Parliaments as Human Rights Actors – Proposed Standards from the UN

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On 13 June 2018, the UN Office of the High Commissioner for Human Rights (OHCHR) released its report on the Contribution of parliaments to the work of the Human Rights Council and its universal periodic review, which will be discussed at the Human Rights Council session starting 18 June. The report includes a welcome proposal for a set of standards – the draft Principles on Parliaments and Human Rights – that cover the (i) mandate; (ii) responsibilities and functions (both domestically and vis-à-vis the international human rights system); and (iii) composition and working methods of a parliamentary human rights committee.

We have been advocating for the adoption of standards for four years, and in 2017 we published suggestions for the content of such standards in a chapter in Saul, Follesdal & Ulfstein (eds.) The International Human Rights Judiciary and National Parliaments (CUP) based on our work on this topic since 2013, and on outline standards presented at a Human Rights Council side event in 2014. This post discusses the importance of the proposed UN standards, and what needs to happen next.

Why should parliaments engage with the UN human rights mechanisms?

When we consider human rights actors on the domestic level, we typically think of the executive, the judiciary, the national human rights institution (NHRI), and civil society. But parliaments can also play a vital role. They can oversee the actions of the executive by ensuring that laws, policy and practice are in compliance with international human rights commitments. Yet, many parliaments do not fulfil this role. The OHCHR report and draft Principles could be crucial in encouraging greater parliamentary engagement on human rights.

The OHCHR report emphatically states “[p]arliaments are cornerstones of national human rights protection systems”. This national protection system includes “as a minimum” an independent judiciary, human rights-respecting law enforcement and corrections officers, an independent national human rights institution, “systems for the protection of minorities and the most vulnerable groups” and “freedom for human rights defenders and media professionals to undertake investigative work.” This system also requires “a parliament that contributes to the application of international human rights obligations and that has an oversight function with respect to human rights.”

In the current climate such a system may reflect more hope than reality, with parliaments around the world incorporating extremist elements, forming delicate coalitions or being locked in partisan squabbles. But the potential for a parliamentary contribution to human rights protection is great – through oversight of government activity, the development of human rights-compliant legislation, carrying out inquiries, awareness raising, promoting ratification of international human rights treaties and ensuring that other national mechanisms, such as the NHRI, are able to function effectively.

How should parliaments engage with the UN human rights mechanisms?

The OHCHR report is the culmination of a series of Human Rights Council resolutions (resolutions 22/15, 26/29, 30/14 and 35/29), General Assembly resolutions (resolutions 65/123, 66/261, 68/272 and 70/298) as well as initiatives at the UN to enhance the role of parliaments in engaging with international human rights mechanisms. The OHCHR has also been working particularly closely with the Inter-Parliamentary Union on this topic. Previous UN recommendations emphasised the need for parliaments to mainstream international norms in national legislation, to “become involved in the international human rights arena” through national participation in implementation mechanisms, and to engage proactively and systematically in the work of human rights mechanisms. One of the aims of the new draft Principles is to improve implementation through national mechanisms for reporting and follow-up.

The OHCHR report notes the “growing international focus on the role of parliaments” in the promotion and protection of human rights. We think the European human rights system has considerable guidance to offer because of the attention given to the role of parliaments in the execution of ECtHR judgments (for example, Parliamentary Assembly of the Council of Europe Resolutions 1516(2006) and 1823(2011)).

What type of mechanism should parliaments have?

It is critical for parliaments to establish or enhance a parliamentary human rights body. An OHCHR survey found that 35 of 56 responding countries had a parliamentary human rights committee founded through parliamentary rules and regulations and/or in the constitution or legislation. It also found a ‘common core’ of responsibilities including legislative initiative, review and amendment of legislation for human rights compliance, oversight of the executive on human rights matters, holding debates and hearings on human rights issues, engaging with NHRIs and making recommendations to the plenary of the parliament.

In our view, the model chosen is less important than its mandate, powers and functions. The committee model is the most common, with the UK’s Joint Committee on Human Rights one option for form and structure, but a variety of models exist for human rights oversight committees in parliaments (IPU 2007). In our proposals, we focussed on a set of principles that mirrored the 1993 UN Paris Principles which regulate the mandate and functions of NHRIs. This approach, which arose out of Kirsten’s work with and research on NHRIs, utilises the Paris Principles because they provide a widely accepted format for the mandate and functioning of NHRIs, with 120 countries having some form of NHRI (GANHRI 2018).

Effective oversight

The human rights body should not simply be a ‘rubber stamp’ for the human rights actions of the government. We proposed a two-step approach to effectiveness in our outline standards. First, the goal of the mechanism should be publicly and clearly set out in order to provide a baseline for expectations and motivation for those working in the mechanism. The draft Principles propose “[t]he mandate of the parliamentary human rights committee shall also provide clear terms of reference setting out its purpose and goals.”

The second step is effectiveness through its operating principles, specifically, ensuring a legitimate process in its procedure, that is, the inputs, outputs, and ‘throughputs’ (Schmidt 2013), as well as ensuring engagement with stakeholders, including national human rights bodies, NGOs, the public and international organisations. In this regard, the draft Principles include a welcome section on composition and working methods including pluralistic representation, transparent operations, public processes, access to independent external human rights advice, the need for consultations with stakeholders and ensuring ‘meaningful’ civil society participation.

The draft Principles and the OHCHR report are positive initiatives, but we cannot lose sight of the risks. As we found through engaging with experts and parliamentarians from different jurisdictions, there is the possibility of a human rights body being co-opted by partisan politics. Backsliding on human rights is happening around the world – one just has to look at the situation in Hungary, Poland, The Philippines and Turkey. A significant amount of this backsliding has been through legislative measures (for example, the repressive anti-NGO legislation currently being implemented in Hungary). Parliaments can play a positive role in human rights protections, but can also be at the heart of legislative undermining of human rights standards.

This leads us to an idea that is not reflected in the draft Principles – the need for oversight of the overseers. The Paris Principles have functioned as an effective basis for NHRIs because of a peer-review process set up to assess the compliance of NHRIs with the Principles (Roberts Lyer 2018). This peer-review ‘grades’ the institution on its level of compliance with the Principles, and is internationally recognised, giving those with the top ‘grade’ (“A-Status”) greater access to the UN human rights mechanisms for example, having the first section of the Universal Periodic Review stakeholder report dedicated to their input, and speaking first after the State Under Review at the UPR report adoption. Should the draft Principles be adopted, such a system should be considered by the OHCHR, perhaps in conjunction with the IPU, to help ensure that parliamentary human rights bodies are living up to their potential and mitigate some of the risks noted above.

The new UN standards, should they be accepted and implemented, form a basis for recognising and improving the role of parliaments as national human rights actors.

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