E. UN Paris Principles, the ICC and the Committee on the Rights of the Child: NHRIs with a Children's Rights Focus Versus Thematic Children's Rights Institutions
Richard Carver takes the position that international and regional standards on single NHRIs versus multiple domestic human rights institutions are "either non-existent or contradictory". (88) He argues:
[I]n the absence of any clear position in international law, the sole criterion for determining the chosen organizational model should be the greatest effectiveness in promoting and protecting human rights ... generally the model of a single national human rights institution is likely to lead to greater effectiveness, provided that it is designed with inbuilt guarantees that the interests of particular vulnerable groups will not be neglected and will receive an appropriate level of priority. (89) However, evolving UN standards on and attitudes towards NHRIs and thematic children's rights institutions can be discerned. The CtRC is the UN human rights treaty committee that focuses on thematic children's rights institutions and NHRIs as domestic mechanisms for CRC implementation. This Article scrutinizes the UN Paris Principles as interpreted by the ICC in relation to ICRIs and the CtRC's position on the Paris Principles and ICRIs, including thematic children's rights institutions, as displayed in its General Comments and Concluding Observations to CRC state periodic reports. (90) This Article attempts to demonstrate that these standards and attitudes do favor the establishment of a single comprehensive NHRI that includes a focus on children's rights.
This Article does not explore in any detail the attitudes of other UN human rights treaty committees or the UN Human Rights Council Universal Periodic Review (UPR) process towards ICRIs in light of the Paris Principles as interpreted by the ICC. (91) Regional organizational standards and attitudes may also play a role in influencing state behavior. Most regions are clearly following the UN Paris Principles NHRI approach. (92) Europe, as the region with the highest concentration of thematic children's rights institutions, takes a more tolerant approach to the coexistence of NHRIs and thematic rights institutions, although even here there is an increasing tendency to favor and refer to broad-based NHRIs. (93) However, a detailed examination of regional developments is also beyond the scope of this Article.
The UN Paris Principles and the ICC: NHRIs Versus Thematic Children's Rights Institutions
The UN Paris Principles are the internationally recognized minimum standards for NHRIs. (94) The ICC was created to support the establishment and strengthening of NHRIs and towards this end it operates an accreditation process for institutions using the Paris Principles as the "international benchmark", with A-status accreditation denoting full compliance with the Paris Principles, B-status accreditation confirming partial compliance and C-status representing non-compliance with the Paris Principles. (95) As discussed further below, thematic children's rights institutions cannot obtain A-status accreditation.
Only ICC A-status accreditation of an NHRI opens the door to its full participation in UN human rights mechanisms, including speaking privileges before the Human Rights Council, such as during the UPR process. (96) For example, while children's Change: Assessing National Human Rights Institutions 93, 105 (Ryan Goodman & Thomas Pegram eds., 2012) (discussing participation by NHRIs in Human Rights Council processes provided they have ICC A-status accreditation); Katrien Meuwissen, NHRI Participation to United Nations Human Rights Procedures: International rights are an important part of the UPR, since thematic children's rights institutions cannot obtain ICC A-status accreditation they only can make written submissions to the UPR. (97) Thus, although thematic children's rights institutions can contribute to the information gathering, they "cannot directly participate in discussions. They are consequently unable to be vocal in official child rights debates. ..." (98) The Paris Principles require that NHRIs have a broad mandate "to promote and protect human rights" that is enshrined in the constitution or legislation, be independent from government, have a pluralist composition, both promote and protect human rights through numerous listed responsibilities, enjoy adequate funding and cooperate with international organizations and other NHRIs. (99) The Paris Principles are based on an advisory human rights commission model and do not require states to give NHRIs the power to undertake individual complaints-based investigations. (100) The ICC has issued a number of General Observations that it calls "interpretative tools of the Paris Principles" that give more detail to the meaning and scope of Principles" that give more detail to the meaning and scope of committee General Comments). (101) The General Observations are used: in the NHRI accreditation, reaccreditation and special review procedures; to instruct NHRIs on the development of their own processes and mechanisms to ensure Paris Principles compliance; and to persuade governments to change laws and practices as may be needed to comply with the standards contained in the General Observations. (102) It is stated that "[i]f an institution falls substantially short of the standards articulated in the General Observations, it will be open for the [ICC] to find that it was not Paris Principle compliant." (103)
While both the Paris Principles and the ICC General Observations are soft law norms, the ICC has stated:
The establishment and strengthening of National Institutions pursuant to the Paris Principles falls within the set of international human rights commitments made by States. It is therefore the responsibility of the State to ensure that it has in place a Paris Principle-compliant national institution. (104) In May 2013, the ICC placed its General Observations into categories, one of which, "Essential requirements of the Paris Principles", contains those General Observations that are "direct interpretations of the Paris Principles" and another, "Practices that directly promote Paris Principles compliance", includes those General Observations "which are drawn from the [ICC's] extensive experience in identifying proven practices to ensure independent and effective National Institutions in line with the Paris Principles." (105) A third category addresses "Procedural issues". (106) Further, the ICC has stated that it will apply its General Observations to "every National Institution, regardless of its structural model type", thereby including not just all types of human rights commissions/institutes but also, for example, all types of human rights ombudsman institutions. (107) However, as discussed further below, in the Paris Principles as interpreted by the ICC, "national institution" or NHRI does not mean "domestic institution", it means "national-level" human rights institution and does not include sub-national institutions.
The Paris Principles require that a national institution "shall be vested with competence to promote and protect human rights" and "shall be given as broad a mandate as possible". (108) ICC General Observation 1.2, classified under essential requirements of the Paris Principles, takes this further, stating that the institution's mandate should be interpreted broadly to "promote a progressive definition of human rights which includes all rights set out in international, regional and domestic instruments, including economic, social and cultural rights." (109)
Also, the Paris Principles require NHRIs to "[m]aintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights (in particular ombudsmen, mediators and similar institutions)." (110) While the Paris Principles do not expressly exclude thematic rights institutions, this is implied by the Principles' tenor. Further, ICC General Observation 1.5 on "Cooperation with other human rights bodies", classified under essential requirements of the Paris Principles, is more explicit, stating:
Regular and constructive engagement with all relevant stakeholders is essential for NHRIs to effectively fulfil their mandates. NHRIs should develop, formalize and maintain working relationships, as appropriate, with other domestic institutions established for the promotion and protection of human rights, including sub-national statutory human rights institutions, thematic institutions, as well as civil society and nongovernmental organizations. (111) While there is nothing explicit in the Paris Principles on the number of NHRIs that a state should maintain, it can be argued that the Paris Principles implicitly consider that a nation will have only one NHRI given references to the broad mandate of the institution. ICC General Observation 6.6, classified as a procedural issue, avoids taking a legal position on the matter. However, in essence General Observation 6.6 does indicate that the ICC favors one comprehensive NHRI to the exclusion of thematic and other human rights institutions, as it "acknowledges and encourages the trend towards a strong national human rights protection system in a State by having one consolidated and comprehensive national human rights institution". (112) Also, General Observation 6.6 stipulates that only in very exceptional circumstances will more than one national institution in a nation be accredited by the ICC. (113) Of the 106 NHRIs accredited by the ICC by May 2014, only six of the many thematic human rights institutions around the world had applied for and received ICC accreditation, and most are located in countries where there is no broad-based NHRI. (114) No independent children's rights institutions were accredited. Of the six accredited thematic institutions, none had A-status...