Talk given at Leuven University (29 June 2017):
By way of preface, I’d like to echo Philip Alston in his LSE Human Rights Day lecture last year, that the human rights community is entering a watershed moment. We have a President of the US and the Philippines who openly support torture and killing with impunity. Civil society faces a major global crackdown. Unfettered capitalism is multiplying human rights and environmental crises. But to sound a slightly less gloomy note, this does not amount to the end times or the twilight of human rights.We should not despair, human rights remain a potent rallying cry for those who seek progressive political change, the protection of life, and an end to abuses of power. Human rights has never been a consensus project, it has always been a struggle. However, as human rights scholars, practitioners and activists, we do need to rethink assumptions, re-evaluate strategies, without giving up on principle.
If politics is the art of the possible, then we need to take seriously the tradecraft of human rights politics. In particular, while it’s right to stress the rule of law, we should resist the retreat into legal form and process in the face of disagreement. And it is here that I locate the value of national human rights institutions or NHRIs as a subject of inquiry: what happens when international human rights norms inevitably come into contact with configurations of power within local settings? Drawing up international agreements in New York or Geneva is relatively simple compared to delivery of compliance. NHRIs and HRDs are on the sharp end of this daunting challenge. Drawing upon their experience, how can political strategy and principled action best be combined to achieve results? How can support coalitions – whether domestic or international – most effectively enable these local actors to fulfil their mandate?
But to backtrack a second, first a quick introduction and a qualification. NHRIs can be broadly defined as formally independent, but state-funded, regulators, mandated to promote and protect human rights, commonly taking the form of human rights commissions or ombudsmen. They number approximately 121 worldwide. Many of them are accredited at the United Nations, are granted participation rights at the Human Rights Council and even formalized within hard treaty law (OPCAT and CRPD). My work has involved extensive fieldwork in Latin America. My current research proposes to explain NHRI success and failure across political regimes, with particular emphasis on the idiosyncratic but critical factor: principled leadership borne of professional duty and public service motivation.
Now for the qualification, which can be summed up by the question: how independent are NHRIs really? It is not difficult to be cynical. Creating effective NHRIs is challenging, especially when they are supposed to hold accountable the very governments that put them in place. And indeed, it is not hard to find NHRIs which are basically window-dressing or worse, actively undermining human rights protections. However, capture or obsolescence is not a foregone conclusion. NHRIs, from Afghanistan, to Australia, Northern Ireland to the Philippines, to name just a few, have all – at one time or another – engaged in principled action, what may even be deemed ‘heroic action’, placing mandate above personal interest, suffering political backlash, death threats and worse. So the qualification is two-fold, first: NHRI independence and performance is ultimately an empirical question, and second, it may not always be better to have an NHRI than not. But we do observe positive NHRI impact, even in unlikely settings. In my remaining time, I’ll just briefly sketch out three key issues: 1) the importance of statutory authority, 2) NHRIs as strategic actors, and 3) some implications for the future of global HR protection.
If NHRI independence and impact is an empirical question, part of the answer does lie with formal design safeguards. In a recent project, we’ve found that independence safeguards, such as constitutional entrenchment, do matter. We also find strong evidence that certain powers, particularly complaint-handling and public inquiry authority, have allowed robustly-designed NHRIs to respond to state abuses effectively and, crucially, build lasting public and media support. In other words, the importance of statutory authority should not be underestimated:
- Unlike NGOs, NHRI officials are independent statutory officers, enjoying similar immunity protections as high court judges
- They can require disclosure of information and access to detention facilities through subpoena powers. This is exemplified by the recent actions of the Australian NHRI which used its formal powers of access and disclosure to counter government secrecy and expose grave violations in refugee detention facilities, provoking an ongoing and extraordinary official backlash
- The Australian NHRI, as with offices in Ireland, Malaysia and elsewhere, chose to make use of its far-reaching public inquiry powers for maximum impact.
This leads me onto my second point: NHRIs are strategic political actors who make choices. It is not possible to separate them from their political environment, they are inevitably responsive to diverse constituencies, and sensitive to local power dynamics. Coming back to my earlier point, demonstrably independent and effective NHRIs will be well-versed in the tradecraft of human rights politics. As regulatory stewards, they understand local context, they can leverage information effectively to provoke an official response, they are acknowledged by local NGOs and HRDs as valued partners, and they get things done: they are able to identify veto players versus reformers within state structures and to make use of the full repertoire of cooperative and compliance instruments at their disposal.
An important corollary to this is that NHRIs, as statutory bodies often appointed by the legislature, also possess a formal authority not afforded to international agencies or NGOs. And this formal status has the potential to be converted into a formidable source of public legitimacy, even political power. Although much liberal HR scholarship tends to focus upon bypassing through networks or managing state authority directly to deliver compliance, there is another option which powerful NHRIs have pursued: having the courage of their convictions to directly challenge state and market power through principled action. This speaks to a bigger challenge as we enter a neo-populist or nationalist era, we see social conventions being destroyed very quickly, contrary to human rights. We cannot assume legal conventions will protect us. So we need to think hard about how to ground human rights in the bedrock of social convention, one tied to a vision of social justice, reflective of deeply-held shared pragmatic concerns – and NHRIs can offer some lessons in this regard.
Finally, NHRIs have been seized upon as a missing link between international human rights standards and their effective implementation. In the academy, we like to talk about ‘mapping the middle’, and – in this sense – NHRIs as conduits offer a sightline onto the future of global HR protection. In one sense, the focus on the role of NHRIs and other national actors in the delivery of compliance is a natural response to increased awareness and alarm at the ‘compliance gap’ between international HR obligations and implementation. To bridge this gap, we need to focus less on legal process and more on bridging multi-level systems of HR compliance delivery, operating across national, regional and international divides, experimenting with the full diversity of actors and repertoire of available compliance instruments. This is where the future of HR protection lies. In the end, NHRIs exemplify efforts to connect global protection arrangements to the realities of the violation. As practitioners never fail to tell me: “no violation is ever addressed in Geneva. It always depends upon what happens when you go back home.”