ANDREW WOLMAN

Introduction

The international human rights regime has long been loosely conceptualized as a three-level system, composed of global, regional, and national institutions and norms (Held, 1999; Ghai, 2001). Of course, this has never been an entirely accurate conception: local governments have long been at the heart of human rights implementation, and independent municipal commissions have been addressing human rights issues since the 1920s (Saunders & Bang, 2007). Today the role of sub-national entities is even more prominent.

All across the world, sub-national actors are becoming increasingly involved in human rights promotion and protection. In many parts of the world, Sub-National Human Rights Institutions (SNHRIs) – which I define as independent non-judicial governmental institutions that possess a sub-national mandate, and whose mission includes the implementation of human rights norms – have come to play important roles in human rights promotion and protection.

As defined above, SNHRIs can be considered as the sub-national equivalent of national human rights institutions (NHRIs), and the two institutional types share many of the same characteristics. As is the case with NHRIs, SNHRIs are distinguished by their independence: they are governmental bodies, but do not operate under the direction of the executive. NHRIs and SNHRIs each engage in similar promotional, protective, and advisory functions, including (often) receiving complaints from the public. Within the broad SNHRI category are included institutions such as human rights commissions, human rights ombudsmen, human rights boards, personeros, defensores del pueblo, difensores civicos, etc., as well as institutions that specialize in particular rights such as anti-discrimination, the rights of children, or the rights of the disabled. SNHRIs currently exist at virtually all administrative levels, from cities and counties to provinces and vast autonomous regions.

In this blog post, I will describe the proliferation of SNHRIs, followed by a brief discussion of my research into the relationships between SNHRIs and the existing norms and institutions of the international human rights regime.

SNHRI Proliferation

SNHRIs around the world have considerably different institutional histories. While the emergence of NHRIs around the world was largely a product of normative diffusion and international pressure during the twenty years following the 1993 elaboration of the Paris Principles, SNHRIs have been established as a result of widely varying impulses over the course of a longer time period. Many times the motives for SNHRI establishment have been more intertwined with local politics than global affairs. When looked at globally, however, at least four historical patterns are evident when looking at waves of SNHRI proliferation.

First, many jurisdictions in the common law world established commissions to address local discrimination and inter-group harmony issues. In the US, such commissions were often established by cities and states in the wake of race riots and protests in the 1940s and 1950s, eventually being promulgated more widely during the 1960s civil rights movement and as a result of later efforts to sustain social change (Saunders & Bang, 2007). Canadian provinces also developed anti-discrimination commissions during the 1960s and 1970s, prior to the establishment of any NHRI at the federal level, as did Australian states, starting in 1977 (Howe & Johnson, 2000). In addition to the civil rights concerns of the day, the early emphasis on equality rights may also reflect federal divisions of labour in these countries, with classic fundamental freedoms (free speech, religion, due process, etc.) and social needs thought to be more effectively addressed through national-level legislation and constitutional adjudication. Over time, however, some of these common law bodies have expanded their mandates to cover a broader range of human rights issues, while others continue to focus solely on non-discrimination and equality rights.

Second, over the course of the past several decades, the work of existing ombudsman and similar independent watchdog institutions have in many cases steadily shifted such that ombudsmen institutions now commonly and explicitly implement human rights norms in ways that would have been unusual prior to the 1990s. Thus, according to Carlens and Verbeeck (2010: 19), the role and missions of ombudsman institutions in Europe can vary widely, but there is a “noticeable shift in the position of the Ombudsman from a mere mediator towards a protector of fundamental rights”.

This shift in focus has not necessarily been accompanied by any change in formal mandate. Rather, it is now normal for ombudsman institutions to explicitly cite human rights norms and work towards rights protection even if their organic laws do not mention human rights (Stuhmcke, 2011). Today, at least in the European context, it is in fact possible to say that virtually all ombudsman institutions use, among other normative sources, human rights standards (Remac, 2013).

A third wave of SNHRIs has come as a result of the decentralization requirements or pressures of human rights implementation in federal states. In several countries, upon the establishment of an NHRI, it was clear that SNHRIs would need to be established as well, because federalism restrictions would not allow the NHRI to effectively watch over sub-national government entities. Thus, the laws establishing NHRIs in India and Russia authorize the establishment of SNHRIs by states, while the Austrian constitutional provision establishing its ombudsman office requires that provinces set up an analogous ombudsman institution if they do not want to make use of the federal one.

In a few other countries, such as the UK, a true NHRI never emerged, with SNHRIs separately being established in the various devolved and autonomous regions. In many other federal or decentralized states, an NHRI was initially established at the national level, but over time local pressures led to municipal or provincial governments following suit, either to fill a gap for NHRIs unable to effectively influence sub-national entities, or in some cases to supplement or replace those NHRIs at the sub-national level (Defensor del Pueblo de España, 2003).

Finally, and most recently, a number of SNHRIs have been established as part of the ‘human rights cities’ movement over the past twenty years. The first so-called ‘human rights cities’ emerged from the work of the People’s Movement for Human Rights Learning (PDHRE), an NGO engaged in trans-national grass-roots human rights activism that successfully led communities to work towards letting “a human rights framework guide the development of the life of the community” (PDHRE, 2007: 3).

Rosario, in Argentina, was the first human rights city established through PDHRE’s work, in 1997. Since then, dozens of other cities have followed suit, some using the PDHRE methodology and many other communities simply declaring themselves to be ‘human rights cities’ without PDHRE involvement. Many, but not all, human rights cities have established SNHRIs. Some examples include the Sakai Human Rights Committee (Japan), the Barcelona Human Rights Observatory (Spain), the Human Rights Commission of Kaohsiung City (Taiwan), the Graz Human Rights Council (Austria), and the Human Rights Commission of Seongbuk-Gu (Korea). The functions and make-up of these SNHRIs vary widely, but they tend to share a broad human rights focus rather than simply concentrating on discrimination, inspiration from international rather than national sources, and strong connections with civil society.

SNHRI Relationships with other Human Rights Institutions and Norms

My recently defended Ph.D. thesis investigates the ways in which these SNHRIs interact with other human rights institutions and human rights norms (Wolman, 2013; Wolman, 2014; Wolman, 2015a; Wolman, 2015b; Wolman, 2017). This exercise is responsive to a widely felt need for greater systemic coherence. As Hammarberg (2008) has argued, “[t]he main challenge is now to enhance the interaction between international, national and local authorities, to promote systematic human rights planning, where local and national needs are matched coherently with agreed international norms”.

My research shows that SNHRIs do not exist in isolation from the broader international human rights regime. Many of them engage with both international norms and international bodies in a variety of ways. Such engagement may include: filing reports to the UN Human Rights Council or treaty bodies; acting as independent mechanisms under the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention against Torture; and engaging with the special procedures of the UN Human Rights Council. They also interact in differing ways with NHRIs and other domestic bodies, although these interactions do not always go smoothly, as evident in the jurisdictional conflicts between the Catalan Sindic de Greuges and the Spanish Defensor del Pueblo or the tensions between the Indian National Human Rights Commission and State Human Rights Commissions in that country (Wolman, 2013).

I also find that SNHRIs commonly apply international norms in their work, including through their responses to individual complaints, provision of advice to government actors, public promotion of human rights norms, engagement with human rights litigation, and monitoring. The use of international norms is often explicitly mandated, but in some cases SNHRIs have decided for themselves to use international norms despite the lack of a clear mandate to do so in their organic legislation. This has been evident in the advice and interventions of the Ontario Human Rights Commission and the reports of the Los Angeles County Human Relations Commission (Wolman, 2015a). While SNHRIs also engage with their peer institutions, these relationships are less robust and provide fewer benefits than the analogous networks of NHRIs. These conclusions run contrary to the view of state and local human rights commissions and ombudsmen as purely local institutions, addressing local concerns, based on norms that may coincide with international human rights norms but are sourced from local or national texts. Overall, I find that integration into the international system presents significant benefits for SNHRIs, as well as for other existing actors. Greater interaction with their peers through SNHRI networks can lead to a convergence of international standards, greater information sharing, acculturation, and the prospect of legitimation through an accreditation process. The use of international norms by SNHRIs can lead to the localisation of international human rights norms and the increased visibility of international norms at the local level. In some cases international mechanisms can help SNHRIs to pressure their home governments to respect human rights, as was the case with the Navajo Nation Human Rights Commission’s use of the UN special procedures complaint process to allege that the US and state of Arizona violated the rights indigenous peoples to access a sacred site (Wolman, 2014).

SNHRI participation in UN mechanisms is also likely to improve SNHRI effectiveness by increasing SNHRI familiarity with global human rights norms and techniques. Conversely, international bodies also can benefit from SNHRI engagement, for example by gaining greater access to independent information on local human rights conditions. Participation of SNHRIs in international mechanisms is also likely to increase the amount of attention paid to particular human rights norms that may be systematically underemphasized by nation-state representatives, such as the right to self-determination.

I propose a number of specific measures that can help improve the quality of relationships between SNHRIs and other international human rights actors. I argue that the UN should work towards increasing SNHRI engagement by, for example, providing more explicit guidance to the various human rights bodies as to how SNHRIs can be included in various situations and providing capacity-building assistance to SNHRIs in developing countries. I also propose certain measures that NHRIs can take to promote better SNHRI integration into the international system. To this end, NHRIs should consult with SNHRIs where relevant prior to engaging with UN mechanisms, and NHRIs should play a more proactive role in training SNHRIs in their home country on how to best interact with international bodies.

Perhaps most controversially, I suggest that a new version of the Paris Principles be drafted that can apply specifically to SNHRIs. Then, SNHRIs could be accredited in the same way that NHRIs currently are, and those that comply with the terms of these new principles could be granted membership in the Global Alliance of National Human Rights Institutions (GANHRI) (Wolman, 2015b). This would at once provide qualifying SNHRIs with the considerable socialization benefits and increased international access that NHRIs receive through GANHRI membership, while also providing a clear incentive for SNHRIs to maintain their independence, pluralism, and effectiveness, in order to qualify for full GANHRI accreditation.

Conclusion

Although my research takes the first step towards exploring the relationships between SNHRIs and other actors and norms, more work is needed to flesh out these relationships. It would be particularly interesting to examine the links between SNHRIs and local civil society organisations, for example, and the role of SNHRIs in implementing economic and social rights.

While they often pass under the academic radar, SNHRIs have the potential to contribute to locally relevant human rights implementation in many parts of the world, and to provide new perspectives and objective local information to national and international actors. They should be designed so as to add value to existing human rights mechanisms and avoid redundancy, so that all sub-national, national, and international human rights actors can work together towards the common goal of promotion and protection of international human rights norms.

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Meet the Author

Andrew Wolman is a professor of human rights and international law at the Graduate School of International and Area Studies at Hankuk University of Foreign Studies, in Seoul, Korea, and a member of the Law and Development Research Group at the University of Antwerp Faculty of Law.