10.3.2 Support Strategies to Improve/ Upgrade Status

The gaps and areas for improvement that are identified through the above processes may be used by UN staff, whether at the OHCHR National Institutions Unit, in the field, or in cooperation, as benchmarks for improvement. It is important to note that when the ICC Sub-Committee on Accreditation has assessed the NHRI for its compliance with the Paris Principles, the current practice is to ensure that specific recommendations for compliance with the Paris Principles are made to each institution. These recommendations should be a point of departure for follow-up work to strengthen the NHRI.

The following summary points might be useful for those who are providing recommendations to senior officials in the UN system on this question.

Underlying considerations

• UN Country Teams should recognise that they are needed to support, establish and/or strengthen governance systems, including national institutions and this, of course, includes not only the countries as a whole, but also the institutions in them.
• The political and social context may be difficult: a distinction needs be made between the country's governance problems and the NHRI itself. Usually, it is both.
• Managing expectations: Although NHRIs are supposed to be independent of Government and capable of criticising it, NHRIs are rarely much stronger than the human rights culture in which they operate.
• It is not reasonable to expect a NHRI – especially a new one – to emerge fully formed with the capacity to combat long-standing cultures of impunity, corruption and human rights violations.
• NHRI officials will typically engage in areas where there is a chance of success, usually where the NHRI feels its can make the most difference. The issues chosen may not always be the issues that the UN wants to see addressed, but the choices may nonetheless be defensible;
• Severe pressure on NHRI officials and staff: As noted earlier in the section on Early Warnings, political instability and weak law enforcement cultures mean that personal threats against NHRI workers and officials are prevalent in certain countries. According to the OHCHR Guidance Note: National Human Rights Institutions and the Work of OHCHR at Headquarters and Field Level, "whenever threats are issued against an NHRI or its members, OHCHR staff or the field presence are encouraged to:
• Report these threats to OHCHR HQ and discuss appropriate follow-up action, including public expressions of support which would raise the visibility of the NHRI at the national level and offer some protection;
• Seek assistance from the ICC for NHRIs in terms of early warning or preventive action;
• Inform, and possibly involve relevant special procedure mandate holders;
• Inform and possibly involve relevant treaty bodies when discussing the State party report;
• Make sure the High Commissioner uses every opportunity to address these threats through public or discreet communications with the national Authorities; and
• The Resident Representative or Head of the Human Rights Section at least should also be made aware of the threats.
• UN Country Teams need to be sensitive to the daily realities and pressures under which NHRIs operate. This is especially true in post-conflict contexts.
• Acknowledge a dynamic and progressive approach: Where a country assistance framework includes a NHRI, then a progressive approach will work towards compliance with the Paris Principles: the only way to improve may be to engage.
• NHRIs whose status is downgraded. (e.g., from A to B) by the ICC may need more, not less help; bearing in mind however, the issues discussed in the section on risk.
• There may be situations where, as a last resort, the UN decides to withdraw support. This may occur where, for example, the NHRI has become politicised (e.g., where the NHRI has begun to speak "for" or act as an apologist for the government, or worse, covers up human rights abuses and acts as a shield for violations). Such decisions should be taken in consultation with the OHCHR and other UN agencies working with the NHRIs. Targets set by the ICC Sub-Committee on Accreditation, should be taken into consideration, where appropriate.

1. UNCT officials could inform States who are considering establishing NHRIs that the credibility of those institutions will be tested by the ICC Bureau at the time that the institution requests membership in the International Coordinating Committee of National Institutions. The importance of complying with the Paris Principles is not merely a 'good practice' or a symbolic measure; failure to comply has tangible consequences. Those that do not achieve A-Status accreditation will be recognised both internationally and nationally as being less than fully credible, no matter the protestations of the national government.

2. Since compliance with the Paris Principles is the key to accreditation, UNCT members must be able to provide advice on how the Principles are to be interpreted. This may pose certain challenges since the Principles are not always clear; nor is there a single manner in which to satisfy them. In fact, often reference must be made to 'best practice', or at least "good practice", when interpreting how, for example, the requirement to have 'as broad a mandate as possible' is to be applied. The section of this Chapter that deals with the Paris Principles provides guidance in this area, as will the General Comments of the Sub-Committee on Accreditation.

3. It would be prudent to request information directly from the NI Section of the OHCHR when issues are unclear.

4. The OHCHR NIRM Section uses its own information channels to look behind the formal documentation submitted by a national institution applying for initial accreditation status. Information that the UNCT has on the work of such institutions, their degree of independence, their pluralism, their interaction with NGOs, etc. will help the NI Unit develop its summary for the Sub-Committee on Accreditation.

5. A decision to continue supporting a national institution that has been given a less than full membership status by the ICC Bureau must be taken based on the facts at hand. The following considerations may be pertinent:

a. Has the institution been given a B-Status or a C-Status accreditation?

i. Generally, an institution that receives B-Status accreditation may be reasonably close to being fully accredited. Since the Sub-Committee on Accreditation will cite the specific deficiencies with regard to complying with the Paris Principles, those reasons form a template for further developmental assistance to the institution. The immediate goal would be to take the steps required to ensure that the institution responds to the failings that have been noted. When these require legislative reform, the UNCT could work with the NHRI, government and other stakeholders in seeking appropriate legislative amendments. It would be important to involve the NI Unit in this process to ensure that the amendments brought are sufficient to meet the problems noted and do not inadvertently create other problems.

ii. A C-Status accreditation suggests that some considerable distance must be travelled before the institution can be considered in compliance with the Paris Principles or that there is a fundamental deficiency. Reference to the written reasons for the Sub-Committee's recommendation may provide some indication as to both the needs of the institution and the likelihood that any success can be achieved.

b. Is the institution active and persistent in pursuing changes to achieve full compliance?

i. A national institution cannot enact its own legislation. It depends on the good will of the political authorities to ensure that its legislative mandate is appropriate. That being said, the institution need not remain complacent in the face of lack of political will. It can engage in a variety of activities to push for such changes, including in collaboration with NGOs and other key stakeholders. National institutions can also seek other ways to overcome legislative deficiencies. If an appointment process is not transparent or consultative, a national institution might consider undertaking its own consultative process in advance of scheduled re-appointment process and 'offer' suggestions to the government based on this process. National institutions that take action that demonstrate their own commitment for improvement may warrant continued support.

c. Is the political situation likely to remain adverse to the establishment or strengthening of a national institution that conforms fully to the Paris Principles?

i. Political situations change. Where there is support for national institution renewal within opposition party ranks, or even within the current regime, there may be a rationale for maintaining support for a deficient institution in the hopes that when political change does happen there is a human rights mechanism in place that can be strengthened. Even a deficient institution, especially if it demonstrates a commitment to work to the limits of the authorities it does have, will have accumulated experience and know-how that will be valuable to a new, strengthened version. It may be, as well, that the limits to which an administration will go are elastic and that incremental strengthening is possible even if getting to the final goal immediately is not.

d. Might the overall impact of the institution, despite its weaknesses, result in a net improvement to the human rights situation?

i. It is said that 'the best is the enemy of the good". There may be occasions when the impact of a deficient institution, even if limited, marks an improvement on a bad human rights situation. In such circumstances, a hard-headed calculation might be necessary to determine whether continued assistance is warranted because the prospects of having no institution are worse than having a deficient one.

e. Are there other human rights agencies that, if supported, might achieve greater short, medium or long-term impacts?

i. If there are there other players in the field that can achieve the same or better results than a deficient institution then it may be appropriate to support those agencies, barring any of the over-arching considerations described above.

Where a determination to continue to support a NHRI is made, the recommendations made by the ICC Sub-committee on Accreditation provide a comprehensive road map for assistance, as regards to bringing the NHRI into compliance with the Paris Principles.

6. The ICC Chairperson or any member of the Sub-Committee on Accreditation can cause a review of an institution's accreditation status in the event that there are "changed circumstances". While it is not possible to define all potential circumstances that might lead to a review, the Re-accreditation procedures adopted by the ICC Bureau at its 17th Session list the following:

a. Fundamental limitations to the working climate of the NHRI as reflected by a national repressive regime and/or state coups;

b. Adoption of new legal framework, amendment of existing framework of NHRI or legal challenges to elements thereof;

c. Discrepancies between the legal framework and the actual implementation, including in relation to appointment procedures of NHRI members; and

d. Repeated or gross biased statements by NHRIs in favour of particular interests or against specific groups which violate the values contained in the Paris Principles.

"Changed circumstances" need not, however, be quite so dramatic to warrant the attention, and concern, of UNCT members. Sudden and unexpected removal or resignation of members or senior staff might trigger concerns, as might failures of the institution, such as:

e. Decisions or policy positions advanced by the institution that seem contrary to human rights principle and might display a lack of independence on the part of the institution;

f. A failure on the part of the institution to comment or take a position on an important human rights issue;

g. A failure to engage sufficiently with other stakeholders, especially in the NGO sector; and

h. Irresponsible spending habits that suggests that Commissioners are more concerned with their own well-being than human rights.

While any one such action or failure may be insufficient to cause a review of accreditation, it may be indicative that there are greater problems within the organisation. These too might be communicated to the NIRM Section. Either the Section or an appropriate regional or international interlocutor may be able to influence improved performance or identify the need for other action, including a review of accreditation.

7. A decision following a NHRI review or re-accreditation resulting in down-grading of an institution's accreditation status leads to the question of whether such institutions should receive or continue to receive developmental support from UNCT. The factors that were listed above, regarding support for institutions denied voting status upon their initial application, apply here as well. In addition, there should be a consideration of the role the institution played in advance of the down-grading. By definition, a review results from 'changed circumstances'. An institution is obliged to inform the ICC Bureau of such circumstances. An institution that did not do so has failed in its responsibilities; it is also likely that it remained silent despite the looming problem, since changed circumstances rarely happen without warning. This would suggest that the institution is either insufficiently independent and/or insufficiently proactive to be effective.

8. Similarly, except when the re-accreditation adjusts an earlier faulty initial decision, down-grading after a re-accreditation process suggests that the institution failed to note that a change had occurred that might affect its status and/or failed to inform theICC Bureau of relevant changes that might influence its accreditation status. These lead to the same concerns as expressed above with regard to institutions that have undergone a review.