Understanding National Human Rights Protection Systems

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NAME
 OF THE COURSE
DATE
 
 
 
ACTORS, FRAMEWORK AND
PROCESSES
 
 
 
NATIONAL
HUMAN
RIGHTS
PROTECTION
 
LEARNING OBJECTIVES
 
* Participants understand the
importance of grasping the plurality
of actors within a national human
rights system
* Participants understand that there
is a domestic normative framework
that is instrumental when working
with a HRBA to development
* Participants reflect on how to link
programming work to domestic
actors and frameworks
 
NATIONAL
HUMAN
RIGHTS
PROTECTION
 
NATIONAL HUMAN RIGHTS SYSTEM
BASIS ESSENTIAL ELEMENTS (1)
 
States must respect their human rights
obligation
Little guidance about exactly how states should
do it
Independent courts
NHRI (Paris principles)
Human rights focal points (UPR, CRPD)
 
NATIONAL HUMAN RIGHTS SYSTEM
BASIS ESSENTIAL ELEMENTS (2)
 
* 
UN
: a national human rights protection system
consists of ‘legal frameworks, institutions,
procedures and actors’.
* 
EU
: the main elements of a national human
rights protection system as i) institutions (i.e.
mainly government and independent state
institutions at national and local level), ii)
domestic law, iii) policies on human rights and iv)
civil society and human rights defenders.
 
NATIONAL HUMAN RIGHTS SYSTEM
BASIS ESSENTIAL ELEMENTS (3)
 
Law and policy framework, such as
constitution, laws, National action plan
 
Actors, such as ministries, NHRI, courts, police,
NGO, academia
 
Processes such as law reform, reporting,
complaints handling, dialogue between actors,
consultations
 
NATIONAL HUMAN RIGHTS SYSTEM
BASIS ESSENTIAL ELEMENTS (4)
 
Paramount role of the state:
 
t
he establishment and
maintenance of core elements of the system – laws,
courts, parliaments, law enforcement, etc. – are the
responsibility of the state
 
Important role of non-state actors:
 
NHRS
fundamentally includes non-state actors and non-
state actions, e.g. in terms of human rights
education, awareness raising, independent oversight
and participatory processes by civil society.
 
PARAMOUNT 
ROLE OF STATE IN THE
REALISATION OF HR (1)
 
Human rights involve primarily relationships between
individuals and the State
 
The practical task of protecting and promoting human
rights is, in the first place, the one of the State
 
Other actors may indirectly interfere: private individuals ( a
man who batter his wife) or business enterprises (polluting
activities that poison people and destroy their health)
 
PARAMOUNT 
ROLE OF STATE IN THE
REALISATION OF HR (2)
 
Commitment of the State and compliance:
Problems of effective implementation at the national level
(
compliance gap
)
 
Unwillingness or lack of capacity
great deal of international interest and action.
attention on the importance of democratic institutions in
safeguarding the legal and political foundations upon
which human rights are based.
 
The effective enjoyment of human rights calls for the
establishment of 
national infrastructures 
for their protection.
 
NATIONAL HUMAN RIGHTS SYSTEM
OVERVIEW
 
1. Legal framework
2. State institutions
3. Procedures and processes
4. Programmes and policies
5. Active civil society
6. Other non-state actors
 
Practical case:
Daisy, Young, Brainy and Nosy
 
 
 
 
1. LEGAL FRAMEWORK
 
LEGAL FRAMEWORK (1)
CONSTITUTION
 
There are many ways to protect human rights in the
Constitution:
 
Preamble
Fundamental principles and values
Bill of Rights
Reference to international human rights law
Remedies and national human rights mechanisms
 
 
LEGAL FRAMEWORK (2)
CONSTITUTION/
 STRONG HUMAN RIGHTS
PROVISIONS
 
Reference to universal human rights obligations
 
Principle of non-discrimination
 
Right to effective remedy
 
Oversight and remedy mechanisms
 
Guarantee of independent and impartial judiciary
 
Establishment of human rights institutions (NHRI)
 
Prevalence of international norms over domestic law
 
Constitutional court, or similar institution
 
LEGAL FRAMEWORK (3)
9 CORE HUMAN RIGHTS TREATIES
 
 
Ratification of 
core human rights treaties
 (ICERD, ICESCR,
ICCPR, CEDAW, CAT, CRC, ICMW, CRPD and ICPPED)
 
 
Reservations
 to the human rights core international
instruments shall not be “incompatible with the object
and purposes of the treaty” (Art. 19, 1969 Vienna Conv.)
 
Limitation and derogation
 
LEGAL FRAMEWORK (4)
DOMESTIC LAW
 
In conformity with the human rights standards and
principles enshrined in international law
 
Establishes conditions which ensure the
implementation of all human rights standards
(frameworks for policies, governmental action, etc.)
 
Provides for effective implementation and monitoring
procedures and mechanisms
 
Establishes remedy and redress procedures
 
 
 
 
 
2. EFFECTIVE STATE INSTITUTIONS
 
EFFECTIVE STATE INSTITUTIONS (1)
 
Effective state institutions to promote and protect
human rights:
 
Government
Parliament
Administration of justice (& constitutional court)
Law enforcement agencies
Independent human rights body (NHRI and/or
ombudsperson) and other independent institutions
Central and local administration
 
 
EFFECTIVE STATE INSTITUTIONS (2)
 
Democratic and participatory institutions
 
Rule of law and of good governance
 
Sufficient resources and responsibility
 
 
PARLIAMENT
 
Ratification of international HR instruments
 
Adopting laws:
Ensure consistency of draft  and existing
laws with human rights standards
Ensure that laws and budgetary
allocation necessary for implementation
of human rights standards are adopted
 
Establishing necessary oversight capacities to monitor
the implementation of hr legislation by government
(institutions and funding)
 
GOVERNMENT (1)
 
Primary responsibility for implementing the human
rights obligations of the State: 
promote, respect,
protect and fulfil
 the rights
 
Elaboration of draft laws (including budgetary
proposals and executive acts)
 
Development and adoption of policies and
programmes which promote and protect HR
 
Creation of organs and bodies charged with specific
human rights tasks
 
GOVERNMENT (2)
 
Creation of organs and bodies charged with specific
human rights tasks within government:
 
Ministries (Prime minister, Justice, FAM, …)
 
Human Rights focal points (reporting, NAP, CRPD)
 
Inter-ministerial committees /coordination (reporting,
NAP)
 
CONSTITUTIONAL OR SUPREME
COURT
 
Two systems: Constitutional Court or Supreme Court
 
Independent institution, charged with the surveillance
of laws adopted by the Parliament and to rule on their
constitutionality and/or their conformity with
international human rights norms and standards
 
Review democratic procedures, such as elections
 
ADMINISTRATION OF JUSTICE
 
Independent judges, courts and prosecutors
 
Institutions administering justice make the legal guarantees
of HR work (rule of law): 
equality before the law,
presumption of innocence and right to a fair and public
hearing by a competent, independent and impartial
tribunal
Independent monitoring of the state’s human rights
obligations
Means for individuals to claim their rights
Ensuring remedies to the victims of human rights violations
 
+ independant 
legal counsels and right to legal representation
+ access to justice
 
LAW ENFORCEMENT
 
P
olice, sometimes military, prison administration,
border police, immigration authorities, secret services:
 
Essential guardians of human rights
Their particular competencies can become sources of
human rights violations
Ensure that these organs work in conformity with
human rights standards and their work is
independently monitored
 
 Resources, training and professional standards
 
CENTRAL AND LOCAL
ADMINISTRATION
 
Implement laws and Governments’ regulations
 
Set administrative procedures and practices
 
Interact with individuals
 
Internal monitoring (Administrative procedures of
recourse against administrative decisions )
 
Independent monitoring by courts or other
independent body (NHRI, Ombudsperson)
 
NATIONAL HUMAN RIGHTS
INSTITUTION (1)
 
NHRIs are state institutions which enjoy 
total
independence
 from the government and other state
entities and have competence to promote and protect
human rights (Paris Principles, par. 1)
 
National human rights commissions or ombudspersons
 
Establishment of specialised 
human rights institutions
(e.g. for children, minorities, etc.)
 
NATIONAL HUMAN RIGHTS
INSTITUTION (2)
 
NHRIs can both protect and promote human rights:
 
Report on the human rights situation in the country
Claims from individual or group where human rights
have been violated or are at risk of abuse
Human rights sensitization of public officials
Periodic reviews of laws and the administrative
practice on human rights issues
Linking with civil society
Human rights focal point (OP-CAT, CRPD)
 
 
 
 
3. PROCEDURES AND PROCESSES
 
PROCEDURES AND PROCESSES (1)
 
1. Redress for human rights violations
 
-Decision on violation, redress & compensation
 
-Equal access to justice
 
-Legal aid
 
2. Cooperation with international and regional HR
mechanisms
-
Reporting (UPR, other treaty-bodies, regional
institutions)
-
Follow-up on recommendations
-
Human rights focal point
 
 
PROCEDURES AND PROCESSES (2)
 
3. Adoption of human rights-based policy and
development programme planning
 
4. Participatory policy and decision-making processes
 
- All society actors
 
- Meaningful participation
 
- Marginalised groups included
 
 
 
 
4. PROGRAMMES AND POLICIES
 
NATIONAL ACTION PLANS (NAP)
 
A NAP enables a state to approach human rights in a
comprehensive manner
 
and should be seen as a
coordinating document 
that aims to address different
gaps in the overall national human rights protection
system
-
A NAP mobilises different actors
-
A NAP increases awareness of human rights
-
A NAP offers a framework that enables to monitor
progress in converting international human rights
standards to the national level
 
HR EDUCATION AND AWARENESS-
RAISING
 
Purpose: make that the public aware of their rights and
of avenues to claim their rights and seek remedies
 
HR 
education
 
in schools, universities and professional
education institutions
HR 
training
 for public officials and other relevant
professionals (judges, lawyers, law enforcement
officials, prison administration, development
specialists, teachers, medical and social workers,
immigration and refugee administrations, etc.)
Awareness-raising
 campaigns for the public at large.
 
 
 
 
5. ACTIVE CIVIL SOCIETY
 
CIVIL SOCIETY
 
An active and independent civil society:
 
NGO’s /Human rights defenders communities
Free and independent media
Private corporations that work in a responsible
manner
 
Civil society plays an important role in strengthening the
national protection system through:
Advocacy
Monitoring and reporting
Awareness-raising
Participation of all
 
CONCLUSION
 
Interaction between international and national level
 
Interaction between state actors at national level
 
Rule of law
 
Good governance
 
Sufficient resources
 
On-going dialogue between state and non-state
actors
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Explore the essential elements of national human rights protection systems including actors, frameworks, and processes. Learn about the foundational role of the state, legal frameworks, institutions, and the involvement of non-state actors in upholding human rights. Reflect on the importance of domestic normative frameworks and how they interplay with human rights-based approaches to development.


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  1. NAME OF THE COURSE DATE NATIONAL HUMAN RIGHTS PROTECTION ACTORS, FRAMEWORK AND PROCESSES

  2. LEARNING OBJECTIVES NATIONAL HUMAN RIGHTS PROTECTION * Participants understand the importance of grasping the plurality of actors within a national human rights system * Participants understand that there is a domestic normative framework that is instrumental when working with a HRBA to development * Participants reflect on how to link programming work to domestic actors and frameworks

  3. NATIONAL HUMAN RIGHTS SYSTEM BASIS ESSENTIAL ELEMENTS (1) States must respect their human rights obligation Little guidance about exactly how states should do it Independent courts NHRI (Paris principles) Human rights focal points (UPR, CRPD)

  4. NATIONAL HUMAN RIGHTS SYSTEM BASIS ESSENTIAL ELEMENTS (2) * UN: a national human rights protection system consists of legal frameworks, institutions, procedures and actors . * EU: the main elements of a national human rights protection system as i) institutions (i.e. mainly government and independent state institutions at national and local level), ii) domestic law, iii) policies on human rights and iv) civil society and human rights defenders.

  5. NATIONAL HUMAN RIGHTS SYSTEM BASIS ESSENTIAL ELEMENTS (3) Law and policy framework, such as constitution, laws, National action plan Actors, such as ministries, NHRI, courts, police, NGO, academia Processes such as law reform, reporting, complaints handling, dialogue between actors, consultations

  6. NATIONAL HUMAN RIGHTS SYSTEM BASIS ESSENTIAL ELEMENTS (4) Paramount role of the state: the establishment and maintenance of core elements of the system laws, courts, parliaments, law enforcement, etc. are the responsibility of the state Important role of non-state actors: NHRS fundamentally includes non-state actors and non- state actions, e.g. in terms of human rights education, awareness raising, independent oversight and participatory processes by civil society.

  7. PARAMOUNT ROLE OF STATE IN THE REALISATION OF HR (1) Human rights involve primarily relationships between individuals and the State The practical task of protecting and promoting human rights is, in the first place, the one of the State Other actors may indirectly interfere: private individuals ( a man who batter his wife) or business enterprises (polluting activities that poison people and destroy their health)

  8. PARAMOUNT ROLE OF STATE IN THE REALISATION OF HR (2) Commitment of the State and compliance: Problems of effective implementation at the national level (compliance gap) Unwillingness or lack of capacity great deal of international interest and action. attention on the importance of democratic institutions in safeguarding the legal and political foundations upon which human rights are based. The effective enjoyment of human rights calls for the establishment of national infrastructures for their protection.

  9. NATIONAL HUMAN RIGHTS SYSTEM OVERVIEW 1. Legal framework 2. State institutions 3. Procedures and processes 4. Programmes and policies 5. Active civil society 6. Other non-state actors Practical case: Daisy, Young, Brainy and Nosy

  10. 1. LEGAL FRAMEWORK

  11. LEGAL FRAMEWORK (1) CONSTITUTION There are many ways to protect human rights in the Constitution: Preamble Fundamental principles and values Bill of Rights Reference to international human rights law Remedies and national human rights mechanisms

  12. LEGAL FRAMEWORK (2) CONSTITUTION/ STRONG HUMAN RIGHTS PROVISIONS Reference to universal human rights obligations Principle of non-discrimination Right to effective remedy Oversight and remedy mechanisms Guarantee of independent and impartial judiciary Establishment of human rights institutions (NHRI) Prevalence of international norms over domestic law Constitutional court, or similar institution

  13. LEGAL FRAMEWORK (3) 9 CORE HUMAN RIGHTS TREATIES Ratification of core human rights treaties (ICERD, ICESCR, ICCPR, CEDAW, CAT, CRC, ICMW, CRPD and ICPPED) Reservations to the human rights core international instruments shall not be incompatible with the object and purposes of the treaty (Art. 19, 1969 Vienna Conv.) Limitation and derogation

  14. LEGAL FRAMEWORK (4) DOMESTIC LAW In conformity with the human rights standards and principles enshrined in international law Establishes conditions which ensure the implementation of all human rights standards (frameworks for policies, governmental action, etc.) Provides for effective implementation and monitoring procedures and mechanisms Establishes remedy and redress procedures

  15. 2. EFFECTIVE STATE INSTITUTIONS

  16. EFFECTIVE STATE INSTITUTIONS (1) Effective state institutions to promote and protect human rights: Government Parliament Administration of justice (& constitutional court) Law enforcement agencies Independent human rights body (NHRI and/or ombudsperson) and other independent institutions Central and local administration

  17. EFFECTIVE STATE INSTITUTIONS (2) Democratic and participatory institutions Rule of law and of good governance Sufficient resources and responsibility

  18. PARLIAMENT Ratification of international HR instruments Adopting laws: Ensure consistency of draft and existing laws with human rights standards Ensure that laws and budgetary allocation necessary for implementation of human rights standards are adopted Establishing necessary oversight capacities to monitor the implementation of hr legislation by government (institutions and funding)

  19. GOVERNMENT (1) Primary responsibility for implementing the human rights obligations of the State: promote, respect, protect and fulfil the rights Elaboration of draft laws (including budgetary proposals and executive acts) Development and adoption of policies and programmes which promote and protect HR Creation of organs and bodies charged with specific human rights tasks

  20. GOVERNMENT (2) Creation of organs and bodies charged with specific human rights tasks within government: Ministries (Prime minister, Justice, FAM, ) Human Rights focal points (reporting, NAP, CRPD) Inter-ministerial committees /coordination (reporting, NAP)

  21. CONSTITUTIONAL OR SUPREME COURT Two systems: Constitutional Court or Supreme Court Independent institution, charged with the surveillance of laws adopted by the Parliament and to rule on their constitutionality and/or their conformity with international human rights norms and standards Review democratic procedures, such as elections

  22. ADMINISTRATION OF JUSTICE Independent judges, courts and prosecutors Institutions administering justice make the legal guarantees of HR work (rule of law): equality before the law, presumption of innocence and right to a fair and public hearing by a competent, independent and impartial tribunal Independent monitoring of the state s human rights obligations Means for individuals to claim their rights Ensuring remedies to the victims of human rights violations + independant legal counsels and right to legal representation + access to justice

  23. LAW ENFORCEMENT Police, sometimes military, prison administration, border police, immigration authorities, secret services: Essential guardians of human rights Their particular competencies can become sources of human rights violations Ensure that these organs work in conformity with human rights standards and their work is independently monitored Resources, training and professional standards

  24. CENTRAL AND LOCAL ADMINISTRATION Implement laws and Governments regulations Set administrative procedures and practices Interact with individuals Internal monitoring (Administrative procedures of recourse against administrative decisions ) Independent monitoring by courts or other independent body (NHRI, Ombudsperson)

  25. NATIONAL HUMAN RIGHTS INSTITUTION (1) NHRIs are state institutions which enjoy total independence from the government and other state entities and have competence to promote and protect human rights (Paris Principles, par. 1) National human rights commissions or ombudspersons Establishment of specialised human rights institutions (e.g. for children, minorities, etc.)

  26. NATIONAL HUMAN RIGHTS INSTITUTION (2) NHRIs can both protect and promote human rights: Report on the human rights situation in the country Claims from individual or group where human rights have been violated or are at risk of abuse Human rights sensitization of public officials Periodic reviews of laws and the administrative practice on human rights issues Linking with civil society Human rights focal point (OP-CAT, CRPD)

  27. 3. PROCEDURES AND PROCESSES

  28. PROCEDURES AND PROCESSES (1) 1. Redress for human rights violations -Decision on violation, redress & compensation -Equal access to justice -Legal aid 2. Cooperation with international and regional HR mechanisms - Reporting (UPR, other treaty-bodies, regional institutions) - Follow-up on recommendations - Human rights focal point

  29. PROCEDURES AND PROCESSES (2) 3. Adoption of human rights-based policy and development programme planning 4. Participatory policy and decision-making processes - All society actors - Meaningful participation - Marginalised groups included

  30. 4. PROGRAMMES AND POLICIES

  31. NATIONAL ACTION PLANS (NAP) A NAP enables a state to approach human rights in a comprehensive manner and should be seen as a coordinating document that aims to address different gaps in the overall national human rights protection system - A NAP mobilises different actors - A NAP increases awareness of human rights - A NAP offers a framework that enables to monitor progress in converting international human rights standards to the national level

  32. HR EDUCATION AND AWARENESS- RAISING Purpose: make that the public aware of their rights and of avenues to claim their rights and seek remedies HR education in schools, universities and professional education institutions HR training for public officials and other relevant professionals (judges, lawyers, law enforcement officials, prison administration, specialists, teachers, medical and social workers, immigration and refugee administrations, etc.) Awareness-raising campaigns for the public at large. development

  33. 5. ACTIVE CIVIL SOCIETY

  34. CIVIL SOCIETY An active and independent civil society: NGO s /Human rights defenders communities Free and independent media Private corporations that work in a responsible manner Civil society plays an important role in strengthening the national protection system through: Advocacy Monitoring and reporting Awareness-raising Participation of all

  35. CONCLUSION Interaction between international and national level Interaction between state actors at national level Rule of law Good governance Sufficient resources On-going dialogue between state and non-state actors

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