An interesting debate has been occurring in the virtual pages of the Chilean broadsheet El Mercurio in recent days. As I’ve discussed in this blog, the Chilean NHRI or Institute for Human Rights (INDH) since it was created in 2009 has quickly positioned itself as a vocal human rights advocate in the face of social protest and alleged police brutality. It is also worth recalling how politicised the issue of human rights remains in Chile 25 years after the fall of the Pinochet dictatorship (currently the subject of the feature film ‘No’ starring Gael García Bernal).
The INDH has been assisted in this task by the appointment of a highly credible Director, Lorena Fries, who has advocated a strategic plan around three challenges to an integrated vision of human rights in Chile:
- The difficulty faced by Chile to incorporate international human rights law in the context of globalization
- The existing tension between the historical experience of human rights lived by Chileans during the dictatorship and the need to widen the field of the promotion and protection of human rights under democracy
- The absence of a broad understanding of human rights that takes into account their indivisibility and interdependence within a discursive framework that denies the validity of economic and social rights and fails to significantly take into account principles of equality and non-discrimination
High profile interventions in the media and comprehensive reports have won the INDH allies in civil society but also made enemies of powerful actors within and outside state structures. The creation of the INDH was met with fierce resistance by conservative legislators within the Chilean Senate in 2009 and its robust actions since establishment have likely confirmed their worst fears.
Official backlash may have begun. Two common methods by which partisan officials in Latin America have attempted to influence National Human Rights Institutions is via appointment of dubious individuals to leadership positions and budgetary allocation. Either mechanism can be highly effective in curtailing the independence and performance of an outspoken office, without having to resort to high visibility and potentially costly actions such as institutional dissolution.
Initially assigned $2.3 million in 2010, the INDH reported in its 2011 Annual Report that demand on its services far outstripped available resources. However, Congress allocated 34 percent less than the sum requested by the Institution in 2011. There is now growing fear that the INDH will be subject to serious budget cuts in 2013.
The recent decision by the Office of the Comptroller General to affirm the powers of the INDH to access police vehicles and facilities has been met by fierce criticism. However, strident criticism of the Institute has also taken on more insidious forms. The INDH Director has warned of an operation against Chile’s human rights infrastructure, with both the Museum of Memory and the INDH in the crosshairs. In particular, a stream of criticism has begun to flow out of two higher education institutions: Liberty and Development (L&D) and the University of Development (UDD), both with links to the right-wing Independent Democratic Union party.
The opening salvo was a report issued by two academics affiliated with these institutions entitled ‘Radiography of the National Institute for Human Rights’. The report is highly critical of the INDH on a number of fronts asserting that the Institute has become excessively politicised, displaying left-wing tendencies. The report further criticises the INDH for not including the right to private property and the right to life of the unborn in its annual report. It further disputes the INDH’s inclusion of social rights within the scope of fundamental rights. The report concludes by calling for a radical restructuring of the organisation. A comprehensive rebuttal of the report can be found here. Nevertheless, vociferous criticism of the INDH has continued.
On 25 January 2012, the authors of the Radiography paper, Professors Jose Francisco García (L&D) and Sergio Verdugo (UDD), in a letter to El Mercurio criticised the recent appointment of two new members to the INDH board (consisting of 11 appointments) with ties to the NGO community. They suggest that the inclusion of four individuals with NGO backgrounds on the board of an NHRI is both acknowledged as bad practice in design terms and constitutes a rarity in global perspective. They raise the spectre of ‘capture’ and the prospect of the INDH becoming ‘just one more NGO’.
In a response by Professors Alberto Coddou and Domingo Lovera, of the University of Diego Portales, the claims put forward in the 25 January letter are interrogated. Firstly, they contend that the critique fails to acknowledge the presence of (a majority of) representatives nominated by the President, the Senate, the House of Deputies and the Council of University Rectors on the board of the INDH. Secondly, the claim of capture (by a minority group) is accompanied by no concrete examples of illegal or unethical practices or undue private influence. Finally, they invoke the Chilean Institute’s compliance with the internationally endorsed Paris Principles guidelines which lay down a best practice template for NHRI design.
Francisco and Verdugo provided further insight into their objection in a follow-up letter of 30 January, firstly charging that reference to the Paris Principles, which constitute only minimal guidelines, obfuscates the real issue: ‘Is it a good idea that NGOs be allowed to designate members of the INDH?’ They assert that the specialist literature on NHRI independence opposes such an arrangement (without providing citation) on the grounds that ‘the INDH must maintain equidistance from both the state and NGOs’. The objection, again, is stated as a principled one: a concern for the autonomy of the INDH.
In a final intervention, Coddou and Lovera welcome the withdrawal of the charge of institutional capture. They also engage with the issue of consensus on best design practice regarding NGO participation in NHRI appointment procedures. They rightly assert that there is actually considerable consensus within the specialist literature on the importance of ensuring plurality in the composition of NHRIs and civil society representation. How plurality is to be guaranteed, however, remains a matter for national authorities. In the case of the Chilean INDH, Coddou and Lovera detail a number of innovations and countermeasures which serve to balance the twin requirements of independence and plurality. Indeed, the Chilean NHRI, while deficient on other design criteria – especially regarding robust powers of investigation and complaint-handling – may offer insight into best practice in terms of civil society representation.
In sum, the Chilean INDH in its three years of activity has rapidly asserted a presence in human rights debate at the national level. However, it appears that its robust actions in defence of individual rights against state officials and agencies, is neither well-understood nor deemed legitimate practice by powerful actors within and outside state structures. The current outlook for the office is extremely uncertain in the context of imminent budget negotiations and, in the longer-term, direct appointments to the body by government and state authorities. Domestic and international human rights advocates will be watching closely.
A few additional observations:
- It is debateable whether the Paris Principles can be regarded as only minimum standards. In recent years, they have been refined in terms of both obligation and precision. Their formal inclusion into binding international standards (Article 33 of the CRPD and Article 18 of the OPCAT) has elevated their status in terms of legal obligations – and has also enhanced the precision of certain clauses (in particular unrestricted access to all places of deprivation of liberty).
- Equally significant, the ICC Sub-Committee on Accreditation has developed a series of detailed General Observations (GOs) since 2006 that clarify and refine the obligations arising from the PPs. These GOs are regularly referred to during the NHRI accreditation process.
- The PPs are explicit that the composition of the NHRI must ‘ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights’. SCA General Observation 2.1 enhances the precision of this clause:
GO 2.1: The Sub-Committee notes that there are diverse models of ensuring the requirement of pluralism set out in the Paris Principles. However, the Sub-Committee emphasises the importance of National Institutions to maintain consistent relationships with civil society and notes that this will be taken into consideration in the assessment of accreditation applications. The Sub-Committee observes the composition of the National Institution, for example:
2.1(a): Members of the governing body represent different segments of society as referred to in the Paris Principles
2.1(b): Pluralism through the appointment procedures of the governing body of the National Institution, for example, where diverse societal groups suggest or recommend candidates;
2.1(d): Pluralism through diverse staff representing the different societal groups within the society. The Sub-Committee further emphasises that the principle of pluralism includes ensuring the meaningful participation of women in the National Institution.