This article examines the dynamics of engagement between national human rights institutions (NHRIs) and civil society organizations (CSOs) in the Asia Pacific region. It explores the role of CSOs in the establishment of NHRIs and argues that this history is essential to understanding the experience of NHRIs within different states. Second, it explores the evolution and impact of networks of NHRIs and CSOs in a region that currently lacks a supranational mechanism for promoting and protecting human rights. Finally, it considers the potential for CSOs to utilize the evolving processes of the International Coordinating Committee of Institutions for the Promotion and Protection of Human Rights (ICC) to strengthen the independence and effectiveness of NHRIs. KEYWORDS: NHRIs, CSOs, ICC, Asia Pacific region.
IN 2003, SONIA CARDENAS DESCRIBED "A NEW AND SIGNIFICANT DEVELOPMENT in the field of human rights: the UN-led proliferation of national human rights institutions (NHRIs)." (1) Since then, increasing attention has been paid to the role of these state-based, but nominally independent, institutions in promoting and protecting human rights. The potential importance of NHRIs stems from their location within the state. NHRIs are (ideally) vectors for the norms of international human rights law, transmitting them from the global sphere of UN treaties and treaty bodies to the domestic arena where they can be promoted through education, protected in legislation, and enforced by the executive. Because of their accessibility, independent and well-resourced institutions, which possess a broad mandate and wide-ranging powers, have the potential to significantly increase the level of human rights protection afforded to citizens. In the wake of Cardenas's article, scholars have studied the establishment of NHRIs in diverse political systems; (2) the work of NHRIs in transposing international human rights from the international to the national levels; (3) the issue of how NHRIs, created and funded by the state, can maintain legitimacy and effectiveness; (4) and whether or not, and how, the impact of NHRIs can be measured. (5)
As more states have established NHRIs and more scholars have examined their work, the contested nature of NHRIs has become more visible. While some NHRIs have been successful in effecting positive change and have assumed a central role in the political life of the state, shaping the discourse on human rights and inspiring new understandings of the responsibilities of the state toward its citizens, others have been paralyzed in Situations of conflict and still others have succumbed to politicization. (6) Many NHRIs seek a path between building relationships with governments so that they can collaborate on human rights policy and being independent enough to criticize governments when their human rights programs fall short. This is a difficult line to walk and, at different periods in relation to some human rights issues, some commissions become--or are perceived to be--sidelined. John von Doussa, former president of the Australian Human Rights Commission, reminds us "how fragile these types of organisations are, and when they start to challenge the authority of the ruling power, then they are terribly fragile." (7)
In this article, I aim to shed new light on the nature and potential of NHRIs by examining an area that has previously received little attention--the relationship between civil society organizations (CSOs) and NHRIs. (8) This is an area of practical significance for human rights policymakers and practitioners, as the CSO/NHRI relationship is a central dynamic in the creation and maintenance of effective NHRIs. Positive CSO/NHRI engagement is a feature of all NIIRIs, which are perceived as legitimate, credible institutions--by government, by regional peers, and by the international community. Concomitantly, in cases where CSO/NHRI relations are strained or nonexistent, NHRIs inevitably suffer a crisis of legitimacy.
Because the Asia Pacific region currently lacks an overarching regional mechanism for the promotion and protection of human rights, (9) NHRIs have assumed significant social, legal, and political roles within many states. In the Asia Pacific region, therefore, the role of CSOs in advocating for strong and effective institutions has been all the more important. As the NHRIs of Europe, Africa, and the Americas begin to strengthen links between CSOs and NHRIs, it is instructive to consider the chemistry of NHRI/CSO interaction in the Asia Pacific region. (10)
In the first part of this article, I consider the role of CSOs in the establishment phase of a NHRI. Most explanations of why states create NHRIs have tended to overlook the part played by domestic forces, and I argue that unless we understand the endogenous impetus to create NHRIs we cannot understand the experience of these institutions within the state. Next, I examine two important networks in the Asia Pacific region that have fostered and shaped CSO/NHRI engagement: the Asia Pacific Forum of National Human Rights Institutions (APF) and the Asian NGO Network on National Human Rights Institutions (ANNI). Finally, I survey new strategies that CSOs are developing in international forums, such as the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), to challenge the legitimacy of NFIRIs and move them toward meeting international standards of independence and effectiveness.
CSOs and the Establishment of NHRIs
The idea of establishing a human rights body within each nation--an "agent" of international law within the state--first appeared in a United Nations forum in 1946. (11) By 1990, eight NHRIs had been established: in Australia, Canada, Denmark, France, Guatemala, Mexico, New Zealand, and the Philippines. In 1991, representatives of some of these institutions met in Paris for the First International Workshop on National Institutions for the Promotion and Protection of Human Rights. From this workshop emanated the "Principles Relating to the Status of National Human Rights Institutions" (the Paris Principles), which set out the functions and responsibilities of NHRIs and established guarantees of independence and pluralism. The Paris Principles were adopted by the UN General Assembly in 1993. (12) In 1993, the ICC was established to accredit NHRIs according to their compliance with the Paris Principles. Conforming institutions are accorded "A" status by the ICC; those that do not conform are accorded "B" or "C" status. "A" status NHRIs have speaking rights in the Human Rights Council and other international human rights fora, and are entitled to request that they be recognized as the official national monitoring mechanism under the Optional Protocol to the Convention Against Torture (13) and the Convention on the Rights of Persons with Disabilities. (14)
The Vienna World Conference on Human Rights also convened in 1993. The conference adopted the Vienna Declaration, which recognized "the important and constructive role played by national institutions for the promotion and protection of human rights, in particular in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights." (15) That same year, the Office of the High Commissioner for Human Rights created the position of coordinator for national institutions, and encouraging the creation of NHRIs in all states became a central concern of UN human rights bodies. Now in 2012, 125 of the 152 member states of the United Nations have established NHRIs. (16)
The worldwide proliferation of NHRIs in a relatively short span of time has puzzled students of international relations. Why would states create and support an institution that is a source of criticism of the state and a potential brake on state power? Cardenas, who attributes to the UN a "critical role in the proliferation of NHRIs," (17) argues that for some states NHRIs have presented a way of deflecting international scrutiny and avoiding greater international institutionalization. (18) Highlighting the role of three significant actors--the UN, the international community, and the state--Cardenas depicts NHRI promotion as "a strategy that achieved consensus precisely because it promised to shield state sovereignty while satisfying rising demands for human rights reform." (19)
From within states themselves, a fourth actor--CSOs--have also played a significant role in driving the establishment of NHRIs. The Vienna World Conference, which was attended by approximately 800 civil society representatives from across the globe, informed domestic and regional CSOs of the existence of an institutional model for the national monitoring of human rights. CSOs were quick to recognize the potential of a state-based human rights body, established by constitutional or legislative provisions and thus (unlike CSOs) not subject to deregistering by government or the vagaries of donor funding. Such a body was seen as a powerful potential ally for CSOs in the promotion and protection of human rights. In many cases. CSOs seized the opportunities presented by a change in domestic political circumstances (usually the imminent election of a liberal government after a long period of monarchical, single-party, or authoritarian rule) to convince new leaders that the establishment of a NHRI was in line with a progressive political agenda. The Paris Principles provided a set of internationally endorsed benchmarks that nongovernmental organizations (NGOs) could use in lobbying governments to create bodies with significant powers, independence, and a broad mandate. The Paris Principles also helped to allay civil society tears that the new human rights body could be used by future recalcitrant governments to cloak human rights abuses.
CSOs from South Korea...