7.5.1 Scope of Mandate:
Effective NHRIs generally have a broad and non-restrictive mandate, which includes civil, cultural, economic, political and social rights. Programmes should focus on issues that are country-relevant and that are seen as important to the public, and to civil society, the government and to public bodies.4
General: At a minimum, NHRI’s should be vested with competence to both protect and promote human rights (Paris Principles Section A1). A simple statement to this effect is appropriate in the early sections of enabling legislation. A broad statement to the effect that the NHRI is entitled to look into, investigate or comment on any human rights situation, without any form or prior approval or impediment, is also desirable, to ensure independence and autonomy.
Reference to applicable international instruments is also desirable.
Article 2: In his activities, the Public Defender shall follow the Constitution of Georgia and the present Law, as well as the universally recognized principles and rules of international law, international treaties and agreements concluded by Georgia.
The mandate will depend on political circumstances and political will. Sometimes the internal situation of a country means that a NHRI with a broad mandate is not possible, either because it is not acceptable to key forces or for other reasons. In such circumstances, strategic choices may be inevitable. Settling for less than perfection is an option: an institution can grow organically as it builds experience and credibility, and with general advancements in the human rights situation of the country in which it operates.
Applying only to the public sector or more broadly? Human rights laws typically apply to the government at a minimum, which includes all departments and administrative branches of the State, law enforcement bodies, the Army, correctional and detention facilities, local government administration; government committees and agencies. It usually extends to state-owned companies and companies where the Government exercises control, for example, where it owns over 50% of the capital; or other bodies as prescribed by law.
Questions can still arise: does the NHRI have power over state-owned corporations? State-controlled bodes? To avoid arguments in future, some statutes will solve this problem by defining terms such as “government”, “public service”, “public authority” or other entities whose actions are subject to the NHRI’s reach.
Application to both public and private sectors: As noted in the previous section, it is important to establish whether the law will be restricted to the state or whether it will also apply to non-state sectors. Although human rights commissions in developing and post-conflict countries tend to focus on State action, human rights violations can also be caused by the actions of other entities in other sectors, for example, corporations, partnerships or persons in employment, housing and other sectors.
Non-state actors also have human rights responsibilities, and the obligations put on the State by international obligations extend to ensuring human rights are respected by non-state actors. The Paris Principles are consistent with a broader application of the NHRI mandate to cover both the private sector and the public sector. This is especially important as regards equality rights in the areas of discrimination in employment, housing, goods and services because these are typically offered by the private and non-profit sectors.
More information on the role of NHRIs in respect of private sector business is found in Chapter 3.
There should be no unnecessary duplication. For example, if there is an independent Electoral Commission with the authority to receive and deal with complaints relating to the right to participate in elections or the conduct of elections, there is no need to give the NHRI the same authority, although nothing should preclude independent decisions to review human rights abuses by any other institution. That said, NHRIs should cooperate with and support the functions of other institutions that are also concerned with human rights issues, directly or indirectly.
A broad mandate should be planned to correspond with financial capacity and human resources. Even if the NHRI is to be mainly or entirely funded through donor assistance at the outset, at some point in time the UN will require an exit strategy and the NHRI will have to be funded through the State budget. If a small budget is planned with only a few people and no authority to investigate complaints (an activity that generally requires several staff), then a full mandate is not likely to be properly carried out.