INTRODUCTION

On 10 December 2009, Law Nr. 20,405 created the Instituto Nacional de Derechos Humanos (INDH or the Institute) in Chile: this followed four years of discussion and negotiation in the country's National Congress. President Ricardo Lagos had introduced the original Bill concerning the National Human Rights Institute back in 2005. It was based on the recommendations of several national and international organisations. Initially, the process included general comments and observations received since the 1990s from distinct treaty bodies, which acknowledged the important role that NHRIs can play in monitoring specific human rights instruments. At the regional level, the Organization of American States (OAS) had been promoting the strengthening of these institutions since 2005. Domestically, following an initial announcement by President Lagos in his annual address to the nation, the National Commission on Political Imprisonment and Torture recommended the creation of an NHRI in 2005.

Consequently, Law Nr. 20,405 reflected the broader institutional fabric that had begun to be woven throughout the Chilean state following the return of democracy, which, in terms of distinct Transitional Justice measures or decrees, had led to the creation of the National Commission for Truth and Reconciliation as well as the aforementioned National Commission on Political Imprisonment and Torture. The 2005 Law abandoned the paradigm of temporary institutions, replacing it with a permanent NHRI. In this context, the establishment of the INDH was an important step:6 18 years had passed since President Patricio Aylwin (1918–2016) had introduced an, ultimately unsuccessful, Bill in the National Congress calling for an ombuds office

INTRODUCTION

Three bodies compose the Inter-American Human Rights System, as established by the American Convention on Human Rights (ACHR): the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (IACtHR), and the General Assembly of the Organization of American States (OAS). While the IACHR is mandated to promote the observance and defence of human rights, the IACtHR is granted both contentious and advisory, or non-contentious, jurisdiction, and the General Assembly is tasked with considering the annual report submitted to it by the IACtHR. For the exercise of these powers, the ACHR views the aforementioned bodies in a context in which, due to the period when this treaty was concluded, international society was essentially made up of sovereign states that were and are obliged to respect and ensure respect for the human rights enshrined therein. This is particularly the case concerning Articles 1.1, 2, and 35 of the ACHR, among other articles, and, in more specific relation to the IACtHR, Articles 61.1, 65, and 68. Given this context, the treaty provides that only states and the IACHR may be parties to cases in which the IACtHR exercises its contentious jurisdiction.

The Rules of Procedure of the IACtHR (Rules of the Court), however, introduced the possibility for alleged victims of human rights violations to appear before the Court, giving them the opportunity to assert their rights and opinions, and present petitions in an autonomous manner. Subsequently, NGOs began providing support to complainants, or their families, regarding their pleadings, arguments, and evidence.

INTRODUCTION

In line with the UN Paris Principles, NHRIs are established by constitution or law as permanent, accessible, and specialist human rights access points, for both rights-holders and duty-bearers at national level. They provide information to citizens, cooperate with civil society, deliver advice to government, hold state authorities to account for human rights violations, and inform the international community of the national human rights situation on the ground. Emerging in the 1990s, NHRIs remain a rather novel phenomenon in the human rights landscape, in Europe and beyond. The increasing establishment and role of European NHRIs remains understudied, and, until recently, the unique features of NHRIs were not very familiar to human rights practitioners in the region.

While a number of chapters in this book include case studies addressing the functioning of particular NHRIs, the present chapter provides a bird's eye perspective on the European NHRI landscape. It will describe typical characteristics of NHRIs in the European region, highlighting some important challenges and opportunities for NHRIs across the continent. Following the approach of this edited volume, the chapter will distinctly address characteristics of European NHRIs, across the multiple layers of the human rights system. In the first section, the focus is placed on the characteristics, opportunities, and challenges that are typical for European NHRIs at the national level.

The Paris Principles are the benchmark against which all NHRIs are generally measured in the important accreditation process managed by the international network that groups them today. These principles, as construed and applied by GANHRI's SCA, are a good example of how international law can bring the rule of law into municipal law. Because of their origin, the Paris Principles favour the human rights commission as an institutional model over the ombuds-institute and the human rights institute, and focus on the creation of NHRIs, rather than in their subsequent operation. These two aspects constitute a limitation of these principles. Even though the first of these problems has been solved in practice, the second one remains a reality that requires identifying efficiency criteria going beyond institutional design and guiding NHRIs in the effective fulfilment of their functions.

From a comparative perspective, NHRIs are a common tool of constitutional law for the promotion and protection of human rights. As this book has shown, this is particularly true for Latin American NHRIs, where the figure of the ombuds tends to take precedence over commissions or institutes. With few exceptions, the vast majority of these NHRIs enjoy a legal status that allows us to describe them as constitutional institutions, aimed at fulfilling that critical role. NHRIs’ relevance has been recently highlighted by the UN, the Council of Europe and the OAS. In 2017, the UNGA promoted the existence of independent NHRIs as an indicator for Sustainable Development Goal 16 of Agenda 2030 – that of promoting just, peaceful and inclusive societies; it reiterated the significance of NHRIs during the COVID-19 pandemic.

INTRODUCTION

Latin American constitutional systems underwent a strong metamorphosis during the final decades of the twentieth century and have continued to do so during the first part of the twenty-first. One of the main objectives driving this constitutional change has been the desire to overcome the legacies of various conservative political regimes which formerly held power across the region. These regimes fuelled social exclusion and, simultaneously, allowed normative and institutional weaknesses to give rise to a general neglect in the protection of fundamental rights.

The wave of constitutional reforms, termed ‘new Latin American constitutionalism’ by some and ‘neo-constitutionalism’ by others, has helped to bring about significant changes, including: a considerable expansion of the catalogue of legally recognised fundamental rights; the strengthening of institutions responsible for the protection of these rights; the creation of new protection mechanisms; an increased recognition of subjects of special protection (women, children, indigenous peoples, among others); the empowerment of constitutional jurisdiction; and the articulation of constitutional law in keeping with international human rights law, among other significant developments.

In this context, the so-called defensorías del pueblo have come to the fore as new institutional figures, which, imported from Europe and adjusted to meet Latin American realities, act as critical tools for the promotion and protection of fundamental rights in the region. The defensorías del pueblo were conceived as institutions with an express mandate to work closely with the general public. In performing this role, they constitute a crucial part of multilevel protection systems in which states’ national mechanisms for the protection of individuals are closely linked to international mechanisms.

National Human Rights Institutions (NHRIs) currently operate across all five continents, striving to comply with the so-called ‘Paris Principles’. As a term of art, NHRI is a widely accepted one. Under its aegis, numerous institutions promote and protect human rights following two basic models: commissions and ombudsman offices, and sometimes hybrid and specialised institutions. NHRIs have been integrated into a network of administrative agencies and judicial courts that deal with human rights at the national and international levels. They provide a valuable example of institutional dialogue and cross-fertilisation between municipal and international law. At least in Europe and Latin America, their presence is so extensive that it could be argued that NHRIs are now part of a common legal tradition, which allows for certain distinctive features in each region.

WHY THIS BOOK?

At present, there are quite a few informative monographs and edited books on NHRIs, written from a general or a specific perspective. No publication, however, has yet contextualised and analysed the similarities and differences between European and Latin American NHRIs, providing case studies on concrete commissions, ombuds offices and institutes from across these two regions. By drawing on the existing literature, this book aims to bridge the European and Latin American experiences on NHRIs, while emphasising the essential international aspect that these institutions have. Filling a gap in the legal literature, this work is aimed at studying NHRIs from an international and comparative standpoint.

INTRODUCTION

The Principles relating to the Status of National Institutions were first defined at a workshop, held in Paris in 1991, and were formally adopted by the UN General Assembly (UNGA) two years later. Their relevance cannot be overstated, for they put forward the main criteria that NHRIs have to fulfil, including principles as to their role, establishment, composition, and operation. Loosely conceptualised in doctrine, NHRIs embody state self-regulation and accountability in the area of human rights. Following the Paris Principles, the UN has defined them as ‘a body which is established by a Government under the constitution, or by law or decree, the functions of which are specifically designed in terms of the promotion and protection of human rights’. NHRIs typically adopt the form of a either a commission or ombudsman, the shape and size of which differs from state to state. Beyond such classic models, hybrid and specialised institutions have also been recognised as NHRIs. Since the 1990s, these permanent and independent agencies have multiplied extensively throughout the world. At present, more than 100 states have one of these administrative bodies active in their territory.

The Paris Principles have not only allowed the UN to delineate NHRIs, but have also become the benchmark used for measuring their structural design. For years, these non-binding principles have been applied as legal rules in the now all-important accreditation processes which govern these institutions. However, two questions remain: what exactly is the nature of an NHRI? And what is its main objective?

INTRODUCTION

Since the adoption of the Charter of Fundamental Rights of the European Union (the Charter) in 2000 – and even more so since the Treaty of Lisbon in 2009 elevated the Charter's legal status to a position of parity vis-à-vis the European Union's (EU or Union) founding Treaties – the EU's commitment to the promotion and protection of and respect for fundamental rights in its internal policies and action has grown exponentially. In its internal law, policy, and action the Union seeks to ensure that its institutions and Member States acting within the scope of EU law proceed in compliance with citizens’ fundamental rights, as enshrined in the Charter. EU external action tells a similar story of exponential growth in human rights activity, with the Treaty of Lisbon at the apex of strong exhortations requiring the Union to advance ‘the universality and indivisibility of human rights and fundamental freedoms’ in the wider world.1 The Union has shown itself to be a staunch defender of human rights worldwide, not least through its dealings with third countries and engagement with human rights protection mechanisms at the UN and beyond.

Given this context, it is hardly surprising that the EU has become increasingly interested in and supportive of the work of National Human Rights Institutions (NHRIs).