Human Rights Commissions: A Unique Role to Play, Now and in the Future
By Brice Dickson
After just over a year in office as the Chief Commissioner of the newly established Northern Ireland Human Rights Commission (NIHRC), I realize that human rights commissions (HRCs) around the world occupy a curious position. On the one hand, they are respected as independent institutions that governments themselves create to determine how best to protect human rights in a particular society. On the other hand, they are perceived by some as being too close to government to adopt a totally objective stance on human rights issues; nongovernmental organizations (NGOs), for instance, are often critical of HRCs for not being radical enough in their pronouncements.
The truth is, HRCs have a unique role to play, one that will continue to be important well into this new century and one that is supplementary to those played by governments and NGOs. The role is perhaps best summed up in the acronym REAL-reviewing, educating, advising, and litigating.
HRCs' REAL Role
The reviewing role is one that requires the HRC to scrutinize existing law and practice to assess whether they conform with international rules and principles for the protection of human rights. If they do not, the HRC can publicize this fact in both national and international forums.
The educating role requires HRCs to enhance people's awareness of how important human rights are to a healthy and peaceful society. It may also require HRCs to think creatively about how human rights standards can be made to fit with certain cultural and religious practices.
Advising is what HRCs do best. Usually, the expertise of the people appointed as commissioners will ensure their views are taken seriously by governments. HRCs can also easily enlist the support of other influential opinion makers when presenting their views.
But it is perhaps the litigating role of HRCs that is most critical to the special part they play. Bodies other than HRCs, such as NGOs, can litigate human rights issues, depending on the national law relating to standing before the court; but the fact that HRCs are invariably set up-by legislative if not by constitutional provisions-to promote and protect human rights surely gives their litigating power all the more force. Strangely, the Paris Principles of 1991, which set benchmarks for national human rights institutions and were approved by the United Nations General Assembly in 1993, do not themselves require HRCs to have litigating power. Nevertheless, many of those created around the world, especially in common law jurisdictions, do have it.
HRCs as Litigators
There are three ways in which an HRC can litigate, depending on the wording of its governing statute. First, it might support individual applicants by paying for their legal representation. Second, it might take cases to court in its own name, without having to rely on the initiative of others. Third, it might intervene in court proceedings, commenting to judges on the relevance of international human rights standards to the case at hand.
To my knowledge, HRCs in the United States, whether state- or citybased, tend to have all of the above litigating powers. National HRCs outside of the U.S. sometimes have the third power, less frequently have the first, and rarely have the second. The NIHRC, I am glad to say, has all three. Deciding how to use whatever powers it has is a difficult determination to make. Litigation is a risky business. It can be expensive, and there is no certainty that costs incurred will be recouped in the award of a favorable decision. Also, judgments issued pursuant to litigation may not always satisfactorily clarify points at issue and often they have a limited application to future cases. Moreover, procedural matters, such as wrangles over limitation periods or standing issues, can frequently intrude and sidetrack the court from more important substantive issues.
If the European experience is any indication, though, litigation is by far the best way to achieve change on the human rights front. It may be difficult for a non-European to realize just how large a role the European Court of Human Rights plays in shaping government policy throughout the Continent. It can hear cases arising out of any of the forty-one countries in the Council of Europe. However, all the reviewing, educating, and advising in the world could not have brought about the reforms for which the European Court has been responsible in the last three decades. For example, it has ensured the abolition of corporal punishment in schools, the right of prisoners to engage in private correspondence, the right of gay men to have custody of a child, and the right of victims of police violence to have an effective remedy. With a full-time court in operation since November 1998, the number of judgments issued has soared. In 1999, there were 170; that figure has already been doubled for 2000. The United Kingdom's highest court, the House of Lords, issues only about sixty. More than 20,000 applications per year for hearings before the court are being filed in Strasbourg where the Court is headquartered.
And yet the European experience also carries with it a hard lesson. The Court is a victim of its own success: judges and lawyers cannot cope with the heavy workload, and the backlog of cases continues inexorably to rise. The day must soon come when the European Court will be even more selective than it already is in choosing its cases. It must devise methods for dealing with
countries in which the same charges arise time and again, with no apparent effort being made by the offending countries to change their domestic practices. This problem is exemplified by Italy and the Ukraine, where the former has repeatedly experienced a recurrence of lengthy delays in civil and criminal proceedings and the latter is routinely in trouble for its treatment of prisoners.A Balancing Act
The challenge for the NIHRC and other HRCs around the world is to strike the right balance between litigation and other activities. If the primary goal is to raise the profile of an issue, not to win the case, then litigation may be an attractive strategy, especially if the European Court is involved. If a quick and favorable result is what really matters, then litigation may be less effective than persuasive lobbying, intensive media campaigns, or well-targeted international pressures.
Most importantly, HRCs must look to each other for examples of how to function most efficiently.
If the HRCs are going to maintain their unique and important role as we progress into this new century, they must continue to evaluate their work carefully to detect what actions are most effective.
Brice Dickson is the Chief Commissioner of the Northern Ireland Human Rights Commission in Belfast, Northern Ireland.
Author's Note: I welcome comments from anyone who has had experience working with an HRC. Please contact me at nihrc@belfast.org.uk.
