Principle 1: A Broad Mandate

The second article of the Paris Principles provides that "a national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence." The NHRI mandate must include the dual responsibility to both promote and protect human rights. Promotion includes measures such as public education, publishing reports, or taking other measures to ensure that individuals understand human rights standards and know that they must respect the rights of others. Protecting human rights means ensuring that there are effective mechanisms in place, such as investigating and monitoring human rights situations.

The Paris Principles describe the range of responsibilities that should be within the operational mandate of an institution as:

• Providing opinions, recommendations, proposals and reports to government, parliament or other responsible organs on:
• legislative or administrative provisions, as well as provisions relating to judicial organisations;
• the general situation of human rights or more specific human rights issues; and
• situations of violations in any part of the country.
• Encouraging the harmonisation of national legislation and practices with international human rights instruments, as well as their effective implementation;
• Encouraging the ratification and implementation of international human rights instruments;
• Contributing to country human rights reports, including, where necessary, by expressing an independent opinion on matters discussed in them;
• Cooperating with international and regional human rights organs, and other national institutions;
• Assisting and taking part in the development of education and research programmes in human rights; and
• Sensitising people on human rights and efforts to combat discrimination, especially racial discrimination, through publicity, information, education and the use of press organs.

With regard to the responsibility to provide "opinions, recommendations, proposals and reports", the Paris Principles make clear that an institution must, first, have the power to provide advice on its own initiative, and not merely on the request of the authorities. Second, an institution must be free to publicise its advice without restraint and without requiring prior approval. It should also be understood that the first responsibility listed (to provide advice on legislation and human rights violations and situation) generally includes the responsibility to:

• Receive, investigate and issue opinions and recommendations regarding alleged human rights violations (although it may not include the specific power to receive individual human rights complaints); and
• Monitor and report on human rights issues generally and on the situation of detained individuals in particular.

The Paris Principles do not say that the above-listed requirements are a definitive list of a NHRI's responsibilities; rather they constitute the minimum or basic level of responsibilities. That said, the Principles have not been interpreted as requiring that an institution actually carry out all of the listed responsibilities, but rather as requiring that there be no statutory or constitutional limitations that would prevent an institution from engaging in them if it chose to do so. An institution may, for strategic or resource-related reasons, determine to emphasise some responsibilities over others.

Similarly, the implications of a broad mandate are that, subject to their statutes (as discussed in greater detail below), NHRIs should be directly engaged in work related to civil and political rights as well as economic, social and cultural rights. They may, within this broad mandate, however, choose to focus attention on one area, such as women's rights,4 protecting the rights of persons with disabilities5 and/or combating racial discrimination, depending on circumstances and priorities.

Despite the principle in favour of a broad mandate, some restrictions are common and not problematic. For example, most NHRIs are prohibited from dealing with matters that are before the courts, or that have already been decided by the courts. Such limitations avoid duplication and the appearance of usurping the judiciary's role. They do not, moreover, contradict the Paris Principles.

Many enabling laws specifically restrict subject-matter jurisdiction: for example, the NHRI may be authorised to receive complaints dealing with civil and political rights, but not economic, social and cultural rights. Similarly, some institutions have mandates that relate to one type of human rights violation – usually discrimination – but not others. Such limitations do not, in themselves, mean that the NHRI is not in conformity with the Paris Principles, but they should be read narrowly. In the examples cited here, a narrow reading would mean that restrictions that prevent the receipt of complaints in ESC rights should be read to be limited to complaints investigations, and should not diminish the institution's ability to comment more generally on human rights matters of all types, including ESC rights.

In other words, the NHRI should not be prevented from undertaking monitoring, public education or advice-giving in relation to rights for which it has no power to receive complaints.

There are other types of restrictions: many institutions, for example, do not have jurisdiction to deal with human rights matters involving the private sector (companies and corporations).

It is true that some NHRIs cannot enquire into matters concerning the armed forces, the security services and/or government decisions regarding international relations. These restrictions do not contradict the letter of the Paris Principles, but they do contradict its spirit. Item 5.2 of the General Observations of the ICC Subcommittee provide that "the scope of the mandate of many National Institutions is restricted for national security reasons. While this tendency is not inherently contrary to the Paris Principles, it is noted that consideration must be given to ensuring that such restriction is not unreasonably or arbitrarily applied and is exercised under due process". It may be reasonable to place restrictions on who may access certain sensitive documents in cases where national security issues are demonstrably at stake, and where a judicial authority has proclaimed such to be the case, but wholesale exclusion of jurisdiction should be avoided.

Checklist: Broad Mandate and Responsibilities7

Principle	Requirements	Y	N
BROAD MANDATE (subject-matter jurisdiction)	Competence is as broad as possible (from most to least broad)
	Includes both CP and ESC Rights
	Includes most CP and ESC Rights
	Includes only CP Rights
	Includes a subset of CP Rights
	Is limited to single rights issue (e.g., Race or Discrimination)
BROAD MANDATE (object matter jurisdiction)	Competence is as broad as possible (from most to least broad)
	Over State and Private Sector (with public function), without restriction8
	Over State, without restriction
	Partial 9 restriction with regard to sensitive State Organs10
	Total restrictions with regard to sensitive State Organs
BROAD MANDATE (time jurisdiction)	Competence is as broad as possible (from most to least broad)
	Can examine matter even if it predates institution
	No limits providing matter occurred since set up of institution
	Discretionary power to limit examination of 'old' cases
	Limits on capacity to examine matters that are 'old' set in law
RESPONSIBILITY (TO PROVIDE ADVICE)	Can provide advice on own initiative
	On legislative or administrative provisions
	On any violation the institution takes up
	On the national situation generally or in specific
	On situations of violations and government reactions to it
	Can provide advice directly without referral
	Can publicise the advice without referral or prior approval
RESPONSIBILITIES (OTHER)	To encourage the harmonisation of national legislation and practices with international human rights instruments, as well as their effective implementation, including by
	Participating in reviews of legislation and policy at time of ratification
	Regularly reviewing and providing formal comments on draft legislation and policy
	Regularly reviewing and formally commenting on the human rights situation generally or with respect to key issues
	To encourage the ratification of international human rights instruments
	To contribute to country human rights reports (from most to least broad)
	Directly participates in drafting of complete report
	Drafts section(s) on work of institution and reviews report
	Drafts section(s) on work of institution
	Reviews report in whole or in part
	To cooperate with international and regional human rights organs and other national institutions
	To elaborate and take part in education and research programs in human rights, including by:
	Assisting in developing/reviewing curricula for schools
	Assisting in training of Prison Guards, Police, Army and Security Forces
	To sensitise people on human rights through publicity, education, information and the use of press organs, including by
	Publishing an Annual Report
	Regularly reporting on important cases through the media
	Developing basic brochures on the institution

 

 

 

 

 

4 CEDAW. See General Recommendation No. 6 (seventh session, 1988).

5 Convention on the Rights of Persons with Disabilities. For a discussion of the role played by NHRIs in this convention, see Stein and Lord, "The United Nations Convention on The Rights Of Persons With Disabilities as a Vehicle for Social Transformation".

6 OHCHR (2008). "Business and Human Rights: A Survey of NHRI Practices. Results from a survey distributed by the Office of the United Nations High Commissioner for Human Rights."

7 Note that text in italics are derived from, but not given in, the Paris Principles.

8 "Without restriction" in this context means no restriction except as regards the courts and Parliament.

9 "Partial" in this context means either that the restriction does not apply to all sensitive State organs, or that the restriction is not absolute.

10 'Sensitive State organ" in this context means, the Army, the Police, Security Forces and the equivalent.