2.6 Factors to Consider in Choosing a Model

A variety of factors will influence the country’s choice of model in establishing an NHRI. First and foremost, the decision rests with the country. However, UN staff can play a useful role in sharing information about the social, political and legal trends in a particular regional or legal tradition.

Social, Legal and Regional Factors:

It is important to understand that legal, historical and regional traditions and trends tend to be the most important factor that governments consider in selecting a model. There is some data from the evaluation field to the effect that people tend to give more credibility to information, experience and knowledge that comes from similar countries.8 For example, institutions tend to reflect legal traditions commonly seen in Scandinavian, Hispanic, Commonwealth or other traditions, although there are exceptions to this. Latin American countries in general tend towards human rights ombudsman offices, sometimes as hybrid institutions, with multiple mandates.

Francophone countries sometimes favour advisory or consultative bodies although recent organizations such as HALDE in France are challenging that tradition. Commonwealth and common law countries tend to favour human rights commissions with the authority to provide remedies and enforce decisions.

In developing countries, the experience and legal legacy of former colonial powers can have an impact on the choice of model.

Cost and economic circumstances might also influence the decision:

• Ombuds-style institutions, with one and possibility two members, tend to be less expensive than full commission-style membership.
• Institutions with investigation and complaint receiving functions tend to have the bulk (at least 50%) of their funding dedicated to these activities and related support: this is in part because of the costs of litigation, of legal staff and the protracted and more adversarial nature of dispute resolution.
• Latin American and some Lusophone countries not only choose the ombudsperson model, but also are most likely to combine the human rights and “classic” ombudsperson authorities in one body to avoid what may be seen as unnecessary cost and duplication.
• Other countries might create separate bodies, including separate, specialised human rights bodies, each dealing with a defined group of issues, in the belief that the extra cost and duplication is warranted by the increased focus that results.

Policy style differences as to the best approach may also determine the model selected:

• Some countries may feel that change will be achieved by ensuring that social forces come to a united and well-documented opinion on larger human rights issues.
• Other countries believe that NHRIs must focus on, or at least include, redress for the violation of individual rights, and that this requires a specific mandate to investigate individual complaints.

Practical considerations may also play a part:

• A country with an under-developed and/or overburdened judiciary may, at least at the outset, believe that giving NHRIs the authority to go to court to enforce decisions would strain already-thin resources.
• “Experts”, including international experts and members of existing institutions, bring certain attitudes and perspectives with them. They will tend to see the advantages in models that they have had the most experience with.

While it is risky to generalise about NHRI classifications or “models” of institutions, listing the attributes and pros and cons may encourage better understanding and may assist those who support establishing or strengthening an institution.

A detailed discussion of elements to consider in establishing a NHRI, from the perspective of the UNCT planning cycle and from the standpoint of the “pre-establishment” phase, are set out in Chapters 6 and 7, respectively.

8 Nedergaard, P. (2006), Which Countries Learn from Which? A Comparative Analysis of the Direction of Mutual Learning Processes within the Open Method of Coordination Committees of the European Union and among the Nordic Countries, in: Cooperation and Conflict, Vol. 41, No. 4, pp. 422-442.