIs be credible and effective, and to make governments and NHRIs accountable to their communities and to the international community.

An NHRI may not be fully compliant with the Paris Principles for a variety of reasons. On the one hand, the commission itself may be responsible for the non-compliance — if, for example, the NHRI makes no effort to build links with different groups in society, or comes out strongly in support of government on a consistent basis or in a situation in which it shows partisanship to one set of political forces. On the other hand, the government may be the reason for actual or threatened non-compliance — for example, if the government proposes to move the NHRI to bring it under close political control of a central ministry or prime minister’s office, or does not have or follow an appointment process which will satisfy the Paris Principles requirements of expertise, diversity and transparency, or starves the institution of funds in response to criticism of government. These actions may occur over the protest of the NHRI.

Thus, criticism of the non-compliance by a particular institution with the Paris Principles may have two target audiences — the commission itself, where it is in a position to do something about the non-compliance — and the government. It is very likely that members of an NHRI will feel strongly about suggestions that it has failed to comply with the Paris Principles and the consequent possibility of loss of its status — something which will stimulate it to correct its own actions and to advocate change to government where the fault lies with government. Here, the sense of belonging to a network of other NHRIs can both reinforce the institution’s sense that it must remedy the situation, as well as provide it with access to support for that position when government is the sticking-point.

So far as government is concerned, whether the fact that its national institution is threatened with downgrading — or has been downgraded — will stimulate it to take action which will remedy the defects, will depend on a variety of factors, including but not limited to its own commitment to human rights and the political advantages of being able to portray itself in international fora as supportive of human rights because of the status and work of its national commission.

The APF as a horizontal (quasi-) governmental network

In exploring the issue of the operation and impact of the membership criteria, we draw on literature on governmental networks as a form of transnational governance, in particular the work of Anne-Marie Slaughter (2004) and others (Keohane and Nye 1974; Raustiala 2002). Slaughter argues that transnational governmental networks of officials in specific areas (such as law enforcement officials, financial regulators, judges, bankers and others) have become a significant and effective way of addressing common or shared problems, outside the framework of the more traditional means of state-to-state cooperation conducted through formal diplomatic means and interaction at high executive levels of heads of state or government or other high-level political representatives.

According to Slaughter, ‘horizontal government networks’ are a ‘key feature of the new world order in the twenty first century’ (Slaughter 2004, 1). In her view, the importance of emerging government networks is that they represent alternatives to the ‘top-down’ approach of international organisations that operate ‘over and above’ states (above, 5). She argues that ‘[t]he structural core of a disaggregated world order is a set of horizontal networks among national government officials in their respective issue areas’ (above, 9), and these ‘creat[e] a new sort of power, authority and legitimacy’ (Anderson 2005, 1257). In the context of this article we undertake a preliminary exploration of how the APF, through its accreditation and membership review procedures, functions as a (quasi-) governmental or transnational public network to promote convergence and conformity with international human rights standards in the form of the Paris Principles.

At first sight, the approach of Slaughter — which focuses on governmental networks — may appear inapt to apply to NHRIs, since these possess a special status within the international human rights framework. NHRIs are not governments or states, nor are they civil society or non-governmental organisations; rather, they occupy a position between the state and non-state actors. While this is certainly the case from the UN perspective, NHRIs are of course organs of the state for the more traditional purposes of public international law (such as the law of state responsibility), notwithstanding their special status in the world of human rights.

Our starting point is thus that applying a network analysis to understand the work of NHRIs (or at least important aspects of their activities) is useful, and that this approach can be applied to NHRIs just as it has been to other institutions discussed by Slaughter and others. While such an analysis may ultimately help us to understand only some of the dimensions of the activities of NHRIs, there is no justification for rejecting this approach a priori because of the ‘special’ status of NHRIs. Furthermore, the networks described by Slaughter include agencies which are very diverse in their constitutional and governmental locations and roles. Some are part of the central institutions of the state (for example, law enforcement agencies); others are established by statutes and given a certain level of independence from the executive government of the day (for example, central banks and other regulatory agencies such as securities commissions); while yet other networks comprise legislators or judges who belong to institutions which may have a constitutional status and role that is distinct from and independent of the executive. NHRIs, with their statutory status and independence from government (ideally), appear to fit well within at least one of these categories of networks — and could be seen as analogous to networks or judges and legislators.

The importance of belonging: networks and membership

We make two assumptions about the APF (and the ICC) as a grouping or network: first, that membership of the network is attractive to potential applicants; and, second and conversely, that the potential or actual loss or downgrading of membership is something which existing members desire to avoid — in each case, there is an incentive for the organisation to conform its structure and activities to the Paris Principles.

The implications of admission to or downgrading of membership, or suspension or expulsion from an organisation, go beyond the institutions themselves and their members and staff. Since NHRIs are the creations of governments, governments also see certain advantages for themselves in their institutions becoming members of such international networks, and may therefore be susceptible to persuasion to ensure that they establish Paris Principles-compliant institutions. On the other hand, governments also pose threats to the independence and effectiveness of NHRIs and may seek to undermine them. If a government’s undermining of its NHRI is likely to lead to a review of the NHRI’s international status, or to its suspension or expulsion from the network, the resulting loss of legitimacy for the NHRI and the bad press this generates for the government may in some circumstances deter the government from taking such steps.

Many benefits may accrue from membership of such a network — to the state, to the individual institution, and to the members and staff of such institutions. The establishment of an NHRI may represent a genuine commitment to improving the institutional protection of human rights; may be an attempt to deflect political criticism of the state’s existing human rights record; or may result from direct pressure from donors in the context of discussions about development aid or other forms of assistance. If a state wishes to reap the political benefits of establishing an NHRI, then the maximum political benefit is likely to be gained if the institution is recognised by its international peers as legitimate — something evidenced by admission to membership of the network, preferably as a full member. (This applies to membership of both the APF and the ICC, and NHRIs in the region are keen to belong to both groupings.)

The importance — or at least the utility — for governments of having established a national human rights commission can be seen in the many pronouncements of states in international fora, especially when presenting their performance on human rights or defending against criticism of their record. In the recently introduced Universal Periodic Review before the Human Rights Council involving peer review of states by other states, states under review have regularly referred to the existence and work of their commissions to evidence their commitment to human rights (Sri Lanka: United Nations 2008c, paras 9–10; Indonesia: United Nations 2008e, paras 11–14). At the same time, other states (and indeed some national commissions themselves[3]) have pointed out shortcomings in the status or independence of the NHRI, resulting on occasion in a voluntary undertaking by the state concerned to take steps to respond to these criticisms (see the case of Sri Lanka: United Nations 2008c, paras 5–81 and 89). The strengthening of a national NHRI is also a component of many development cooperation programs with the United Nations and other donors (for example, Nepal: United Nations Development Program 2002).

When an institution is admitted to full membership of the APF, tangible benefits may flow to that NHRI — including the right to vote and participate in governance of the network and in the setting and maintenance of common standards; access to resources, training and expertise; and the standing to take part in the activities of various international bodies on a formal basis. There are also intangible benefits — the legitimacy that the certification of compliance with the Paris Principles brings both at home and abroad, and access to a community of peers which may provide support if an institution comes under threat domestically (Slaughter 2004, 195–96). For the institution itself and its commissioners and staff, network membership can also provide a sense of solidarity, as well promoting socialisation into the norms of the network:

Socialization can operate within government networks in a number of ways. One of the most interesting is the phenomenon of inducing compliance with collectively generated rules through small, close-knit groups ... [Slaughter 2004, 198.]

Failure to comply with accepted standards will become known among the network members, and may result in serious damage to the reputation of institutions and individuals, the prospect of which may have a powerful influence on their actions. Slaughter notes:

Majone argues that the credibility of each member of a network is enhanced because each member must safeguard its reputation within the network and it can only do so adhering to common norms. Outside observers understand how these pressures to conform act as safeguards and hence with accord the network participant greater legitimacy. [Slaughter 2004, 196.]

The APF — origins and purpose

The APF is a non-profit membership organisation of NHRIs in the Asia Pacific region that supports the establishment and strengthening of NHRIs in the region. The APF ‘provides a framework for national human rights institutions to work together and cooperate on a regional basis through a wide range of services, including training, capacity-building, networks and staff exchanges’ (APF 2008a; Durbach et al 2008). The Forum was established as an informal association at a meeting of interested institutions from the region held in Darwin in 1996.[4] By the time of the third meeting held in Indonesia in 1998, both the Philippines National Human Rights Commission and the Sri Lankan Human Rights Commission (established in 1997: Gomez 1998), had joined the commissions from Australia, India, Indonesia and New Zealand, to make up the six-member APF at that time. Ten years later — by late 2008 — the APF had expanded to 14 full members and three associate members (Fiji resigned its membership of the APF in April 2007). The APF has a small secretariat, which has been based in Sydney since the inception of the APF.

In 2002 the APF was incorporated as a company limited by guarantee under Australian law, in order to deal with a series of practical problems that had arisen from the fact that neither the APF as such nor its secretariat had any separate legal identity (APF 1998).

The governing body of the APF is the Forum Council, made up of one person nominated by each of the full members (with an additional non-voting member nominated by the Australian Human Rights and Equal Opportunity Commission (HREOC), necessary to satisfy the requirements of Australian corporate law).[5] In 1999 the APF established an Advisory Council of Jurists to provide the Forum Council and APF members with advice on human rights issues which the Forum Council refers to the Advisory Council.

Membership of the APF

Under the APF Constitution, there are three categories of membership of the Forum: full members, candidate members, and associate members. Applicants are required to complete a detailed application which permits the Forum Council, with the assistance of analysis from the Secretariat, to assess the category of membership for which the institution qualifies.

• Full members: open to ‘a national human rights institution in the Asia Pacific region which in the opinion of the Forum Councillors complies with the Paris Principles’ (APF Constitution, r 11.1(a)).
• Candidate members: open to ‘a national human rights institution in the Asia Pacific region which in the opinion of the Forum Councillors could comply with the Paris Principles within a reasonable period but does not do so at the time of the application for membership and which commits, in a form acceptable to the Forum Councillors, to take active steps towards compliance with the Paris Principles within a reasonable period’ (r 11.2(a)).
• Associate members: open to ‘a human rights institution in the Asia Pacific region which, in the opinion of the Forum Councillors, does not comply with and is unlikely to comply with the Paris Principles within a reasonable period’ (r 11.3(a)).

Full members are entitled to nominate a member of the Forum Council, to appoint a member of the Advisory Council of Jurists, and to preferential access to resources and support. Candidate members and associate members do not have such rights. The status of candidate member is seen as a stepping-stone to full membership, within a defined time period and following the taking of specific steps to remedy deficiencies in compliance with the Paris Principles. Associate membership is a status which may lead to candidate or full membership, though not inevitably so: an associate member may continue in that status indefinitely, though all the NHRIs so far admitted to associate membership have subsequently sought admission as full members, or are intending to do so.[6]

Review of membership status

The APF Constitution provides for scrutiny of an institution’s compliance with the Paris Principles, not only at the time of its application for membership or for progression to full membership, but also if circumstances arise which suggest that an existing member is no longer compliant.

The Forum Councillors ‘may, on their own motion and at any time, decide to review the compliance of a full member with the Paris Principles’ (APF Constitution, r 11.4(a)(1)). A full member must inform the APF ‘if there has been any change to the constitutional and/or legislative base or administration of the institution which materially impacts upon its compliance with, or ability to comply with, the Paris Principles’ (r 11.4(a)(2)). In each case, the Forum Council must meet to consider whether the member continues to comply with the Paris Principles (r 11.4(b)(1)). If the Forum Councillors conclude that the institution is no longer in compliance, they ‘may ... expel’ the member (r 11.4(b)(2)); no specific provision is made for suspension.

Similarly, the Forum Councillors may ‘decide to review the commitment of a candidate member to take active steps to comply with the Paris Principles within a reasonable period’ (r 11.5(a)(1)). A candidate member must also inform the APF if there has been any significant change ‘which materially impacts upon its commitment or ability to take those active steps to comply with the Paris Principles within a reasonable period’ (r 11.5(a)(2)). In each case, the Council must meet ‘to consider whether the institution is taking active steps to comply with the Paris Principles’ (r 11.5(b)(1)). If the Council decides that the institution is not taking those steps, it may expel the member (r 11.5(b)(2)); the option of suspension or of a downgrade to associate membership status is not explicitly provided for.

No specific provision is made for the review of the status of an associate member (other than when the member wishes to be admitted to a higher level of membership). However, the Forum Councillors have a general power to expel members ‘if in their absolute discretion, they decide it is not in the interests of the Forum for the institution to remain a member’ (r 12.2(a)).

The practice of the APF in relation to admission to membership and review of membership status

This section of the article examines the practice of the APF in considering applications for membership and undertaking reviews of the status of members, to evaluate whether these processes promote compliance with the Paris Principles. The practice takes place at two levels — formally (for example, the lodging of a written application for admission, or a decision by the Forum Council to review an institution’s compliance), or informally (for example, an approach to the Secretariat by a national institution seeking admission as a member or to move to a higher category of membership. An informal approach from an NHRI may also take the form of a request for advice on whether it is compliant with the Paris Principles or the steps it should take to ensure compliance. The Forum Council or the Secretariat may also take up concerns about non-compliance or potential non-compliance informally with a national institution before a formal review is instituted.

The relevant practice of the APF takes a number of forms:

• the provision of assistance and advice to:
  • — governments which are in the process of setting up new NHRIs to ensure that those new bodies comply with the Paris Principles;
  • — existing NHRIs (both old and new bodies) which wish to apply for membership of the APF;
  • — existing APF members which wish to apply for a higher level of membership;
  • — existing APF members which have been placed on notice of a downgrading by the ICC, or whose accreditation has been suspended or downgraded by the ICC; or
  • — existing APF members which are the subject of regular review by the ICC; and
• formal consideration by the APF of:
  • — applications for membership;
  • — applications by existing members for change of membership status; or
  • — the institution of a review into the status of an existing member and the conduct of such a review.
    

Applications for admission

Decisions on whether an institution should be admitted to the APF lie within the discretion of the Forum Council. Applications for membership have been made public for some years now in the interests of transparency. In the early stages of the APF’s work, there was no such formal procedure: the five initial members of the group established the Forum by informal agreement among themselves, no doubt assuming that they were all Paris Principles-compliant. The Human Rights Commission of Sri Lanka, established in 1997, was admitted as a full member of the APF apparently without going through a detailed formal examination of its application, though the fact that the APF and a number of its members had been involved in supporting efforts to establish that commission meant that its features were sufficiently known to APF members. The next two members to join were the Fiji Human Rights Commission (established in 1999 and admitted to the APF in the same year) and the Nepal National Human Rights Commission (set up by legislation in 1997, with the first commissioners appointed in 2000), which applied for and was admitted to full membership in 2000. Each of these applicants was required to submit a detailed application, which was subject to analysis by the APF secretariat (APF 1999). In each case, the Secretariat considered that the applicant institution was compliant with the Paris Principles and recommended that the Forum Council admit it as a full member.

Thus, prior to the incorporation of the APF, there were eight APF members, all of which were recognised under the 2002 Constitution as full members (APF Constitution, r 11.1(b)). The Mongolian National Human Rights Commission applied for membership in 2001 (APF 2001b); its application was approved in principle (APF 2001c), but its admission to membership was deferred until 2002 when the APF was formally incorporated. Thailand also applied in 2001 (APF 2001a). Since its application did not contain sufficient information to assess the commission’s independence, the Secretariat recommended that further information be obtained and, if sufficient, then the Thai commission should be admitted at the next meeting in 2002, a result which accordingly followed.

Since the formal incorporation of the APF in 2002, there have been further applications for membership considered, from the following institutions:

• Human Rights Commission of Malaysia (2002);
• National Human Rights Commission of Korea (2002);
• Afghanistan Independent Human Rights Commission (2004,* 2005);
• Jordan National Centre for Human Rights (2004,* 2007);
• Palestinian Independent Commission for Human Rights (2004,* 2007);
• National Society for Human Rights of Saudi Arabia (2007);
• National Human Rights Committee of Qatar (2005,* 2008);
• Office of the Provedor for Human Rights and Justice of Timor-Leste (2005,** 2007);
• Human Rights Commission of the Maldives (2007*);
• Iranian Islamic Human Rights Commission (2008);
• Office of the Commissioner for Children, Tasmania, Australia (2002*); and
• Office of the Commissioner for Children, New Zealand (2002*).[7]

In the membership application process, the APF utilises the standards of the Paris Principles in a number of ways. First, the Secretariat undertakes a detailed analysis of the institution’s conformity with the Paris Principles and makes recommendations to the Forum Council. Those recommendations may be to admit immediately; to take an in-principle decision to admit, provided certain information is provided or specific steps taken; to defer final consideration of an application; to recommend admission as a candidate member on the basis of specific commitments made by the institution; to recommend admission as an associate member; or to decline an application for membership.

On a number of occasions, an applicant has been refused admission as a full member, or admitted at a lower level of membership, due to a failure to comply with one or more of the Paris Principles. In other cases, admission has been granted in principle, provided additional information satisfied the Council that there was compliance, or deferred until further information about compliance became available or mooted events (such as the passage of legislation) occurred.

In a number of applications for admission to membership by national institutions, the APF has relied on the Paris Principles to encourage these institutions to take steps to bring themselves into line with the international standards. There have been many compliance issues which have arisen in these cases, but the recurring ones have been the legal status of institutions, in particular whether establishment by executive decree is sufficient; the requirement for pluralism and whether appointment procedures and work methods will ensure pluralistic representation; the nature, length and terms of appointment of commissioners; and the budgetary situation of the institution, in particular whether the NHRI has an adequate budget from government over which the NHRI has financial and administrative control. The following discussion of applications by individual institutions illustrates how a number of these factors may be present in individual cases, sometimes making it difficult to determine which factors were the determinative ones (the decisions are based on an overall assessment, so some factors are of cumulative importance).

Jordan National Centre for Human Rights (2004, 2007)

On a number of occasions, applicant institutions have been established by executive decrees. The APF has taken the view that establishment of a national institution by executive decree does not satisfy the requirements of Art 2 of the Paris Principles, that the mandate of a national institution ‘be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence’.

The application of the Jordan National Centre for Human Rights (JNCHR), first submitted in 2004 (APF 2004e), illustrates the way in which the Forum Council has scrutinised consistency with the Paris Principles. The JNCHR had been established in 2002 by a royal decree and a provisional law made pursuant to Art 94(1) of the Constitution of Jordan and a decision of the Council of Ministers (an inter-sessional law which was required to be placed before the National Assembly for passage at its next session).

The JNCHR maintained that the existing temporary legislation was sufficient to qualify it for full membership. In its analysis, the Secretariat noted that the Forum Council had previously not considered that a decree provided a sufficiently secure foundation for the independence of a national institution. The issue was complicated by the fact that the ICC had been persuaded that the French text of the Paris Principles contemplated that a national institution established by an executive decree would be consistent with those standards. However, in addition, when the application was considered, the temporary law setting up the JNCHR was before the National Assembly, the upper house of which had rejected a number of relevant amendments, leading to the return of the legislation to the lower house.

Furthermore, the Secretariat and apparently the Council considered that the provisions in the temporary law relating to the appointment and termination of appointment of the chairperson and board of trustees — which permitted termination by royal decree on recommendation of the Prime Minister, without qualification — did not comply with Art 6 of the Paris Principles, which provides that the appointment of members to a national institution shall be by an ‘official act which shall establish the specific duration of the mandate’. The Council also expressed concern on the issue of pluralism, since the legislation did not specifically address the issue in relation to the composition of the board of trustees of the JNCHR. The JNCHR noted that in practice there were a number of sectors represented, as well as four women among its members.

The Forum Council decided that associate membership was the appropriate category and undertook to assist the JNCHR to take whatever steps were necessary to become fully compliant with the Paris Principles (APF 2004b, 2, para 7).

The JNCHR applied once again for full membership in 2007, by which time it had also had applications for accreditation considered by the ICC, in April 2006 and March 2007. On each occasion, the ICC considered that the JNCHR was not in full compliance with the Paris Principles, and awarded it B status. The ICC raised concerns about adequate funding for the JNCHR, as well as the issues of pluralism and the selection and appointment of the governing body (APF 2007a).

In September 2007, the APF Council took into account these factors and additional information relating to them supplied by the JNCHR. Of particular importance was the fact that the JNCHR had now been put on a firm legislative basis by a law passed in late 2006 and a new board of trustees had been formed (and the unqualified power to remove its members had been removed). However, the Secretariat also raised the issues considered of importance by the ICC — namely, budget, application of the legislation to non-citizens, and the requirements of pluralism in the appointment of the board of trustees (above, 81–82). While the APF Secretariat considered that the process of appointment did not satisfy all the criteria suggested by the ICC, it concluded that the JNCHR was largely in compliance with them and that the composition of the board was in fact pluralistic (above, 82–83). Accordingly, it proposed admission of the JNHCR to full membership, a recommendation the Council adopted (APF 2007c, para 7).

Afghanistan Independent Human Rights Commission (2004, 2005)

The Afghanistan Independent Human Rights Commission first applied for membership of the APF in 2004 (APF 2004a). The commission had initially been established by presidential decree. Provision was then made in the Constitution for the commission, and legislation was envisaged to define its structure, membership and powers. At the time of the initial application, there was no information available to the APF about intentions to enact the relevant legislation. Another issue which arose was the extent of the government financial contribution to the commission. No information was available to the APF in relation to the commission’s budget. Although the mandate of the commission was broad in scope, it was clear that the commission had not made the case for eligibility for full membership. The Council accordingly decided to admit the commission as an associate member.

Within a year, the situation relating to the enactment and contents of the legislation establishing the commission had become clearer, and information about the budget was also available. The only contentious issue in this regard was the fact that the commission was largely dependent on donor contributions for its budget; the government’s contribution was confined to land for commission premises. However, the Forum Council considered thatc in the circumstances of a society in or emerging from conflict, in-kind contributions of this sort would be sufficient, at least for a time (APF 2005a, at 73). Accordingly, the Afghanistan commission was admitted in 2005 as a full member.

National Human Rights Committee of Qatar (2005, 2008)

In 2005 the National Human Rights Committee of Qatar applied for candidate membership of the APF (APF 2005b). There were a number of respects in which the committee fell short of full compliance with the Paris Principles.

The first issue was that the committee was established by a decree of the Emir of Qatar, on the advice of the Council of Ministers. The committee’s membership comprised five members representing civil society selected from among human rights sectors and a representative of each of a number of government ministries, and the APF Secretariat raised the issue of how the appointment process guaranteed the pluralistic representation of Qatari society. The government members of the committee were also entitled to vote, although Art 4(e) of the Paris Principles provides that if government representatives participate in an NHRI they should ‘participate in the deliberations only in an advisory capacity’.

Although the committee indicated that it was proposing amendments to the decree to eliminate voting rights of government representatives, it was not able to indicate a specific timeframe within which this would occur. Accordingly, the Secretariat concluded that the condition for candidate membership — that it be shown that the applicant could comply with the Paris Principles within a reasonable period — was not satisfied and recommended admission as an associate member (above, 146). The Council followed this recommendation (APF 2005d).

In 2008 the Qatar National Human Rights Committee applied for a review of its status, seeking an upgrade to candidate member status (APF 2008c). The committee noted that it was now established by legislation rather than an executive decree, that the government members of the committee were now no longer able to vote on decisions taken by the committee, and that the number of civil society representatives had been increased from five to seven. The Secretariat analysis suggested that the APF Council needed to examine whether the committee was established by a constitutional or legislative instrument, and whether the composition and appointment procedures were sufficient to meet the requirements of transparency and pluralism (APF 2008c, 32). The Forum Council, while congratulating the committee on the steps it had taken to comply with the Paris Principles, deferred review of the committee’s status and requested the Secretariat to seek further information (APF 2008d, para 8).

Provedor for Human Rights and Justice of Timor-Leste (2005, 2007)

The Provedor for Human Rights and Justice of Timor-Leste first applied for membership of the APF in 2005 (APF 2005c). At the time, legislation establishing the provedoria had been enacted and the provedor and two deputy provedors had been appointed. However, the institution did not have staff employed to carry out the Commission’s work program, or all the necessary infrastructure such as computers, and the office was likely not to be open officially to the public for another five months. The APF Secretariat recommended admission as a full member ‘[s]ubject to Forum Councillors being satisfied that the provedor can demonstrate its capacity to maintain secure and long-term financial stability and that it will commence its recruitment of qualified staff within a reasonable period of time’ (above, 103).

However, the Forum Council took a slightly different view. While information provided to the Council led it to conclude that the staffing of the institution would be completed very soon (APF 2007e, 5–6), the Council concluded nonetheless that the provedoria was still not in full compliance with the Paris Principles and therefore decided to admit it as a candidate member. The concerns of the Council related to the requirement of ‘pluralism’, in particular the fact that the institution was headed by a single individual rather than comprising a number of members or commissioners, and that this would make it impossible for the institution to be representative of the social forces of the society they serve. They also noted that the provedor was a man, and had appointed two men as deputy provedors (APF 2007b).

Admission as a candidate member involves the making of commitments by the applicant to take steps necessary to bring itself into full compliance within a reasonable time. In this case, the provedor undertook to establish an ‘advisory council comprised of representative stakeholders of Timor-Leste society to ensure pluralism’ (above, 86). Initially, the advisory body was to be established administratively, pending its establishment as a statutory body, and would comprise members from a wide range of sectors of Timor-Leste society (above, 87). When the provedoria submitted its application for full membership in 2007, the Secretariat concluded that, if the Council was satisfied that by the time it decided on the application the advisory council had been established, then the provedoria would have complied with the conditions placed on it by the Council in admitting it as a candidate member, and should therefore admitted to full membership. It also recommended that the Council should request the provedoria to report on the operation of the advisory council and the foreshadowed legislative amendments at the next annual meeting of the APF (above, 91). The Council decided to admit the provedoria as a full member (APF 2007c).

National Society for Human Rights of Saudi Arabia (2006)

In 2006 the National Society for Human Rights of the Kingdom of Saudi Arabia applied for full membership of the APF (APF 2006a). The society had been established by royal decree and commenced operations in 2004. There was no specific provision set out in the royal decree or the society’s Constitution about the process of selection or appointment to the General Assembly of the society, nor were there any details about the length of terms; the possibility of reappointment; privileges and immunities enjoyed by members; pluralism in the composition of the society’s board of trustees; or criteria for loss of membership in the General Assembly.

The Secretariat raised a number of concerns about compliance with the Paris Principles. In addition to the fact that the society was established by royal decree, the Secretariat noted in relation to the society’s mandate that it provided that the society was to endeavour to protect the human rights according to the Constitution of Saudi Arabia and various UN and other international instruments ‘so long as they do not contradict with Islamic Shariah (Islamic Laws)’. The Secretariat suggested that the Forum Council might wish ‘to raise the issue of possible conflicts between international human rights law and Islamic Shariah, particularly with regard to criminal penalties, gender equality and family law’ (above, 110–11). The Secretariat also raised concerns that there were no provisions relating to pluralism, and that the processes of appointment of the General Assembly were unclear.

The Secretariat noted that if the Council did not consider full membership appropriate, then either candidate or associate membership might be available. It noted that the mandate of the society was sufficiently broad to comply with the Paris Principles. The Secretariat also drew attention to the existence of another body entitled the ‘Human Rights Commission’, which was established by royal decree in 2005. However, as that was a body intended to be part of the executive government, its existence was not seen as a bar to associate membership. The Secretariat recommended that the society be admitted to associate membership (above, 114).

However, the Forum Council decided to defer the finalisation of the society’s application, referring to the ICC’s work on finalising its accreditation procedures — though it appears that the society fell short of the Paris Principles in many important respects (APF 2006b). It did, however, request the Secretariat to ‘offer technical cooperation and assistance to the society regarding compliance with the ‘Paris Principles’ (above, para 13). Although the Secretariat subsequently made approaches to the society, there does not appear to have been any further progress in relation to this application. This appears to have been the only case in the APF’s history in which an offer of admission to some level of membership has not been not been made on first application.

Iranian Islamic Human Rights Commission (2008)

In 2008 the Iranian Islamic Human Rights Commission applied for full membership of the APF (APF 2008b). The analysis provided by the Secretariat raised a number of issues relating to compliance with the Paris Principles. These included the fact that the commission had been established by a judicial decree rather than by legislation or a constitutional provision, and that there was limited information provided by the commission about the formal process of appointment of members of the commission, their tenure and grounds for their dismissal. The Secretariat also raised concerns about the pluralism requirement of the Paris Principles, noting that the name of the commission included a reference to a specific religion and suggesting that it would be useful to clarify the manner in which the Commission worked in the protection and promotion of the rights of members of religious minorities (APF 2008b, 25). The Secretariat recommended that the commission be awarded associate status, and the Forum Council agreed. However, the Iranian Islamic Human Rights Commission declined to take up the offer of admission to APF on this basis (APC 2008d, para 8), presumably because it considered that it should have been admitted as a full member. This is the only occasion on which an applicant has declined an offer to be admitted to the APF.

National Human Rights Commission of the Maldives (2007)

The application of the National Human Rights Commission of the Maldives (APF 2007f), considered in 2007, provides a further example of how the process can move an institution towards a higher level of compliance with the Paris Principles. The commission was initially established by a presidential decree on 10 December 2003, and was subsequently (re)established in 2005 by the Human Rights Commission Act, which set up the Commission as a constitutionally established autonomous body. This legislation underwent various amendments to bring it into conformity with the Paris Principles, a process into which the APF had some input. However, Art 6 of the Act set out certain eligibility requirements for appointees to the commission, including that any appointee ‘must be Muslim’. This stipulation was inconsistent with the requirement of Art 4 of the Paris Principles that the ‘composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) ...’.

The commission itself recognised this inconsistency and it indicated that, although there were plans to amend the legislation, this would be unlikely to occur within two years. The commission itself suggested that therefore the appropriate category of membership would be associate membership and the commission satisfied the other guidelines for associate membership adopted by the APF. Accordingly, the Secretariat recommended and the Forum Council decided on the admission of the Maldives commission as an associate member, though in a manner which was clearly encouraging of the prospects of full membership once the relevant legislative changes were made (APF 2007g).

National Human Rights Commission of Malaysia (2002)

In 2002 the Malaysian National Human Rights Commission applied for full membership of the APF (APF 2002a; Whiting 2003). The Secretariat analysis concluded that the commission was in compliance with the Paris Principles and recommended admission, and sent to the Councillors for approval in circulation. While some members approved, the Fiji Human Rights Commission raised a number of concerns. It referred to the importance of the right to equality, referred to the Fiji Constitution’s guarantees of the principle and its own work in the area, and underlined the importance of ensuring that any policy of special measures deviating from equality required a government to justify the policy in the light of historical and contemporary circumstances (a reference to the Malaysian government’s policy of preferring indigenous Malays over other ethnic groups in Malaysia in certain areas). It sought clarification of the Malaysian commission’s position on equality as a fundamental human right, and also whether the (possible) representation on the commission of representatives from the private sector could lead to conflicts of interest (especially in the area of economic, social and cultural rights), and was consistent with the requirement of independence.

The Malaysian commission responded by reference to its commitment to the principles of equality guaranteed in the federal Constitution and the Universal Declaration, and noted that ‘national policies based on affirmative action are accepted as a rational means to address existing inequalities amongst different groups, whether identified by ethnicity or other, as a consequence of past policies so long as it is time limited or until those inequalities are adequately address. This is the case in Malaysia’ (above, 35) It also noted that in the case of any conflict of interest on the part of a member of the commission, the member would be expected to recuse himself or herself from any decision or discussion related to the matter (above). The Forum Council admitted the Malaysian commission as a full member following consideration of this material (APF 2002c, para 6).

Palestinian Independent Commission for Citizens’ Rights (2003)

The Palestinian Independent Commission for Human Rights (PICCR) applied for full membership of the APF in 2003 (APF 2003). The commission was established by presidential decree in 2003, although provision for a human rights commission to be established by law was included in the Basic Law of Palestine and in the new draft Constitution of Palestine of February 2003. This application raised a number of standard issues, as well as some novel ones.

The first issue was the status of Palestine and whether a ‘national’ human rights institution had to be created by an entity recognised as a ‘nation State’ under international law. The second issue was the creation of the commission by executive decree rather than constitutional or legislative provisions (at the time of its creation, there was no Palestinian Parliament to create such an institution). Furthermore, the decree did not specify the detailed mandate or composition of the commission, this being left to the institution to do by way of internal by-laws. The PICCR did not receive any funding from the Palestinian Authority, and was entirely dependent on donor funds to support its activities — something which had not been the case with any other APF member and appeared inconsistent with the requirement for government support in Art 5 of the Paris Principles, designed to ensure that governments are invested in their national institutions.

The Forum Council decided to admit the PICCR as an associate member (APF 2004b, at para 6), considering that the special status under international law of the Palestinian Authority and the Palestinian Territories were sufficient to qualify the PICCR as a ‘national’ institution, but that the lack of a legislative basis was a major impediment to admission to a higher level of membership.

The issue of the PICCR’s dependence on donor support raised a difficult issue. The requirement that a government provide financial support for its NHRI may be particularly difficult to satisfy in countries emerging from conflict, where systems of collection of taxation or other revenues may not be functioning properly or at all. The APF has taken these difficulties into account when considering membership applications, and noted that the NHRIs from Afghanistan and Palestine request donors to contribute funds to support the activities set out in the institutions’ strategic plans (as opposed to the donors’ suggesting activities for funding). At the same time, the APF has stressed the need for states to contribute at least some funding, while recognising that it may not be the majority during a transitional period. In the case of the PICCR and the Afghanistan commission, the institutions were able to point towards some form of direct or in-kind state assistance, including the provision of premises for the institutions’ offices.[8]

Informal discussions and approaches

The examples given above relate to the formal aspects of the membership application process. The use of the Paris Principles framework in a manner which influences the final form of an NHRI has also taken place before the submission of an application (indeed, during discussion on the establishment of a commission or the content of draft legislation), and before the Secretariat prepares and formal analysis of the compliance of a particular institution with the Paris Principles. Although not as visible, the impact here can be very significant in helping to bring about compliance the Paris Principles.

Examples of this influence are the discussions which took place between the Forum and the Indonesian commission prior to Indonesia’s admission, which saw it move from its initial establishment by presidential decree to an institution with a legislative basis (APF 2003, 9 n 16). More recently, in 2008 the APF Secretariat offered detailed advice to Bangladesh on that country’s draft National Human Rights Commission Ordinance 2007. On its face, the draft legislation gave rise to a number of compliance concerns. These included whether the mandate of the Commission was sufficiently broad (the draft limited it to constitutional rights and the treaties to which Bangladesh is a party), pluralism issues in the procedure for selection of members (the selection committee comprises only a judge and government officials), arrangements for the secondment of government officials to the commission, and the exclusion of the military justice regime from the jurisdiction of the commission (Bangladesh 2007, cll 2(f), 6, 22(3) and 20).

Review of membership status

As noted earlier, the APF Constitution provides for formal review of the status of full and candidate members. The Forum Council may undertake a review of the status of members at any time on its own initiative. The review process may also be initiated by an individual member where it considers constitutional, legislative, administrative or other changes have occurred which have a material impact on its ability, in the case of a full member, to comply with the Paris Principles or, in the case of a candidate member, to take the steps it has committed to take in order to bring itself into compliance. There is a power to expel members at the end of these reviews, as well as a more general power to expel. It is not clear whether there is a power to suspend membership — it is not explicitly provided for, but it may be argued that the power to expel implies the less drastic power to suspend.

Formal processes of review are likely to be adopted as a last resort and may be more likely to result in the resignation or expulsion of a member than bring it into compliance in the short term. The exercise of these powers may thus turn out to be more for reasserting the integrity of the network and its shared norms than for bringing about an immediate return to compliance by the non-compliant institution. Accordingly, informal discussions, offers of technical assistance, and visits to advise may be more effective in bringing about change than a more public and potentially condemnatory procedure. But there will be cases where the national institution — or its government — will be intransigent and the network may be left with little option other than expelling a member if it is to retain its credibility.

The formal review procedure has been little used by the APF. There has been one example of a self-initiated review — in 2004, when New Zealand brought to the attention of the APF changes to its domestic legislation (APF 2004d). The Council concluded that the changes had not affected the commission’s ability to comply with the Paris Principles and reaffirmed its full membership (APF 2004b, para 6).

The only case in which the Forum Council has so far exercised its power to initiate a formal review of a member’s status was in relation to the Fiji Human Rights Commission. This followed a coup in Fiji in late 2006 and subsequent actions by the commission which were seen by many as providing support for the coup and not maintaining sufficiently its independence of the new government (Renshaw et al 2008). The case illustrates how the ICC accreditation and review procedures and those of the APF relate to each other.[9]

The ICC was the first to act following the overthrow of the democratically elected government of Fiji in early December 2006, initiating a review of the Fiji commission’s compliance with the Paris Principles. On 22 March 2007, on the basis of a recommendation from its Subcommittee on Accreditation, the ICC suspended the Fiji commission from its ‘A’ status until the commission could provide information to show that it was still in compliance with the Paris Principles (APF 2007d, 166). In response to a request in from the ICC to provide information as to whether it still complied with the Paris Principles and why the suspension should be lifted, the Fiji commission resigned from the ICC.

The APF had also decided to undertake a review of Fiji, following the appointment of an acting chairperson of that commission by the military government. Although the Fiji commission initially appeared willing to cooperate, as time passed this cooperation was not forthcoming. Meeting on 20 March 2007, the Forum Council decided to continue with the review and to send a mission to Fiji to hold discussions with the Fiji commission and other interested parties, and removed the Fiji commission as APF chairperson for the period of the review. Although on 2 April 2007 the commission advised the APF ‘that the Fiji Human Rights Commission is agreeable to a review by the APF and looks forward to discussing with the secretariat the terms of reference, timing, as well as the selection of the person or persons to undertake the review’ (above), on 3 April 2007 the Fiji Commission resigned from the APF. This is the first case in which a member has left the organisation and the case can seen as an example of the network enforcing its norms and preserving its reputation by broadcasting ‘accounts of a particular member’s actions and create a context in which it matters’ (Slaughter 2004, 196).

In contrast, a different approach was taken in relation to Nepal during a period when the Nepal National Human Rights Commission was perceived as falling short of the standard of independence of government as the result of the appointment of new commissioners by the King of Nepal, who had assumed absolute power in a coup in 2005 and appointed new commissioners following the expiry of the terms of the previous commissioners in May 2005. Following much criticism of the commission and the appointment process (Nepal-NHRC 2005), the commissioners appointed in 2005 resigned in July 2006. The ICC placed the Nepal commission under review in April 2006, and kept it under review at meetings of its Subcommittee on Accreditation in October 2006 and March 2007. It finally reaccredited the commission with ‘A’ status in October 2007, following the appointment in August 2007 of new commissioners by an elected government and amendments to the legislation (ICC 2007b, para 5.1). During this time, the APF did not institute its own review but engaged in engaged in a dialogue with the commission, and the Secretariat provided advice to the commission on steps that it could take in order to address the concerns about its status. The APF has adopted a similar approach in relation to the Malaysian commission, when the ICC placed the ‘A’ status of that commission under review in 2007, and also in relation to the Sri Lanka Human Rights Commission when it was downgraded by the ICC to ‘B’ status (discussed below). Rather than institute its own review, the APF offered technical advice to the Malaysian and Sri Lankan commissions to assist it in its efforts to respond to the concerns of the ICC.

By contrast with the ICC procedure, the APF has no procedure for regular review of its members. As a result, the institutions which were admitted to the APF early in its history have, for the most part, not been subject to the type of review that later applicants for membership and for upgrading of membership have faced (Brodie 2006). However, each of those institutions has been subject to review by the ICC, though this raises the question of the utility of having two very similar procedures to evaluate consistency with the Paris Principles.

Relationship between the AFP and ICC accreditation and membership procedures

Formally, the ICC and APF accreditation procedures are independent of each other, although both are assessing compliance with the Paris Principles. The APF procedures developed and were elaborated at a time when the ICC process was less well-developed than it has now become. Consistency in accreditation decisions is plainly desirable, and the APF takes into account the decisions and general principles adopted by the ICC (and vice versa). There is some discussion as to whether, given the improvements in the ICC procedure, the APF should continue to have its own accreditation procedures. A principal advantage of the APF procedure is that, while the ICC and its Subcommittee on Accreditation consist of regional representatives, all full APF members are involved in decisions on APF membership applications. Such direct involvement has the advantage of reinforcement of network norms and sense of solidarity in the smaller, regional group. To the extent that an understanding of regional or national conditions is required to make a proper assessment of compliance, it may be argued that states in the region are more likely to have that understanding. A predictable riposte might be that these are universal standards and a regional grouping may be inclined to be to dilute standards (though there is no strong evidence of this in the practice of the APF to date).

On the other hand, it can be argued that having the two procedures involves unnecessary and duplicative administrative work, with the possibility of inconsistent decisions. It may be that a separate evaluation by the APF will ultimately become unnecessary, with the APF accepting ICC accreditations as the basis for admission decisions. The only concern might be over the APF’s control of its own membership if all accreditation decisions were in effect delegated to the ICC (even with APF participation in the ICC meetings). If the ICC downgraded a member, this might have implications for the institution’s membership of the APF. While the APF might in most cases agree with ICC decisions, what would the situation be if it did not? Additionally, the current situation allows the APF to play the role not just of evaluator, but also of technical adviser and supporter for member institutions whose accreditation is being considered by the ICC — though this would also be possible if there were only one accreditation process.

In addition to the case of Fiji mentioned above, there have been a number of other cases in which action by the ICC to review the status of institutions has required a response from APF to reflect the actual or potential downgrading of status by the ICC; it would clearly be undesirable if the two institutions rated the conformity of an institution with the Paris Principles differently. For example, the APF faced this situation in relation to the Human Rights Commission of Sri Lanka, about which compliance concerns had been expressed because of the appointment of the last round of commissioners which had not followed the stipulated procedure, as well as because of the commission’s methods of operation. In October 2007, following a deferral of a decision on reaccreditation earlier that year, the ICC Subcommittee on Accreditation recommended the reaccreditation of the Sri Lankan commission as ‘B’ status (not in compliance) (ICC 2007b). The ICC accepted this recommendation and downgraded the status of the commission (ICC 2007a, 6). If the APF and the ICC are to maintain consistent classifications, then such a downgrading would appear to have required a response from the APF Council. Rather than undertaking a formal review of Sri Lanka’s membership status, APF members decided that it would defer such a review if the commission reapplied to the ICC for a review and accepted an APF mission to discuss compliance with the Paris Principles.[10] This mission visited Sri Lanka in September 2008 to discuss the ICC decision and ‘practical steps that could be taken to support the work of the Commission’ (APF 2008e). Similarly, in April 2008 the Accreditation Subcommittee of the ICC put the Malaysian Human Rights Commission on notice that it would be recommending that the commission’s status would be revised to ‘B’ status, and gave the commission a year to provide evidence sufficient to establish a claim to ‘A’ status (ICC 2008a). The APF consulted with the commission about the issues raised by the ICC and what could be done to address them.

The elaboration of the accreditation procedures of the ICC in the last couple of years has meant that the relationship between the ICC accreditation process and that of the APF has become more complex. It is plainly undesirable that the two procedures result in inconsistent classifications for the same institutions. It appears that the two points of examination add to the overall rigour of the scrutiny of compliance with the Paris Principles. An actual or threatened reclassification by the ICC triggers a formal or informal review or offer of consultation at the APF. This provides further opportunities for interaction with the commission (and state) concerned, which may contribute to the shortcomings of the institution concerned being addressed. The APF seems to be developing a role as a provider of technical assistance to, and perhaps even an advocate for, APF members the status of which is under review by the ICC, either as part of its regular review of institutions or in cases in which a special review is being undertaken. The challenge here is to ensure that the advice and support is provided in a manner which does not compromise the essence of the Paris Principles. However, until we see the upshot of these three cases, it will be difficult to see whether this approach will be more effective to bring about conformity with the network norms than the institution of a formal review.

Nevertheless, given the improvements in the ICC’s procedures, it seems likely that in the future the ICC process will in effect replace a separate APF assessment (even if the APF Council still retains a formal role in accrediting new members).

Conclusion

This article has considered the extent to which the admission and membership review procedures of the APF have had an impact in encouraging aspirants to APF membership to make changes in existing or proposed legislative provisions, organisational structures and operational areas to bring themselves into a higher level of compliance with the Paris Principles. The following conclusions can be offered.

First, in most cases the prospect of membership of the APF has acted as an incentive for aspirants to respond to shortcomings identified in the application process or pre-application informal discussions. While applicants are a self-selecting group, only one applicant which was found to be non-compliant on first application (the National Society for Human Rights of Saudi Arabia) has failed to pursue an application for membership, though it is not clear whether the Iranian Islamic Human Rights Commission maintains its interest in joining the APF.

Second, the graduated membership scale (candidate to full member, and also associate to full member) has provided a useful structure for identifying the extent to which institutions fall short of full compliance and the steps they need to take in order to remedy those deficiencies, as well as providing an incentive for those institutions to take the steps necessary to bring themselves into full compliance. A number of associate or candidate members have been keen to move up the scale of membership, and have achieved this following amendments to their legal basis or other administrative or operational changes to bring about compliance with the Paris Principles law — Timor Leste, Afghanistan and Jordan are examples of this progression. Conversely, other applicants or members have been denied such admission or progression due to shortfalls in compliance — the Qatar and the Maldives institutions are two examples of this outcome.

Third, the criteria have been applied transparently and rigorously, resulting in credible decisions on membership status. This suggests that the existing members see themselves as custodians and enforcers of the network norms. At the same time, the original members of the network (with the exception of the New Zealand Commission) have not subjected themselves to the APF process, although they have been subjected to review by the ICC since they joined APF.

Fourth, there have been few inconsistencies between the ICC and APF outcomes, despite the slightly different categories and approaches. However, the increasing sophistication of the ICC procedures may place in doubt the need for a separate APF procedure — although the sense of ownership of the membership procedures and the reinforcement of network norms among APF members might not be as intense as it is now, if such decisions were made at the global level by representative of the various regional groups of NHRIs. It is also not clear whether greater legitimacy — or at least a necessary legitimacy — flows from a judgment by a group of regional peers as opposed to a global grouping of similar organisations.

Fifth, the experience with review of membership has been relatively limited. It is not clear whether a formal review of an existing member will produce a greater level of compliance in the short term, or is more likely to take place in circumstances where a member has already diverged significantly from the network norms and may therefore more likely lead to the expulsion or downgrading of a member from the network (or a pre-emptive resignation). In such cases, this may be a necessary measure if the network is to maintain its credibility — in the hope that in the longer term the institution may return to compliance with the Paris Principles.

In sum, the membership application and review procedures have been reasonably effective in moving NHRIs towards greater compliance with the Paris Principles — at least as a formal matter — and in reinforcing the role of existing members in implementing those shared standards.

The experiences described above provide some support for the argument that the APF operates as a transnational public regional network whose members enjoy shared norms in relationship to membership. The practice of the APF in assessing applications for membership and upgrade membership in the last few years shows a fair and objective application of the Paris Principles. The fact that applications for membership or upgrade have not been approved where the applicant falls short of important Paris Principles criteria suggest that the existing members of the network see themselves as custodians of the network’s norms in relation to those procedures.

The case of Fiji is a clear case of the APF membership enforcing its own norms against an errant member (in parallel with the ICC). The other cases in which the situation of an APF member has given rise to concern about continued compliance with the Paris Principles — Sri Lanka, Nepal and Malaysia-- are perhaps not as clear. In such cases the ICC had taken the first step: downgrading Sri Lanka to ‘B’ Status and placing Nepal and Malaysia on notice that their ‘A’ status was at risk. In none of these cases has the APF adopted the approach it did in the case of Fiji and instituted a review of its member’s status. Rather, it has taken a different approach, that of providing advice and supporter, rather than acting as formal adjudicator of status at this stage.

The APF operates as a network at many different levels — not just in relation to membership and upholding the Paris Principles-compliance of its members, but in other ways as well, including the sharing of expertise and the provision of training. However, the discussion above shows that the APF, as a network of entities committed to the same broad goals, reinforces those shared network goals and values through its practice relating to membership, upgraded membership and review of membership.

Results of applications for membership of APF and reviews of membership status
(as at October 2008)

Country	Date commission established	Application submitted	Initial admission	Subsequent change in status	Comments	ICC status
Australia	1986	Founding member (1996)	Full			A
New Zealand	1993	Founding member (1996)	Full		Review of application status on own initiative 2004; full membership reaffirmed	A
India	1993	Founding member (1996)	Full			A
Indonesia	1993	Founding member (1996)	Full			A
Philippines	1987	Founding member (1996/97)	Full			A
Sri Lanka	1997	1997	Full			B
Fiji	1997	1999	Full	2007 Membership review commenced; resigned 2007		Suspended March 2007; resigned April 2007
Nepal	2000	2000	Full			A (under review 2008)
Mongolia	2000	2001	Full (2002)			A
Korea	2001	2002	Full			A
Thailand	2001	2002	Full			A
Malaysia	2000	2002	Full			A (under review 2008)
Palestine	1993	2003	Associate			A (R) (2005)
Jordan	2002 (operational in 2003)	2004	Associate	2007 application for full membership	Admitted as full member 2007	B (2006) B (March 2007) A (Oct 2007)
Afghanistan	2002	2004	Associate	2005 application for full membership	2005 Admitted as full member	A
Saudi Arabia	2006	2006	Not admitted
Timor-Leste	2004	2005	Associate	2007 application for full membership	Full member 2007
Maldives	2003 (by decree) 2006 (legislatively)	2007	Associate
Qatar	2002	2005	Associate			B (Oct 2006)
Iran		2008	Offered associate membership (2008), but declined offer			C (2000)
Others
Commissioner for Children, Tasmania	2000	2002	Not within criteria for associate membership
Commissioner for Children, New Zealand	1989	2002	Not within criteria for associate membership

References

Anderson K (2005) ‘Squaring the circle? Reconciling sovereignty and global governance through global government networks’ 118 Harvard Law Review pp 1255–1313

APF (1998) Closed Preparatory Meeting — Business Issues, Third Annual Meeting, Jakarta, 1998 pp 3–4

APF (1999) Application for Membership: Fiji Human Rights Commission, Fourth Annual Meeting, Manila, Philippines, 6–8 September

APF (2000) Application for Membership: Nepal Human Rights Commission, Fifth Annual Meeting, 7–9 August, Rotorua, New Zealand

APF (2001a) Application for Full Membership — National Human Rights Commission of Thailand, Sixth Annual Meeting, 24–27 September, Colombo, Sri Lanka

APF (2001b) Application for Membership: National Human Rights Commission of Mongolia, Sixth Annual Meeting, 24–27 September, Colombo, Sri Lanka

APF (2001c) Concluding Statement, Sixth Annual Meeting, 24–27 September, Colombo, Sri Lanka

APF (2002a) Application for Full Membership — National Human Rights Commission of Malaysia, in Applications for Full Membership, Seventh Annual Meeting, 11–13 November, New Delhi, India, pp 30–35

APF (2002b) Associate Membership — Discussion Paper & Applications, Seventh Annual Meeting, 11–13 November, New Delhi, India

APF (2002c) Concluding Statement, Seventh Annual Meeting, 11–13 November, New Delhi, India

APF (2003) Application for Membership — Palestinian Independent Commission for Citizens’ Rights, June

APF (2004a) Application for Membership — Afghanistan Independent National Human Rights Commission, in Eighth Annual Meeting, 16–18 February, Kathmandu, Nepal

APF (2004b) Concluding Statement, Eighth Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions, 16–18 February, Kathmandu

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[*] Australian Human Rights Centre, Faculty of Law, University of New South Wales. Email: <[e-mail]>

This article is a revised version of a paper presented at the 5th Asian Law Institute Conference, Singapore, 22–23 May 2008. It forms part of research carried out under a Linkage project funded by the Australian Research Council and the APF (LP0776639). We are grateful for the support of the APF, in particular its Director, Kieren Fitzpatrick, in assisting us with the research for this paper, and we thank Katrina Taylor, student intern in the AHRC, for her assistance.

[1] The three categories are:

A Compliant with the Paris Principles.

B Observer status — not fully compliant with the Paris Principles, or insufficient information provided to make a determination.

C Non-compliant with the Paris Principles.

Prior to 2008, the ICC also used a fourth category: A(R) (‘Accreditation with reserve — granted where insufficient documentation is submitted to confer A status’). In 2008 the ICC discontinued use of the A(R) category for new accreditations (APF 2008a; APF 2008c, Decision 8.1).

[2] A consideration of the relationship between the ICC process and the APF process appears later in the article.

[3] See the comments of the Indonesian National Human Rights Commission (Komnas HAM) during the universal periodic review of Indonesia: United Nations 2008d, para 1.

[4] Australia, India, Indonesia and New Zealand, the Philippines being unable to attend.

[5] The members of the Forum Council are also the Board of Directors of the company, together with a second non-voting director nominated by HREOC.

[6] In relation to applications for membership lodged in 2002 by the Office for the Commissioner for Children, New Zealand and the Office of the Commissioner for Children, Tasmania (when both the New Zealand Human Rights Commission and the Australian HREOC were already members), the Council adopted guidelines in relation to associate membership (APF 2002c, 2, para 6):

The Forum agreed on two guiding criteria in considering applications for associate membership: namely the requirement to possess a broad mandate; and the desirability of admitting only one institution per member state of the United Nations.

[7] Single asterisks indicate applications for associate membership; double asterisks indicate applications for candidate membership.

[8] Information provided by APF Secretariat, March 2008.

[9] The following is based closely on APF 2007d, at 165–67.

[10] Information provided by the APF Secretariat, June 2008.