Guidance Notes to UNCT

Guidance Notes to UNCT:

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 the ICC 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.