WHAT WORKS IN HUMAN RIGHTS INSTITUTIONS?

Author:Linos, Katerina
 
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INTRODUCTION

Human rights treaties articulate ambitious international standards, but in many parts of the world, domestic practices lag far behind. In the post-World War II period, the vast majority of governments across the world adopted the language of fundamental rights; (1) signed and ratified key international human rights treaties; (2) incorporated equality provisions in their constitutions; (3) and developed domestic jurisprudence giving particular shape to these rights. However, human rights practices on the ground are at best uneven. (4)

To bridge the gulf between international law and domestic practices, in the early 1990s, the United Nations started promoting National Human Rights Institutions (NHRIs), independent national agencies specifically designed to protect and promote human rights. (5) The UN defines an NHRI very broadly, 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." (6) The 1991 Paris Principles, a UN General Assembly resolution calling on all states to adopt an NHRI, provided a template for NHRI design and precipitated institutional reforms in dozens of countries. (7) NHRIs spread very rapidly across diverse political systems, from an estimated twenty NHRIs in 1990 to approximately 121 active NHRIs in 2017, with more on the way. (8)

NHRIs are undoubtedly an important example of global administrative law and networked regulation more generally. (9) As NHRIs take center stage as a possible "missing link" in a transnational human rights regime, increasing attention is being paid to how they actually work, and crucially, when and why they matter. (10) Pioneering work by practitioners, (11) interventions by international non-governmental organizations (INGOs), (12) recent scholarly contributions, (13) and careful case study work on individual cases (14) all suggest that at least some NHRIs are contributing significantly to the improvement of human rights in their countries. NHRIs have assisted torture victims in seeking redress before domestic and international courts, stewarded truth and reconciliation processes, improved legislation protecting vulnerable groups, mediated social conflicts, and mobilized public opinion on environmental rights. (15) Some governments invested significant resources in building these institutions; case studies suggest that some employ hundreds of staff members, have dozens of regional offices, and operate on multimillion dollar annual budgets. (16) Indeed, the one existing large-N study of NHRIs also offers reason for hope, as it concludes that adopting an NHRI reduces physical integrity violations. (17) But in other countries, there are significant concerns that states built "sham" NHRIs in response to international pressure, without granting them the powers to carry out their monitoring tasks. (18)

To understand what makes some NHRIs particularly effective, and others less so, we start by focusing on formal institutional design safeguards. These formal safeguards include provisions intended to guarantee the body's independence (e.g., provisions for the appointment and removal of NHRI leaders), as well as provisions oudining specific tasks that fall within an NHRI's mandate (e.g., provisions that the NHRI can visit prisons or receive individual complaints). We term these features "safeguards" because they can help protect an active NHRI from efforts to change its leadership or structure, as well as from allegations that it exceeded its mandate. We term these features "formal" because they are found in writing in legal documents--typically in an NHRI's charter, which can in turn form part of a national constitution, legislation, or executive decree. We thus contrast formal safeguards with informal arrangements, oral agreements, and societal norms that could also contribute to institutional effectiveness. Based on extensive consultation with scholars and practitioners, we compiled a list of twenty-two such features that could contribute to NHRI effectiveness, and outline how each could operate in theory in Part I below.

We focus on formal design because a large literature in administrative law suggests that agencies with formal safeguards are often more effective than agencies that lack them. Administrative law scholarship suggests that politically independent bodies can potentially facilitate expert and nonpartisan decision making, stabilize policymaking against electoral cycle volatility, and protect politically disadvantaged minorities. (19) In addition, institutional design safeguards provide the international community--the principal backer of NHRIs--with an important lever of influence. The UN can neither directly appoint NHRI staff members nor contribute significantly to NHRI budgets, but the UN has strongly recommended specific institutional safeguards, and has granted speaking rights and special status to select NHRIs. (20) Finally, NHRI practitioners suggest and case study authors argue that certain configurations of safeguards are critical to the success of these bodies. (21)

That said, we need to learn a great deal more about which institutional design rules will matter, and under what circumstances. After all, designing effective institutions is challenging in any context; the compliance gap separating formal rules from their implementation on the ground has motivated a vast institutional literature across law, political science, sociology, and economics. (22) The gap between formal design choices and organizational effectiveness could be especially severe in the human rights context. This is because NHRIs are intended to work as checks on the government that set them up; indeed, many countries set up NHRIs in response to severe international criticism of their human rights practices, and authoritarian leaders might be reluctant to set up too strong a monitoring body. (23) A main theoretical contribution of our project is to marry general administrative law theories--often developed with a focus on industrialized settings--with specific intuitions from the NHRI community, and to develop and test a range of theoretical conjectures.

In Part I, we develop three interconnected theoretical arguments, about whether, when, and why institutional safeguards matter. To develop theoretical claims, we draw heavily on the administrative law and politics literature, which is well-developed for industrialized settings, and in particular the United States, and build on it to explain how particular claims might or might not apply to the human rights setting in diverse types of countries. First, we theorize that NHRIs with more independence guarantees, with a broader formal mandate--including investigatory and promotional powers--and with greater inclusiveness provisions are more effective than those that lack these safeguards. Our second hypothesis is that context matters: formal institutional design is most likely to translate directly to improved outcomes in stable democracies that follow the rule of law, but should still influence decisions in authoritarian and transition regimes. Third, we try to explore theoretically why institutional design should matter for NHRI effectiveness, even in such challenging regime settings. We theorize that institutional design safeguards could influence NHRI priority-setting and staffing choices, shape modes of resistance toward independent agencies tasked with holding government to account, and contribute to positive (or negative) feedback loops, linking the NHRI to civil society and the media over time.

We then explore these claims empirically to understand variation in the effectiveness of NHRIs around the world. To offer the first systematic assessment of NHRI effectiveness, we triangulate across three types of measures. To assess NHRI effectiveness quantitatively, we start with the grade awarded to NHRIs by an NHRI peer review network. We supplement this grade with original expert survey data, in which thirty-six experts from around the world assessed the effectiveness of NHRIs with which they were familiar. Following past best practice in scholarship on administrative agencies, (24) both our quantitative measures focus on the agency itself, rather than capturing country-level human rights performance that could be attributed to the executive, the legislature or the judiciary, among others. We supplement these aggregate measures of effectiveness with detailed qualitative case studies that can separate out different dimensions of agency effectiveness, by assessing, for instance, whether an NHRI was effective at resolving individual complaints but less effective at triggering legislative change, or perhaps attracted extensive publicity to certain human rights issues while shying away from matters the executive considered sensitive. Each of these measures has important advantages and limitations, which we develop below. Nevertheless, by collecting data that is much more extensive than prior work in comparative administrative law, and by triangulating across different types of source materials, we make significant progress on the question of agency effectiveness.

In Part II, we present quantitative analyses. To conduct quantitative analyses, we compiled an original dataset of twenty-two institutional design features of NHRIs in 107 countries. This reflects significant improvement on prior quantitative work that compares the presence of an NHRI to the absence of such a body, but has less to say about different types of NHRIs. (25)

In Part III, we assemble our case study evidence to assess the plausibility of various causal propositions and probe inductively the impact of specific design mechanisms on NHRI behavior and outcomes. (26) To assess the importance of investigatory safeguards we compare Peru's NHRI, which has such mechanisms, with Chile's NHRI, which lacks...

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