We are delighted to welcome this guest contribution from Professor Fionnuala ní Aoláin, Associate Dean at University of Minnesota School of Law, Associate Director of the Transitional Justice Institute (UU) and former Commissioner on the Irish Human Rights Commission.
Why the Appointment Process to the Irish Human Rights Commission Matters
The Irish Human Rights Commission consists of a President and 14 other members. Commissioners are appointed for a term of five years. The present Commission started its term in October 2006, and as the appointment process for a new Commissioners to the Irish Human Rights Commission is pending, my comments reflect on the importance of a transparent, accountable and human rights compliant appointment process. It also challenges that process to encourage and support meaningful diversity in the appointments to the Commission, so that our Human Rights Commissions reflects the strengths of human rights expertise, and is not an elitist body with a narrow connection to Irish society, particularly those who experience human rights violations at the cold face.
Ireland, like numerous other western democratic states is a signatory to the major international human rights treaties, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. It is also bound by human rights obligations that arise in the sphere of customary international law, including for example those parts of the Universal Declaration that have customary status. What this means is that treaty obligations require states to take and enforce domestic measures that will advance the protection of human rights, thereby doubly fulfilling the international obligations of the state. For example the European Convention of Human Rights requires (in Article 1) that:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms outlined in section 1 of this Treaty.
The International Covenant on Civil and Political Rights Article 2 to which Ireland is a signatory mandates that:
Each state party to the present Covenant undertakes to respect and to ensure to all the individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant …
When states appear before international monitoring bodies, the focus of attention is what measures and institutions the contracting state has put in place to defend its human rights treaty obligations. Quite simply, many states have recognised that one of the most expedient means of being seen to implement those international standards is to put in place domestic institutions supported by government, taking primary responsibility for various aspects of human rights protection within the state. The merits of Human Rights Commissions are two fold 1) To create genuine and accountable domestic bodies with legal and political responsibility for the enforcement of human rights 2) To discharge international obligations in respect of human rights.
But despite their potential problems have invariably emerged. They include:
- Governments create nominally independent bodies, with few powers and continue to exert political control over the issues that lead to and may be responsible for human rights violations.
- Human Rights Commissions become a means to co-opt the critics of the state, but a lack of power and independence leaves no scope for changing/moulding government policy.
- Human Rights Commissions are a window dressing exercise masking a lack of commitment to eradicating the causes of human rights violations within the state.
- Lack of funding makes the mandate of a Human Rights Commission impossible to discharge and therefore meaningless.
- In some states, appointments have been characterized by cronyism and ‘insider’ dealings, with few genuinely independent voices included by government controlled processes.
In response to the possibility of manipulation in the creation of National Human Rights Institutions the Paris Principles came into being. The Paris Principles are ‘soft-law’ legal norms. The Principles are not binding treaty law. However, as with many such ‘soft-law’ standards there is an ongoing evolution to ‘hard-law’ or customary status. Moreover, they represent a general consensus, translated into standards that functions as a guide to the behaviour of states in this arena. In thinking about the appointment process to the Irish Human Rights Commission I encourage the Minister to fulfil the expectations of international ‘soft-law’ norms as well as to be cognizant of Ireland’s broader treaty obligations to respect and to promote respect for human rights.
Human rights violations occur within states. Ultimately, effective protection must also come from within the state, both to remedy a particular violation and to prevent future violations. The Human Rights Commission is an important institutional actor that should play an active role in preventing and responding to Human Rights violations at source. The central actors in that effort are the Commissioners appointed to the task. A Human Rights Commission is only as good as its Commissioners – this has been the lesson learnt world-wide. It is perhaps with some humility that those of us who have previously served on this Commission should advocate on the importance of independence and autonomy (both actual and perceived) of those appointed to such bodies. Equally it is vital that Human Rights Commissions have connection to and experience of human rights law and practice. Human Rights is a broad field, but the breadth and depth of human rights expertise in Ireland should be represented on any genuinely representative Commission. Finally, given the vulnerability and the lack of voice that those who are at the cold face of human rights violations in Ireland experience the Commissioners appointed should, in some fulsome measure, offer genuine connection and voice to those whose ability to advocate for themselves is muted.