I was recently invited by the Berkeley Comparative Equality & Anti-Discrimination Law Study Group to give a keynote on the Paris Principles. I appreciated the opportunity to reflect on a set of norms which have inspired a lot of my academic research! Instead of offering a summary of recent work on national human rights institutions (NHRIs) effectiveness, I thought instead that I’d offer a more personal account of the individuals that have been instrumental to the remarkable diffusion of these standards and their often faithful instantiation in structures around the world. Although the story of NHRI diffusion has been well-documented elsewhere, the role of individual norm entrepreneurs in this story is not well-understood.
Of course, given time constraints, I was only able to offer a potted history, which I hope to be able to expand in a book project at some point. I should also say that undoubtedly this story is incomplete. It will be up to others to let me know where the gaps lie. It was nevertheless a pleasure to have this opportunity to perhaps remedy this deficit in the historical record. I have more work to do, trawling through my archive, but consider this a preliminary effort to acknowledge the architects instrumental to launching an obscure norm into the international limelight.
In my experience, most audiences have not heard of the Paris Principles. So just in case, the Paris Principles are a non-binding, soft law standard, endorsed by a UNGA resolution in 1993. They lay down a series of design standards for NHRI independence and powers. NHRIs most commonly come in the form of Human Rights Commissions and Ombudsmen, with many of them also possessing an equality and anti-discrimination mandate.
Now in the short time I have this morning, I want to offer – from a non-lawyer’s perspective – some reasons why these obscure standards might deserve top billing. My point of departure is the question: how do we explain the life cycle of a norm? Why do some international norms tip and cascade, while others sputter out? There is a strong push in the scholarship for big structural arguments. World polity theory and a host of others explain liberal norm diffusion as resulting from globalising interdependence, socialization effects, and the like. Domestic factors have also played their part, especially the (now receding) third wave of democracy.
The diffusion of the Paris Principles is testament to these powerful drivers. Indeed, they may be one of the most successful and intrusive liberal norm cascades of the modern era. From a standing start of roughly 15 NHRIs in 1990, following their endorsement by the UNGA in 1993, my research with Katerina Linos at Berkeley Law School demonstrates that the Paris Principles have triggered a global cascade to close to 120 existing NHRIs today. What’s more, NHRIs have diffused to every sub-continent in the world, as likely to be found in stable dictatorships as advanced democracies.
Fast forward to today, it is perhaps not surprising that NHRIs have not always met the high expectations placed on them. It is not hard to find NHRIs existing largely in name only, or worse: undermining human rights frameworks. However, failure is not a foregone conclusion. There are also many NHRIs that have undertaken their mandate robustly, with integrity. NHRIs as diverse as the Kenyan, Afghan, Australian, and Peruvian offices have all – at one time or another – exceeded or defied expectations. John Elster’s marvellous phrase – the civilizing force of hypocrisy – comes to mind.
As such, NHRIs offer important sightlines onto questions of norm diffusion, as well as domestic processes of state transformation. And much of my recent research has focused on impact, specifically how design safeguards enable or disable NHRI effectiveness. However, today I’d like to use this opportunity to return to the question of diffusion and reflect on an often-overlooked side of that story. The role of individual norm entrepreneurs.
Why is this important? Well, it’s simply not possible to answer some of the most intriguing questions without accounting for the human factor:
- Why did the Paris Principles emerge from a fringe non-governmental workshop organised by the UN Centre for Human Rights in 1991?
- How did they find their way – without any modification – into the Vienna Declaration on Human Rights in 1993 and then a UN General Assembly Resolution later that year: the first time that the GA had ever adopted a set of standards on human rights that governments did not negotiate themselves.
- What explains the extraordinary proliferation of NHRIs over the following decade, many established in conformity with the Paris Principles?
- How did the Principles achieve formal inclusion within the Universal Periodic Review protocols?
- How did the Paris Principles end up in the OPCAT and CRPD, effectively hardening their status under IHRL?
First, any history of the birth of the Paris Principles which does not include the role of Brian Burdekin, former Federal Human Rights Commissioner of Australia, would be incomplete. As one observer recalls, “arriving at a set of international standards was not on the agenda for the UN [at the Paris workshop in 1991] and it was not on the agenda for anybody else, but it was on the agenda for Brian.” Faxing back and forth with his RA in Sydney, David Mason, they produced a detailed preparatory text. It is a fascinating document, indicating why the PPs more closely align with an HRC model as opposed to HRO model, predominant in Latin American since the mid-1980s. As David Mason told me: “it was a different time…we didn’t have Google, we literally did not know that the Spanish Defensor del Pueblo existed.” The Paris Principles which emerged were thrashed out on the last night of the workshop among a small group of four NHRI practitioners from the French, Mexican, Filipino, and the Australian office.
But even then, few thought that the PPs would amount to much. What explains their inclusion in the Vienna World Conference Declaration two years later and a UNGA by the end of 1993? Much of the answer lies with astute diplomacy by a handful of NHRI practitioners who met for the first time on the fringes of the Vienna Conference. Burdekin continued to play a key role in the run up to Vienna, alongside Max Yalden of the Canadian NHRI, and Margaret Beddgood of the New Zealand office, lobbying friendly government delegations to include the PPs in the Declaration, making the case that NHRIs, in Yalden’s words, “were a separate and different type of org within the UN family.” It was also in Vienna that a nascent network of NHRIs was established, now the Global Alliance of NHRIs, comprising 10 members at that time
Building on this momentum, nevertheless securing a UNGA resolution was a challenge of a different order. Indeed, a Commission on Human Rights resolution endorsing the PPs in 1992 was shot down by the Indian delegation. Crucial to their passage through the UNGA a year later was the fancy political footwork of a coalition of NHRI practitioners, Australian diplomats and local actors which led to NHRIs being quickly established in Indonesia and India. With the support of these big hitters in the non-aligned movement, the UNGA resolution was assured, precipitating a massive norm diffusion.
Of course, the PPs also include the qualifying phrase: “it is the right of each State to choose the framework that is best suited to its particular needs at the national level.” A necessary compromise, but this did constitute a threat to the integrity of the Paris Principles. However, diligent work by successive NHRI practitioners within the GANHRI, notably Chris Sidoti, Morten Kjaerum, David Langtry, Jennifer Lynch and Rosslyn Noonan, has led to the extraordinary situation of NHRIs becoming the gatekeepers of the Paris Principles within the UN, overseeing their own peer review accreditation process, not subject to government oversight. The Office of the High Commissioner for Human Rights serves as secretariat to the GANHRI Sub-Committee on Accreditation.
While not perfect, the independence of this accreditation mechanism is unique in the UN system and compares favourably to the ECOSOC gauntlet which NGOs seeking accreditation have to endure. Importantly, “A status” NHRIs now have speaking rights within the HRC and offers some “quality control” for external stakeholders. As Burdekin recalls, “there was nothing built into the 93 resolution about an accreditation process and frankly had there been it would not have had a snowballs chance in hell of getting through.”
Such strategic thinking by key individuals is a recurring feature of PPs consolidation, to offer a few closing snapshots:
- Burdekin was subsequently appointed as Special Advisor on NHRIs to the High Commissioner on Human Rights, Mary Robinsons, who was herself a strong supporter of NHRIs and instrumental to their inclusion in the Good Friday Agreement
- Between 1995 to 2003, Burdekin undertook over 100 country missions, often successfully cajoling government officials to establish NHRIs in conformity with the Paris Principles
- UN officials, such as Gianni Magazenni in the 2000s, played key roles in giving the accreditation system “teeth”, supporting a process of periodic review, clarification of the PPs, and sometimes even downgrades, such as Sri Lanka in 2007
- Astute interventions by the Asia Pacific Forum of NHRIs, in particular Kieren Fitzpatrick and Ben Lee, was pivotal to getting the Paris Principles inserted into Resolution 5/1 of the Commission on Human Rights reform package, giving NHRIs speaking rights at the UPR
- Leadership in the 1990s by the first chair of the Indian Commission, Justice Shri Mishra, as well as in later years, the Philippine chair, Chito Gascon, and Beate Rudolf, the current chair of GANHRI, have helped shore up the integrity of GANHRI internal processes.
- We might also point to the role of NHRI Commissioners in uploading the Paris Principles into treaty law, including Gerard Quinn, two term member of the Irish Human Rights Commission who was instrumental to their inclusion in Article 33 the Committee on the Rights of Persons with Disabilities. Similarly, Article 18 of OPCAT includes the Paris Principles thanks to the timely intervention of Burdekin and the receptiveness of the Costa Rican chair who oversaw the finalisation of the draft Optional Protocol text.
To close then, the status of the Paris Principles in UN procedures and law is a remarkable achievement. They are not perfect. But they do provide an important baseline. Some have called for a Paris Principles 2.0, but I think caution is warranted in opening them up for renegotiation given their historical contingencies. The challenge of course remains the same; how to ensure that they are actually enabled to improve human rights on the ground.